In a recent spate of putative federal class action lawsuits, plaintiffs have claimed that Texas financial institutions have violated the Americans with Disabilities Act (ADA), and similar state laws, by operating and maintaining automated teller machines (ATMs) that are not fully accessible to—and independently useable by—persons who are visually impaired. These suits are based on the revised accessibility standards of the ADA that became effective on March 15, 2012. Among the requirements of these revised standards are that the ATMs must provide voice guidance, Braille instructions, and tactile input controls to allow independent use by the visually impaired. Importantly, because these standards were not included in the previous version of the law, there is no safe harbor to protect banks that installed the ATM machines prior to the compliance date.

The recently filed suits have much in common. The gravamen of these suits is that the defendants' ATMs lack voice guidance features and/or tactile function key symbols that make them accessible to the visually impaired without the assistance of others. In some cases, the same named plaintiffs have filed multiple suits, each with substantially the same allegations but directed in each instance against a different bank. Banks should look carefully at these suits because it appears that the plaintiffs may meet the initial threshold burdens to sue on these issues.

When a visually impaired person complains that the ATMs are not compliant with the regulations governing accessibility, he or she need not reach out the to the bank to seek an accommodation or provide the bank with notice prior to filing suit. As a result, the first notice a bank may receive that its machines are non-compliant can be service of a lawsuit.

Suits claiming violations of these regulations may be brought by private individuals or by the government. Injunctive relief mandating compliance with the design standards will likely be awarded if the ATM is not in strict compliance with the requirements, regardless of who files the suit. Where the suit is brought by the Attorney General, significant fines may be levied, including a fine of up to $55,000 for the first offense and $110,000 for subsequent offenses. Finally, a complainant need not file a lawsuit—a private individual may instead make complaints to the U.S. Department of Justice (DOJ)—the government agency charged with enforcing the ADA accessibility laws. The DOJ can also obtain penalties for non-compliance as well as mandate that the machines be brought into compliance.

Any entity that owns or operates an ATM should carefully examine the machines to determine whether the ATMs are in compliance with the technical requirements of the design standards. We have the expertise to both assist owners and operators in analyzing whether the machines are compliant with the new law as well as to provide assistance in remedying non-compliant aspects.