January 03, 2018

DOJ reconsidering need for ADA rules; NAFCU amicus filing accepted

The Department of Justice (DOJ) last week withdrew four advance notices of proposed rulemaking (ANPRs) related to the Americans with Disabilities Act (ADA) – including two that dealt with the accessibility of web information – citing the need for further review. Credit unions and other institutions have faced a rash of lawsuits in the past year related to website accessibility.

The DOJ first published an ANPR regarding web accessibility for state and local government entities, which falls under Title II of the ADA, and public accommodations, which falls under Title III, in 2010. It subsequently separated the rulemaking into two parts, one addressing state and local governments and the other focused on public accommodations. It is withdrawing both ANPRs to further evaluate whether promulgating regulations on the accessibility of web information and services is necessary and appropriate. In its original comments on the ANPR, NAFCU urged that any final rule not place additional burdens on credit unions.

NAFCU and its members strongly support the protections of the ADA and efforts to ensure individuals with disabilities are not discriminated against and have equal access to financial services. NAFCU has been active on ADA as frivolous lawsuits filed under the ADA and targeting credit unions have increased in recent months:

  • The U.S. District Court for the Eastern District of Virginia accepted the amicus brief submitted by NAFCU last month in support of a credit union's motion to dismiss a complaint filed against them under the ADA.
  • The National Association of Attorneys General responded to Executive Vice President of Government Affairs and General Counsel Carrie Hunt December letter bringing attention to the lack of guidance for financial institutions in meeting accessibility standards under the ADA.
  • In November, the association sent a letter to the DOJ urging it to move forward with proposed rulemaking to clarify the act's standards and protect credit unions from undue burdens.
  • NAFCU has asked Congress to take action. A NAFCU-supported bill – the ADA Education and Reform Act of 2017 (H.R. 620) – would set conditions for filing civil actions over the failure to remove an architectural barrier to an existing public place, among other things. NAFCU is actively working to expand the bill's protections to also cover website lawsuits.
  • NAFCU has been offering resources to members on this issue, including webcasts and best practices from in-house compliance and legal experts, as well as monthly publications to help member credit unions identify the risks involved so they can make informed business decisions.

Hunt and NAFCU Vice President of Regulatory Compliance Brandy Bruyere have also reached out to credit unions facing litigation to offer guidance and solutions. Bruyere covered this issue in the association's Compliance Monitor last year; the article is available on NAFCU's website.