NAFCU Journal July August 2021

53 THE NAFCU JOURNAL July–August 2021 jurisdictions may rule differently. Sec- ondly, it could be appealed. Thirdly, and most importantly, while the ruling concluded a website itself is not a “place of public accommodation,” many businesses which own websites still are. The Eleventh Circuit ruling left open the possibility that a website could violate Title III of the ADA if it creates an “intan- gible barrier” that prevents a person with a disability from fully and equally enjoy- ing “the goods, services, facilities, privi- leges, advantages or accommodations” of a place of public accommodation, such as a credit union. The court determined that Winn-Dixie’s website did not create an intangible barrier to the full and equal enjoyment of the goods, services and facilities of Winn-Dixie’s physical stores because the website only provided users with the ability to select coupons and to refill prescriptions. In other words, even if the website had been accessible, persons with disabilities would still need to visit Winn-Dixie’s physical locations to purchase goods. The court noted that the limited utility of the website—such as the fact that it did not offer users the ability to buy goods or services online—was a factor in its decision. Not all courts are in agreement on the topic. The Ninth Circuit Court of Appeals, with jurisdiction in California, Alaska, Arizona, and Hawaii, considered the issue of Title III’s application to websites and mobile apps in 2019, in a case where Domino’s Pizza was the plaintiff. The court determined that a website or mobile app could be viewed as an “auxil- iary aid and service” of a place of public accommodation, and that failure to make the website or mobile app acces- sible could be a violation of Title III. The Ninth Circuit also considered the utility of the website. Because the Domino’s website and mobile app facilitates access to their food and services—such as by allowing users to order food through the website without ever needing to phys- ically visit a Domino’s restaurant—the court found that Title III did apply to the website and app. How This Impacts Credit Unions Many credit union websites and mobile apps offer the same products and services that a member could receive in-person at a branch. Some credit union members conduct their banking activ- ities entirely through the credit union website or app without physically visiting a branch location. Meanwhile, many credit unions have already taken steps to ensure their websites are accessible to those with visual impairments as credit unions are generally committed to assisting all members. Doing so would not only be a great member service to any members with disabilities, but it could also miti- gate ADA litigation and compliance risk. Finding ways to assist those with dis- abilities can not only limit ADA risk, but, perhaps more importantly, is reflective of credit unions’ commitment to serving all members. NAFCU and its members strongly support the protections set forth under the ADA but believe these efforts are best achieved through clear guidance and standards for website compliance, not through meritless and costly lawsuits. The association will continue to seek clarity for credit unions. Credit unions may want to take steps to make their websites and mobile apps as accessible as possible to individuals with disabilities. Sometimes, this includes considering private industry guidelines for website accessibility, such as the Website Content Accessibility Guidelines 2.1 fromW3C. While not a regulatory requirement, some courts have pointed to these kinds of industry standards as a way for websites to be accessible. Nick St. John is regulatory compliance counsel for NAFCU.