TBA Law Blog

Posted by: Kathryn Edge on Apr 1, 2018

Journal Issue Date: Apr 2018

Journal Name: April 2018 - Vol. 54, No. 4

The Americans with Disabilities Act (ADA) prohibits discrimination against people with disabilities. Once that was generally understood to mean that businesses, including banks and credit unions, were required to install wheelchair-accessible ramps, make sure that all services provided to customers were on one level of the building or accessible by elevator, and that ATMs were equipped so that individuals with visual impairments could access those automated services.

Any time a financial institution communicates with or does business with an individual who is blind, has low vision or another visual disability, the ADA requires that it must provide documents and other printed materials in an accessible format. Under the Trump-Sessions administration, the Department of Justice Office of Civil Rights on Dec. 26, 2017, withdrew its notice of proposed rulemaking relative to certain sections of the ADA — specifically website accessibility. The stated purpose of the withdrawal was to give the DOJ more time to evaluate “whether promulgating regulations about the accessibility of Web information and services is necessary and appropriate.” While the DOJ has taken the public position that the ADA applies to websites, it has not yet promulgated regulations. Efforts to establish regulations began as early as 2010.

Under 2011 guidance published by the DOJ, banks and credit unions are designated as Title III entities — businesses and nonprofit organizations that serve the public. Title III entities must provide auxiliary aids and services when needed to communicate effectively with people who have communication disabilities.

Auxiliary Aids and Services

For people who are blind, have vision loss or are deaf-blind, an auxiliary aid or service includes providing a qualified reader, information in large print, Braille, or electronically for use with a computer screen-reading program; or an audio recording of printed information. A “qualified” reader means someone who is able to read effectively, accurately and impartially, using any necessary specialized vocabulary.

For people who are deaf, having hearing loss or are deaf-blind, this includes providing a qualified note taker; a qualified sign language interpreter, oral interpreter, cued-speech interpreter or tactile interpreter; real-time captioning; written materials; or a printed script of a stock speech. A “qualified” interpreter means someone who is able to interpret effectively, accurately and impartially, both receptively (i.e., understanding what the person with the disability is saying) and expressively (i.e., having the skill to convey information back to that person) using any necessary specialized vocabulary.

For persons who have speech disabilities, this may include providing a qualified speech-to-speech transliterator (a person trained to recognize unclear speech and repeat it clearly), especially if the person will be speaking at length or just taking more time to communicate with someone who uses a communication board. In some situations, keeping paper and pencil on hand so that the person can write out words that staff cannot understand or simply allowing more time to communicate with someone who uses a communication board or device may provide effective communication.

In addition, aids and services include a variety of technologies, such as assistive listening systems and devices; open captioning, closed captioning, real-time captioning, and closed caption decoders and devices; telephone handset amplifiers, hearing-aid compatible telephone, text telephones, videophones, captioned telephones, and other voice, text and video-based telecommunications products; videotext displays; screen reader software, magnification software, and optical readers; video description and secondary auditory programming devices that pick up video-described audio feeds for television programs; accessibility features in electronic documents and other electronic and information technology that is accessible (either independently or through assistive technology such as screen readers).

Title III entities are required to accept telephone calls placed through TRS (telecommunications relay service) and VRS (video relay service), and staff who answer the telephone must treat relay calls just like any other call.

The business must decide what aid or service is needed to communicate effectively considering the nature, length, complexity and context of the communication as well as the person’s normal method(s) of communication. Methods that may be effective in a fast food restaurant may not be the right solutions for a bank.

Companions and Interpreters

In some situations, a person with a disability will bring someone with them to a business through whom the business may communicate. When a person who is hearing-impaired orders from the menu at a restaurant through a companion, there should be no issues associated with the business taking the order. But query whether a bank, used to keeping the business of its clients completely confidential, will feel comfortable taking instructions from an interpreter or other companion on behalf of the bank’s client. The DOJ guidance (which is not a rule) provides that in an emergency situation involving an imminent threat to the safety or welfare of an individual or the public, an adult or minor child accompanying a person who uses sign language may be relied upon to interpret or facilitate communication only when a qualified interpreter is not available. In situations not involving an imminent threat, an adult accompanying someone who uses sign language may be relied upon to interpret or facilitate communication (i) when the individual requests the assistance; (ii) the accompanying adult agrees; and (iii) reliance on the accompanying adult is appropriate under the circumstance. Even under the foregoing exception, covered entities may not rely on an accompanying adult to interpret when there is reason to doubt the person’s impartiality or effectiveness. For example, in a situation in which a bank may believe that the interpreter has a vested financial interest in the communication being delivered, the bank may determine that the proffered interpreter is not appropriate.

Who Decides Which Aid or Service Is Needed?

Primary consideration must be given to the individual requesting the aid or service. The covered entity must honor the person’s choice unless it can demonstrate that another equally effective means of communication is available or that the use of the means chosen would result in a fundamental alteration or an undue burden. Title III entities are encouraged to consult with the person with a disability to discuss in advance what aid or service is appropriate. The goal is to provide an aid or service that will be effective, given the nature of the communication and the person’s method of communicating. Businesses and nonprofits must take into consideration the nature and cost of the aid or service relative to their size, overall financial resources and overall expenses. In general, a bank such as Bank of America would be expected to do more to ensure effective communication than a small community bank with fewer resources.

What to Do Until There Are Rules?

It is unclear whether the DOJ will reinitiate its proposed rulemaking process during the current administration, but with or without rules, the ADA, as interpreted by some (but not all) courts, continues to apply to written communications, including websites. Despite the delay in promulgating regulations, businesses should not delay their plans for making their websites publicly accessible. Even if this DOJ does not bring actions based on allegedly inaccessible websites, private litigants may do so.

Companies should not fail to evaluate the costs and potential benefits of implementing website accessibility sooner than later — and consider the lost business opportunities available from disabled clients who may be unable to navigate their websites or mobile applications.

Katie Edge KATHRYN REED EDGE is a member in the Nashville office of Butler Snow LLP with offices in Tennessee, Mississippi, Alabama, Colorado, Pennsylvania, Georgia, Louisiana, New York, New Mexico, Hong Kong, Singapore and London, England. She is a member of the firm’s Regulatory and Government Relations Group and concentrates her practice in representing regulated financial services companies. She is a past president of the Tennessee Bar Association and a former member of the editorial board for the Tennessee Bar Journal.