Academic journal article ABA Banking Journal

Does That New Branch Blueprint Pose a Compliance Risk?

Academic journal article ABA Banking Journal

Does That New Branch Blueprint Pose a Compliance Risk?

Article excerpt

In the summer of 1990, amid great celebration, President Bush signed into law the Americans With Disabilities Act. This landmark act's intent is to ensure that people with disabilities have access to employment, public transportation, public accommodations, government services, and telecommunications.

The law is broad in terms of the definition of disability as well as the entities covered and their responsibilities.

Given the deliberate vagueness of many aspects of the act and its implementing regulations, the ADA promises to challenge all businesses, including banks, to ensure that people with disabilities have access to products and services. Certain rules apply to all situations, while other aspects of the law depend on whether a facility is left as it is now, being altered, or still in the planning stages.

The basics. This article focuses on Title III of the ADA, which addresses access to public accommodations. The act specifically identifies banks as public accommodations.

Title III will affect many aspects of banks' business. Its impact is not restricted just to physical access to the branch and to teller windows. Access to bank products and services is also covered.

In many cases, accessibility to products and services may be easily achieved. Access could be as simple as moving chairs out of the way. Or it could be as straightforward as having tellers serve people in wheelchairs from the front of the teller counter and pass written notes to deaf customers.

Other aspects are more complicated and, at least at this time, their meaning uncertain. For many of the act's provisions, there are no firm rules. Compliance requirements will be based on a case-by-case analysis of each bank's resources and the needs of people with disabilities. Many ambiguities and uncertainties will only be resolved over time by the courts.

The final Department of Justice regulations implementing Title III were published in the July 26, 1991, Federal Register. The regulations incorporate the federal Architectural and Transportation Barriers Disabilities Act Guidelines for Buildings and Facilities. These guidelines appear in the regulations as Appendix A and outline standards for construction of new facilities.

Title III generally prohibits discrimination on the basis of disability in the "full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations." In addition, Title III contains specific requirements addressing:

* Eligibility criteria that screen out or tend to screen out people with disabilities from enjoying the goods, services, etc.

* Modifications in policies, practices, and procedures when necessary to enable access.

* Provision of auxiliary aids and services to existing facilities.

* Removal of barriers in existing facilities.

* Standards of accessibility in designing and constructing new facilities and in altering existing facilities.

Banking in the mainstream. Subparts B and C of Section 36.201 of the regulation address access to products and services. Subpart B contains the general rule prohibiting discrimination on the basis of disability. Subpart C refines this general prohibition.

At times, the general prohibition and the specific provisions seem to overlap or conflict. This appears to be the product of the Senate and House conference negotiations, rather than any deliberate intent. To help reconcile ambiguities, the regulation provides that the specific provisions of Subpart C are the final word.

A dominant theme of the act is the integration of people with disabilities into mainstream society. Thus, the regulation explains that the general prohibition against discrimination on the basis of disability means that people with disabilities are entitled to goods and services that are equal to those afforded to other people.

Moreover, a different or separate benefit is only permitted when necessary to provide a good or service that is as effective as that provided to others. …

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