As technology has evolved and the manner in which retail banking services are delivered to the public has changed as a result, Automated Teller Machines (“ATMs”) have proliferated. However, it has been a challenge to ensure that the increasing convenience offered by an ever-expanding number of ATMs is also made available to disabled American consumers.
For example, to understand how difficult it would be for a blind person to use an ATM, a sighted individual need only close his or her eyes, approach the ATM and attempt to perform a banking transaction—any transaction. It is impossible to perform the transaction without vision because the input modalities for the transaction rely upon visual cues, which are of course meaningless to somebody who is blind.
In fact, since the enactment of the Americans with Disabilities Act (“ADA”) in 1991, banks and financial institutions which provide banking services through ATMs have been required to ensure that all services available at the ATM are fully accessible to, and independently usable by, individuals who are blind. The 1991 Department of Justice Standards required that “instructions and all information for use shall be made accessible to and independently usable by persons with vision impairments.”
Initially, the ADA and its implementing regulations did not provide technical scoping details defining the steps required to make an ATM fully accessible to and independently usable by blind individuals. The National Federation of the Blind (“NFB”) and other blind advocacy groups have been working to achieve ATM accessibility since at least as early as 1999, at which time the NFB began to work with the manufacturers of ATMs, the banking industry and other stakeholders—including the Department of Justice–to advocate for the adoption of specific scoping requirements – including most significantly voice guidance – calculated to achieve true accessibility. After a lengthy rulemaking process (i.e. more than ten years) wherein the DOJ entertained extensive input from all stakeholders, the DOJ published the Final Rule delineating the 2010 Standards for Accessible Design on September 15, 2010 (the “2010 Standards”). The 2010 Standards include very specific scoping requirements which require ATMs to have voice-guidance and other related features. The 2010 Standards became effective on March 15, 2012.
Notwithstanding that the ATM accessibility requirements for the blind included in the 2010 Standards were enacted only after more than ten years of debate among all of the relevant stakeholders–a March 7, 2012 Wall Street Journal article noted the widely publicized fact that at least 50% of the nation’s ATMs remained inaccessible to blind individuals in violation of the requirements set forth in the 2010 Standards (which were to become effective one week later). In that same article, a spokesperson for the National Federation of the Blind (“NFB”) was quoted as saying: “It is absolutely unacceptable that at this late date there are hundreds of thousands of ATMs that are still not accessible to blind people.”
Some members of the blind advocacy community share the view that was reflected in that Wall Street Journal article and further believe that while certain stakeholders have been proactive with respect to facilitating accessibility at their ATMs – as federal law has required since 1991—other stakeholders have been dragging their feet with respect to compliance.
Beginning in the first quarter of 2012, a team of lawyers, paralegals and investigators at Carlson Lynch began working with a dedicated group of blind advocates to pursue civil litigation calculated to enforce the accessibility requirements of the 2010 Standards. We believe that this project will exemplify how effective well-conceived—and well-financed–private litigation can be to enforce compliance with the federal civil rights laws. To that end, we will provide periodic updates regarding what is happening “on the ground” in the litigation nationally.