NAFCU Journal July August 2021

52 THE NAFCU JOURNAL July–August 2021 C redit unions have been subject to the requirements of the Ameri- cans with Disabilities Act (ADA) since it was signed into law in 1990. In part, Title III of the law applies to businesses that are a “place of public accommodation,” such as credit unions. Sometimes, the extent to which the requirements of Title III apply to web- sites can arise which may be impacted by recent litigation in this area. Application and Exceptions Title III of the ADA provides a list of twelve categories of private entities that are considered places of public accommodation if their operations affect commerce. Banks and other service establishments are listed, and the law has been interpreted to include credit unions. Title III prohibits credit unions from discriminating against an individual on the basis of disability in the “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations” of the credit union. The law imposes several requirements and restrictions which include, in part: ■ a prohibition against having “eligibility criteria” that tend to screen out indi- viduals with disabilities; ■ a requirement to make “reasonable modifications” to their policies, prac- tices, or procedures necessary to serve individuals with disabilities; ■ a requirement to ensure no individual with a disability is “excluded, denied services, segregated or otherwise treated differently” because of the absence of “auxiliary aids and ser- vices;” and ■ an obligation to remove architectural barriers and communication barri- ers in existing facilities or to provide alternative methods if removal of the barrier is not achievable. There are some exceptions to those requirements—for example, there is an exception to the requirement to provide modifications or auxiliary aids if doing so would fundamentally alter the nature of the credit union’s services or facilities. This can be limited and may be impacted by court decisions in the jurisdictions where a credit union operates. Some of Title III’s requirements can be straightforward, like overt discrim- ination. Other provisions can be less clear. For example, compliance with the requirement to provide “auxiliary aids and services” can be more challeng- ing. The ADA and section 36.303 of the ADA’s implementing regulations define “auxiliary aids and services.” For individ- uals with a hearing impairment, this can include providing qualified interpreters (either on-site or through video remote interpreting services); exchange of written notes; real-time computer-aided transcription services; voice, text and video-based communications products and systems; or captioned telephones. For individuals with a visual impairment, this can include providing qualified readers, taped texts, audio recordings, Braille materials, screen-reader software, magnification software, and large print materials. Credit unions may want to review their policies, procedures and practices to determine if they are provid- ing adequate auxiliary aids and services. Recent Litigation While the ADA clearly applies to a credit union’s branches and in-person or tele- phone communications with members, there has been significant debate and litigation in recent years regarding the applicability of Title III to a credit union’s website or mobile application (app). The U.S. Court of Appeals for the Elev- enth Circuit issued an opinion on this topic in April 2021. In that case, Winn- Dixie grocery stores was sued by a plaintiff with a visual impairment who claimed the incompatibility of Winn- Dixie’s website with his screen-reader software violated Title III of the ADA. The Eleventh Circuit held that a website can- not be a “place of public accommodation.” While the ruling was heralded by some as a major win for credit unions and other businesses subject to the ADA, the scope of the ruling is fairly limited. First, it only applies in the Eleventh Circuit (Alabama, Florida, and Georgia), so courts in other THE AMERICANS WITH DISABILITIES ACT: SOME BASICS By Nick St. John COMPLIANCE CENTRAL