I. COVERAGE AND EFFECTIVE DATES
Public accommodations are private entities that affect commerce. The ABA public accommodations requirements extent, therefore, to a wide range of entities, such as restaurants, hotels, banks, theaters, doctors offices, pharmacies, retail stores, museums, libraries, parks, private schools, and day care centers. Most of the public service and public accommodations became effective on January 26, 1992.
II. DISABILITY DEFINED
In planning your bank’s compliance efforts to ensure that you have fully considered the accessibility of your institution and its services to ALL types of disabled persons, the definition of “disability” becomes significant.
Under the ADA, a person is disabled if he or she: (1) has a physical or mental impairment that “substantially” limits one or more “major life activities”; (2) has a record of such an impairment; or (3) is regarded as having such an impairment (even if he or she does not, in fact, have it).
The “major life activities” described above, include caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working, and participating in community activities. The obvious long-recognized disabilities such as paralysis, loss of hearing and/or vision, speech impediments, cancer, heart disease and epilepsy plainly are covered. Individuals with diabetes, aids, cancer, dyslexia, multiple sclerosis and cerebral palsy would likewise be entitled to the protections provided under the ADA.
III. PUBLIC ACCOMMODATION – ACCESS TO GOODS AND SERVICES
Title III of the ADA prohibits denying the full and equal enjoyment of “goods, services, facilities, privileges, advantages, or accommodations” to individuals with disabilities by any person who owns, leases, leases to or operates a place of “public accommodation.” Banks are specifically contained in the laundry-list definitions of “public accommodation.” The phrase “full and equal enjoyment” does not require that disabled individuals must receive the same goods and services at all times. Rather, they must be given equal opportunity to receive the same goods and services in an integrated setting, unless doing so would pose a health or safety threat to others.
Title III addresses not only access to banking facilities, but also to banking services and products. In other words, deposit account activities (checking, savings, etc.), loan activities (both retail and commercial) and other banking services (safe deposit, ATMs, wire transfers, etc.) are to be made accessible to individuals with disabilities.
A. Discrimination in Services
The term “discrimination” includes making reasonable modifications to a bank’s policies, practices or procedures that are necessary to provide its services to the disabled. The only recognized grounds for refusal to make reasonable modifications are when such would “fundamentally alter the nature of the services provided.” It is unlikely that banking facilities, services or products will give rise to this refusal. Discrimination may also be found where the bank refuses to provide “auxiliary aids and services.” If the bank can demonstrate that providing such auxiliary aids and services would either fundamentally alter the nature of its services or would result in an “undue burden,” discrimination may not be found.
IV. REMOVING ARCHITECTURAL BARRIERS
The refusal to remove architectural barriers and communication barriers, structural in nature, may be deemed to be discrimination if such removal is found to be “readily achievable.”
A. Readily Achievable
The term “readily achievable” is defined under the ADA to mean “easily accomplishable and able to be carried out without much difficulty or expense.” Section 301(9) of the Act establishes four distinct factors to be considered in determining whether an action is readily achievable. These factors include:
Although the foregoing factors may be helpful, the question of whether or not removal of a particular barrier is readily achievable will depend largely on the circumstances. For example, a bank may not be required to use the most advanced technology for a communications alternative, so long as effective communications are provided, but definitions in the ADA for each of these terms are lacking. An example used by the Department of Justice involved an automated teller machine (ATM) in one of its barrier removal pronouncements. If such barrier removal is “readily achievable” it must be performed by the bank. But other specific steps, such as installing a ramp, or remounting an ATM through the wall at a lower height, might or might not be necessary, depending upon whether they were “readily achievable” (i.e., easily accomplishable and able to be carried out without much difficulty or expense).
V. AUXILIARY AIDS AND SERVICES
Banks as public accommodations must provide auxiliary aids and services to ensure that disabled individuals are not excluded, denied services, or segregated because of their disabilities.
A. Undue Burden
Banks, however, are not obligated to provide aids or services if it imposes an “undue burden” on them or fundamentally alters the nature of their goods or services. The definition of an “undue burden” is “significant difficulty or expense.” Similar to the interpretation of readily achievable, “undue burden” will be determined on a case-by-case basis.
Banks will be held to a stricter cost standard for providing auxiliary aids and services than for removing architectural barriers. In the event that an undue burden precludes a bank from providing an auxiliary aid or service, the bank is still under an obligation to provide an alternative that would ensure “to the maximum extent possible,” that individuals with disabilities receive the goods or services provided to all other customers.
In reviewing compliance with the barrier removal and auxiliary aids and services requirements, it must be noted that each bank is unique and since different banks have different resources, their compliance responsibilities under Title III will vary. There is no single formula for compliance with the ADA since banks vary widely in the number, age, and condition of their facilities, their technological sophistication, their product mix and their financial resources. What is “readily achievable” for a well-capitalized bank or a technologically sophisticated, multi-branch urban bank may not be “readily achievable” for a small bank or an undercapitalized bank.
VI. ACCESSIBILITY
A. Existing Facilities
In order to make the bank “accessible” to persons considered disabled under the Act, you may be required to provide auxiliary aids and services, remove barriers, or otherwise take steps to make facilities or services available. Existing facilities must be made accessible by January 26, 1992. This means that you must provide the aids or services and remove barriers by that date if those things are “readily achievable” without “undue hardship.”
B. New Construction
Any places of public accommodations designed or constructed for first occupancy after January 26, 1993 (where the completed application for a building permit or permit extension is filed after January 26, 1992), must be readily accessible to and usable by individuals with disabilities EXCEPT were an entity can demonstrate that it is structurally impracticable.
Additionally, where renovations or alterations are made that either affect or could affect usability of or access to a place of public accommodation, the ADA requires the alterations be made in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities. Special attention should be given to ensuring that passages of travel to restrooms, telephones, and drinking fountains serving the altered area are readily accessible to and usable by disabled individuals. The ADA specifies that installation of an elevator is not required for newly constructed or renovated facilities that are either less than three stories tall or have less then 3,000 square feet per story unless a building is a shopping center or mall, the office of a health care provider, or some type of facility that the U.S. Attorney General determines the need of an elevator. In addition, if there are several identical features that serve the same functions (e.g., bathrooms), not all of them need to be made accessible - only a reasonable number.
C. Automated Teller Machines (ATMs)
1. General Guidelines
ATMs pose unique policy concerns that must be considered by banks. A bank may be in compliance with the accessibility guidelines for new construction by providing one accessible ATM. The bank, however, would violate the ADA if its accessibility ATM were in a lobby that was locked at night while the bank’s other non-accessible ATMs were open. The ATMs need to be available at the same hours to all customers.
The guidelines provide that for existing ATMs, barriers to use of them by disabled persons must be removed where it is “readily achievable” without undue hardship. Examples would include substituting a ramp for stairs or adding a ramp in addition to stairs, modifying doors to allow entry to persons in wheelchairs, rearranging furniture to clear wider paths leading to the ATM. Additionally, auxiliary aids and services are required to be provided if doing so does not alter the nature of the good or services or will not result in an undue burden. This might include retrofitting the machine to make the equipment usable by persons with visual impairments by adding Braille instructions and Braille labeling on all key pads.
New ATMs must also be usable by those with blindness or other visual impairments. The ADA guidelines seem to require drive-up ATMs to be usable by blind customers. Obviously, this requirement is designed for those situations where the blind or visually impaired person is a passenger. If you replace an ATM, the ATM would need to be readily accessible to or usable by disabled persons to the maximum extent feasible. If it is physically impossible to install an accessible ATM, you are not required to do so. You cannot, however, sight cost as the only factor which prevents making it accessible or usable.
2. ADA Standards for ATMs
The Department of Justice (DOJ) issued a final rule revising its ADA Standards for Accessible Design under the Americans with Disabilities Act (ADA) that apply to all public accommodations and commercial facilities, including banks. The final rule imposes new accessibility standards for ATMs, including a requirement for speech output and tactilely discernable input controls to assist blind customers. The banking industry had urged Justice to exempt, or provide a safe harbor, for existing ATMs that are in compliance with current ADA accessibility standards, but no exemption or safe harbor was granted in the final rule.
As a result, some existing ATMs may have to be retrofitted to comply with the new standards. The ADA requires upgrading unless doing so would result in an “undue burden.” Therefore, whether a bank will have to upgrade existing ATMs will be determined by its resources – or those of its holding company, if applicable – along with the modification costs. The new ADA standards for ATMs may be reviewed at the following web site: http://www.atmmarketplace.com/topics/ada-compliance/.
The new standards became legally enforceable on March 15, 2011. While this does not mean that all required upgrades had to be completed by that date, each institution should have implemented a compliance plan by March 15, 2011.
The triggering event for compliance with the 2010 Standards that relate to communication features of ATMs, is March 15, 2012. On and after that date, all ATMs are required (subject to applicable defenses) to comply with the communication-related features of the 2010 Standards. The triggering event for the 2010 Standards that relate to non-communication features of ATMs, including those features in existing ATMs that are safe harbored, would depend on the jurisdiction where the ATM is being installed. In jurisdictions where the installation of ATMs are included within the scope of the building permit (i.e., ATMs are within the plans that the building permit officials review and permit) the applicable date would be the date of the last application for a building permit or a permit extension. In jurisdictions where entities are not required to obtain permits for the installation of an ATM, the triggering event would be the preparation of the site for the installation of the ATM.
3. Framework for Achieving Compliance
Since the enactment of the ADA, ATMs have posed special challenges to banks. Their unique hybrid nature combines structural elements – i.e., clearance, height, and reach requirements – subject to barrier removal requirements and communicative elements– i.e., speech output functionality – subject to auxiliary aid and service requirements.
The DOJ considers the speech output elements of ATMs an auxiliary aid or service. Therefore, financial institutions must consider modifying or upgrading existing ATMs that do not comply with the communication-related specifications of the 2010 ADA Standards, including the speech output specifications. The DOJ considers the structural elements of ATMs – the access, height and reach elements – to be subject to the barrier removal provisions of the ADA and subject to the safe harbor for existing ATMs if they comply with the requirements of the 1991 ADA Standard.
4. Implementing a Compliance Plan
The March 15, 2011, compliance date does not mean that all financial institutions are required to have completed an upgrade of the communication-related elements of all existing ATMs by that date. Rather, the ADA simply requires each institution to implement a compliance plan by the effective date of the rule. Steps to consider taking include:
a. Inventory your institution’s existing ATMs. For each ATM, including drive-up ATMs, record the manufacturer, the model number, and year the machine was manufactured, if available, or alternatively, the year the ATM was installed. Also, make note of the software operating system, and speech output capabilities. If you do not have evidence or documentation of compliance with the access, height and reach requirements of the 1991 ADA Standards, you might also note the access route, height, and reach range of each ATM.
b. Compare each ATM’s specifications to the 1991 ADA Standards and the 2010 ADA Standards. Compare the communication-related elements – i.e., the speech output capabilities – to the new 2010 ADA Standards. If any of your ATMs do not comply with the specifications of section 707, working with your ATM vendor, determine the feasibility of upgrading those ATMs to comply with the new communication requirements of the 2010 standard. Whether the ATM can be upgraded and the cost of any upgrade will depend on the model and age of the ATM. Your ATM vendor(s) should be able to help with this process as they know the capabilities and specifications of each of their ATMs and should be familiar with the ADA accessibility standards.
If you do not otherwise have evidence or documentation of compliance with the physical access elements of the 1991 ADA Standards, compare physical access elements – i.e., height, reach range, and ground space access – to determine whether the physical access elements comply with the 1991 ADA Standards and are subject to the safe harbor provision.
c. Consult with your ATM vendor(s) to determine the cost of each upgrade. Remember to factor into these costs all employee hours spent installing new software or hardware and any employee training costs.
d. Establish a budget, strategic plan, and schedule for achieving ATM accessibility. As part of this determination, consider the test for “undue burden.” Communicative elements must be modified unless doing so would be an undue burden. What is an undue burden is subjective and will be determined on a case-by-case basis. Factors to consider in creating the strategic plan include:
• the nature and cost of the upgrades;
Remember that existing ATMs need only be modified to comply with the physical access requirements if they (1) did not comply with the 1991 ADA Standards and (2) it is “readily achievable” to do so, based on the same factors enumerated above. For example, lowering an ATM to comply with the revised reach range of the 2010 ADA Standard may not be readily achievable. In addition, it is not necessary to upgrade keyboard configurations as there were no specific keyboard requirements in the 1991 ADA Standard, and ATMs compliant with the 1991 ADA Standard are subject to the safe harbor. New ATMs, however, should comply with the keyboard requirements of the 2010 ADA Standard. Note that if an institution has multiple ATMs at one location, only one of these ATMs must be accessible. Also, recognize that if sued, the bank must demonstrate that it took readily achievable barrier removal efforts and provided auxiliary aids and services where doing so did not create an undue burden.
e. Revisit the strategic plan annually. ADA compliance is not static. The ADA imposes continuing and changing responsibilities that require banks to annually review the accessibility requirements, bank resources, and emerging technologies. Accessibility measures that previously were deemed too costly may now be affordable. Measures that may have been impractical may be made possible by new technology. In light of the continuing obligation to make facilities, products, and services accessible to the disabled, banks are required to annually review and modify their strategic plan for achieving ADA compliance.
Website Compliance Recommendations
3. Roadmap To Accessibility
a. Audit your website for accessibility. Consider having an expert audit your website to determine what content, if any, would not be considered accessible and in conformance with WCAG 2.0, Level AA.
b. Adopt an accessibility policy and standard for your bank (WCAG 2.0, Level AA would be the safest choice).
c. Appoint person(s) to oversee all electronic information technology (EIT) accessibility issues and review new technology for accessibility.
d. Train your website team. Make sure your in-house website team is aware of the proposed and anticipated standard (WCAG 2.0, Level AA) and that bank management understands the threat presented by private litigants.
e. Direct departments to create an implementation plan.
f. Create an accessibility webpage with information on accessibility and a process for reporting website access problems and getting help.
g. Require accessibility in vendor contracts.
h. Conduct annual audits for conformance with WCAG 2.0, Level AA.
E. Introduction
The Department of Justice (DOJ) issued guidance providing additional clarity about website accessibility and how businesses can ensure compliance with the Americans with Disabilities Act (ADA). The guidance provides examples of website accessibility barriers, clarifies when the ADA requires web content to be accessible and offers tips for improving website accessibility.
The guidance describes how businesses open to the public can make sure that their websites are accessible to people with disabilities as required by the ADA.
F. Examples Of Website Accessibility Barriers
The ways in which websites are designed and set up can create unnecessary barriers that make it difficult or impossible for people with disabilities to use websites. The guidance provides the following examples of website accessibility barriers:
G. When The Ada Requires Web Content To Be Accessible
Businesses that are open to the public (Title III)
Title III prohibits discrimination against people with disabilities by businesses open to the public (also referred to as “public accommodations” under the ADA). The ADA requires that businesses open to the public provide full and equal enjoyment of their goods, services, facilities, privileges, advantages,
A website with inaccessible features can limit the ability of people with disabilities to access a public accommodation’s goods, services, and privileges available through that website.
H. How To Make Web Content Accessible To People With Disabilities
The DOJ does not have a regulation setting out detailed standards, but the Department’s longstanding interpretation of the general nondiscrimination and effective communication provisions applies to web accessibility. Businesses can currently choose how they will ensure that the programs, services, and goods they provide online are accessible to people with disabilities.
Existing technical standards provide helpful guidance concerning how to ensure accessibility of website features. These include the Web Content Accessibility Guidelines (WCAG) and the Section 508 Standards, which the federal government uses for its own websites. Check out the resources section for more references.
VII. COMPLIANCE TIPS
Despite repeated requests from the banking industry, the Department of Justice has refused to provide any additional guidance on many situations that a bank may encounter. Suggesting that these situations will need to be resolved on a case-by-case basis, it is apparent that a great deal of litigation will be required in order to provide definition to many of the vague terms contain within the ADA. It is recommended that banks adapt services and facilities only after consulting with groups representing the disabled in their community. Other actions which would be beneficial in attempting to comply with the ADA would include the following:
A. Identify any barriers to access by the disabled in any bank facilities. This identification should apply to both public areas and areas which only employees would use. Include not only ATMs and teller windows, but also review any trust department, commercial loan areas, operations centers, cash vaults or other areas of the institution for removal of barriers;
B. Estimate the cost in both time and money to remove any barriers identified;
C. Remove any barriers which will not be too costly, given your bank’s own size, financial resources, and other factors listed in the discussion above;
D. Review your bank’s customer-safety standards with the disabled in mind. The long history of crimes at ATMs is only one example of areas in which the industry has been placed on notice of hazards to customers. In addition to removing bushes and other potential hiding places for muggers near ATMs, consider the safety needs of the blind customer, the customer confined to a wheelchair, and other disabled customers at all bank facilities, indoors and outdoors;
E. Consider installing at least one amplifying listening device for the hearing-impaired at your teller lines;
F. Consider if there is a need to hire a sign-language-qualified interpreter for the hearing-impaired for assistance in the more complex bank transactions, such as loan closings, establishing trusts and the like;
G. Consider making a tape recording or a Braille copy of loan documents available for use by the visually impaired; and
H. Document in detail any steps taken in identifying and removing barriers, including any consultations with disabled people or advocacy groups.
VIII. CONCLUSION
As you can readily see, the ADA establishes a complex set of rules which cannot be ignored by employers which are covered by the Act. The employment provisions under Title I of the ADA are designed to remove unnecessary barriers to the employment of people with disabilities. Employers are required to both avoid discrimination against people with disabilities, and to “reasonably accommodate” the disabilities of employees and applicants.
“The Americans with Disabilities Act - Questions and Answers,” which relates to the issue of employment and public accommodations and which has been issued by the U.S. Department of Justice may be found at http://www.eeoc.gov/eeoc/publications/adaqa1.cfm. Another helpful resource is the “Americans with Disabilities Act Technical Assistance Manual.”