By Elizabeth Pandolfi

Since 2017, federal credit unions across the nation have been on the receiving end of a rush of lawsuits and complaints regarding an issue that many businesses aren’t even aware of: website accessibility in relation to the Americans with Disabilities Act (ADA). 

In fact, there have been so many of these complaints that the National Association of Federal Credit Unions (NAFCU) has named ADA website litigation as one of their top legislative and advocacy issues.

“Starting in about 2017, we’ve seen a wave of demand letters, mostly from one law firm in particular, arguing that credit unions had to comply with private standards on website accessibility,” says Carrie Hunt, the NAFCU’s executive vice president of government affairs and general counsel. “And while our credit unions absolutely believe in the ADA and making sure their services are available to disabled people, many of these lawsuits are not valid suits.”

The reason this litigation is able to come forward is mainly due to a lack of clear federal regulation regarding websites under the ADA. What does exist is a set of standards called the Website Content Accessibility Guidelines 2.1 (WCAG 2.1). 

While many people are probably familiar with certain physical accessibility standards, like wheelchair ramps and accessible parking spots, accessibility in terms of web design is less well-known. 

Essentially, an accessible website is one that can be read in its entirety by a screen reader—a piece of assistive technology that reads webpages out loud. Although the technology was originally designed for people who are blind or have a visual impairment, screen readers are also helpful for people who are illiterate or have a learning disability. 

While the WCAG standards are not enforceable under the Department of Justice—in other words, they’re not specifically laid out in ADA regulations—they are the generally agreed-upon standards for website accessibility used across industries. 

As it says in the NAFCU’s Issue Brief on ADA Website Litigation, “A regulatory void exists due to ambiguities in the law regarding website accessibility requirements, and well-intentioned credit unions are being exploited by opportunistic plaintiffs’ attorneys.” The NAFCU is currently pushing the Department of Justice to remedy this by issuing a clear set of federal guidelines.

However, according to Robbie Kopp, director of advocacy and community access at the Columbia-based nonprofit Able South Carolina, the problem credit unions are currently facing is mainly due to one thing: accountability. 

“We’ve seen a lot of characterization of these lawsuits as frivolous, but frankly if businesses held their IT folks accountable, we wouldn’t have these,” he says. WCAG standards are widely recognized and available for anyone to access, he continues. 

Kopp and his team see this issue frequently, as Able SC conducts web accessibility assessments as part of their consulting services. (Able SC does charge a fee for assessments to cover their costs.) 

“There are a lot of institutions that are really focused on getting this right. We recently had a nationally recognized financial institution come to our office and do a focus group with users using assistive technology,” Kopp says. “There are so many resources and tools out there if they’re trying to get it right.” 

Several South Carolina-based credit unions, including SC Telco Federal Credit Union, Anderson Federal Credit Union, and Palmetto First Federal Credit Union, among others, are using these tools to monitor and improve their site accessibility, according to the Accessibility Statements on their websites. 

Credit unions are not the first group of businesses to be the subject of ADA website litigation. According to Hunt, merchants, hotels, ski resorts, and banks have also been sued in large groups over website accessibility. 

If a credit union is sued, she says, her organization advises them to work with their general counsel to decide the best course of action. “Steps to take include conducting an internal assessment and analysis of the website, and looking at case law in the particular jurisdiction,” Hunt says. “It depends a lot on the courts and what they’ve said regarding website accessibility whether or not a credit union will decide to pursue the suit.”