Guest post by Kara Maciel

In a settlement that all financial service companies should be aware of, Century Heritage FCU, recently resolved a class action lawsuit concerning the accessibility features of its automatic teller machines (“ATMs”).  Under the Americans with Disabilities Act (“ADA”), banks, credit unions and financial service companies must make their ATMs accessible for individuals with disabilities.  In the settlement, Century Heritage agreed to update its ATMs within 90 days to offer accommodations for blind and visually impaired customers.  The credit union will also provide 12 monthly certificates certifying that it remains in compliance with the ADA and that the voice guidance functions at each of its ATMs are properly working.

Compliance with the ADA and the accessibility features of ATMs became a hot issue for the financial services industry when the 2010 ADA Standards became effective on March 15, 2012. Contained within the 2010 ADA Standards is a “safe harbor” protection for existing ATMs that were already in compliance with the ADA.  Compliance obligations concern both the structural elements that impact the physical accessibility of ATMs and the communication-related elements that relate to the customer’s interactive or communicative experience at ATMs. The Department of Justice (“DOJ”) has taken the position that structural elements are distinct from communication-related elements, and thus the 2010 ADA Standard’s safe harbor protection would likely apply only to those structural elements in existing ATMs.  This means that new requirements addressing height and reach, or accessible path and floor space, would be entitled to the safe harbor protection, and compliance with the former 1991 ADA Standards (the “1991 Standards”) is sufficient.  However, if any alterations are made to existing ATMs after March 15, 2012, they would lose the safe harbor protection with respect to structural elements.

However, the DOJ takes a different approach with respect to communication-related elements of ATMs, which it defines as “auxiliary aids and services.” While the DOJ has not provided a specific list of which new requirements would be considered “communication-related,” requirements regarding voice guidance, speech output (including audible tones for security purposes and devices capable of providing audible balance inquiry information), and Braille instructions for initiating speech mode and features likely would be covered.  Thus, the safe harbor would not apply to these communication-related elements, and only if companies can meet the demanding threshold of showing that compliance with the new communication-related elements would impose an undue burden on them can they avoid making modifications.  Accordingly, existing ATMs that comport only with the 1991 Standards must be modified or retrofitted to comply with the communication-related requirements contained in 2010 Standards.

For Century Heritage, it appears that it was the communication-related elements that lead to the lawsuit and subsequent settlement and consent decree.  Notably, the plaintiff, Robert Jahoda, filed similar suits against at least seven other banks alleging their ATMs were not compliant with the ADA.  In light of these class action suits, and the DOJ’s interpretations as to what elements must be updated with the 2010 ADA Standards, all banks, credit unions and financial service companies should assess their existing ATMs and take steps to comply to avoid costly litigation.