Americans With Disabilities Act of 1990

ADA Compliance for Financial Institutions

"What, me worry?" -Alfred E. Neuman, Mad Magazine

Martin H. Orlick
Jeffer Mangels Butler & Mitchell LLP

1 ©2011 Jeffer Mangels Butler & Mitchell LLP. All rights reserved
 New Americans with Disabilities Act
Accessibility Guidelines (ADAAG)

• New Regulations and Standards were under consideration since 1994

• Amendments to the 1990 ADA Standards:
• clarifies existing Scoping and Technical guidelines
• addresses new areas of accessibility for the first time
• 2010 ADA Standards were published in the Federal Register on Sept 15
• Takes effect March 15, 2011
• Financial institutions to implement compliance plan by March 15, 2011
• Guidelines become mandatory March 15, 2012
• Implications for Banking Industry
1. physical accessibility
2. branch facilities, electronic banking equipment, ATMs
3. requirements for auxiliary aides and services for effective communication with deaf,
hard of hearing, & blind customers
• ADA Standards are not static; factors include institution's resources, cost of
accommodations, etc. will change an institution's ADA duties

2
 Litigation Update
Compliance Dates and Applicable Standards for Barrier Removal and Safe
Harbor (Appendix to § 36.304(d))
Date Element-by-Element Requirements Applicable
Standards
Before Elements that do not comply with the requirements for those elements 1991 Standards or
March 15, in the 1991 Standards must be modified to the extent readily 2010 Standards
2012 achievable.

On or after Elements that do not comply with the requirements for those elements 2010 Standards
March 15, in the 1991 Standards or that do not comply with the supplemental
2012 requirements (i.e., elements for which there are neither technical nor
scoping specifications in the 1991 Standards) must be modified to the
extent readily achievable.

Elements Elements that comply with the requirements for those elements in the Safe Harbor
not altered 1991 Standards do not need to be modified.
after March
15, 2012

3
 Litigation Update

• ELEMENTS of accessible facilities are subject to the Safe Harbor

provisions
• Element-by-element analysis
• What is an Element?
• ATMs
• 1. physical access to the machine, clear floor area, reach-range
• 2. accessible features of the machines (Braille, audio jacks)
• 3. communication-related elements
• 4. privacy protection

4
 ATMs

• ATM Compliance under the 1991 & 2010 Standards

• The 1991 Standards provided that "instructions and all
information for use shall be made accessible to and
independently usable by person with vision impairments"
• The 2010 Standards provides far more technical specification

5
 ATMs

• DOJ considers "communication-related elements" of ATMs "auxiliary

aides and services"
• Safe Harbor does not apply
• Exception: banks do not have to take measures that would result in a
"fundamental alteration of its program" or would cause "undue
burdens"
• No bright-line tests for fundamental alteration or undue burden
• ATM Scoping Provisions
• At least 1 ATM at each location must be accessible
• CA says 50% must be accessible
• Interior and exterior ATMs are separate locations
• At least 1 of each envelope, wastepaper, or other bin must be
accessible

6
 ATMs

• Technical Provisions for ATMs

• ATMs shall provide the same degree of privacy of input and output
available to all individuals
• Must be speech enabled
• Operating instructions and orientation, visible transaction prompts,
user inputs verification, error messages, and all displayed
information must be accessible and usable by individuals with visual
impairments
• Braille instructions initiating speech mode must be provided
• User control: speech shall be capable of being repeated or interrupted
• Requirements for numeric keys, function keys, input control, display
screen visibility, audible and visual indicators, handsets
• Highest operable part- 48" above finished floor
• Coordinate with your ATM vendors to provide accessible machines

7
 ATM

• Maximum reach range is 48 inches above the finished floor,

minimum 15 inches.
• Effective date? Mandatory as of March 15, 2012, only if it
doesn’t comply with 1991 Standards

8
 Segways

• Segways are now considered power-driven mobility devices

• Segway Speed: 12.5 mph
• Avg running speed: 6-10 mph
• Requires modifications of bank's "policies, practices and
procedures"
• Burden is on the bank to prove a valid exception
• UNLESS
• can demonstrate that the use of the device is not reasonable
• or that its use will result in fundamental alteration in the nature
of bank operations

9
 Telephone Banking

• Auxiliary Aides and Services

• Telecommunication Relay Services (TRS)
• Including automated-attended telephone systems
• Public accommodations must respond to calls from TRS
• Security issues
• Phones in branches offered on more than an incidental basis
must be made TTY (text telephone) and TRS accessible.
• The DOJ has NOT mandated that banks make all technological
services available in all situations

10
 Online Banking

• Is your website accessible to the visually impaired?

• National Federation of the Blind v. Target Corp.
• National class action case
• Target settled for >$6 MM, agreed to install screen reader
software

11
 Notice of Proposed Rulemaking

• Notice of Proposed Rulemaking regarding website accessibility

• Notice of Proposed Rulemaking for electronic equipment
• Electronic transaction equipment and furniture in branches
• ATM machines that are not permanently affixed to a building
• Comments from the public will be accepted on or before January
24, 2011

12
 Online Banking

New frontier…

PDA or SMARTPHONE BANKING: how to make mobile banking

accessible for people who are visually or hearing impaired

13
 Branch Accessible Features

• Physical Accessibility
• Parking lots & signage
• Paths of travel to entrances & ATMs
• Doorways
• Teller lines & counters, 1 accessible per function (i.e.,
merchant, consumer, safe deposit box teller lines)
• Safe deposit box viewing rooms
• Check writing stands
• Public bathrooms
• Floor levels

14
 Anatomy of an ADA Lawsuit

• Action under Title III of ADA – 42 U.S.C. 12182, et seq

• Remedies include
• Injunctive relief
• Attorneys fees and litigation costs
• Damages for governmental enforcement-not for private litigants

15
 Anatomy of an ADA Lawsuit

• Actions under state law

• Remedies include
• Injunctive relief
• Attorneys fees and litigation costs
• In some states like California, damages are available for private
litigants
• State law causes of action – California
• Unruh Civil Rights Act, Civil Code Sec. 51, et seq
• Up to 3x the amount of actual damages but in no case less than
$4,000 minimum statutory damages for each offense
• The Disabled Person Act, Civil Code Sec. 54, et seq
• Allows minimum statutory damages $1,000 per offense
• Government Code Sec. 19955 regarding public accommodations built
with private funds shall comply with accessibility requirements
• Negligence for violation of statutes
16
 Enforcement of Accessibility Laws

• U.S. Department of Justice Civil Rights Division

• State Civil Rights agencies
• Private right of action through individual and class action
litigation

17
 CASp Certification

• Construction-related Accessibility Standards Compliance

• Certified Access Specialist Program (CASp), Civil Code Sec
55, et seq
• CASp provides certain litigation procedural and substantive
protections
• CASp provides practical deterrent protection

18
 Questions?

Martin H. Orlick, Esq., 

Jeffer, Mangels, Butler & Mitchell LLP
MOrlick@jmbm.com
(415) 984-9667

19