New ATM Regulations Create Potential Landmine for Banks

Business Litigation Update

Date: March 28, 2013


Banks and other financial institutions risk potential liability if their automated teller machines (ATMs) lack certain accessibility features newly mandated under the Americans With Disabilities Act (ADA).1 The Wall Street Journal reports that at least 50 percent of all ATMs nationwide violate the new standards.2

The new regulations promote ATM access by visually impaired persons, and plaintiffs' firms have taken notice. More than 100 class-action lawsuits have been filed since the new rules took effect on March 15, 2012. An estimated 10 million Americans are blind or visually impaired.3

Banks in several states, including Ohio and Georgia, are facing legal challenges to their level of compliance with the ATM regulations. Recent lawsuits demonstrate that Georgia banks are not immune. On February 28, 2013, a class-action lawsuit was filed in the United States District Court for the Northern District of Georgia, Atlanta Division, against a major regional bank4 by a woman claiming to be legally blind.

In this lawsuit, the plaintiff charges that "a significant percentage of the ATMs throughout Georgia continue to violate accessibility requirements mandated by federal law," including two ATMs she routinely visits. The plaintiff claims she is unable to use these noncompliant ATMs and alleges that her only recourse is to accept assistance from strangers. In one such instance, the plaintiff claims a stranger offered assistance, then stole her ATM card and looted her bank account.

The plaintiff seeks a court order requiring the defendant to comply with federal law by updating or replacing its ATMs at a tremendous cost5 and asks the court to monitor the defendant's compliance with the new regulations. The plaintiff further demands attorneys' fees and litigation costs, which likely will be significant.

The New Rules

As of March 15, 2013, ATMs must provide the following features to accommodate visually impaired persons:6

  • Speech output. All displayed information must be accessible to, and usable by, persons with vision impairments. ATMs must be speech enabled. The speech may be recorded or synthesized, but it must be delivered through a mechanism that is readily available to all users, such as a telephone handset or standard connector. Certain exceptions apply.
  • Braille instructions. Instructions for initiating speech mode must be in Braille.
  • User controls. An ATM's speech output must be capable of being repeated and interrupted. Volume controls are also required.
  • Privacy. All users must be provided with the same amount of privacy for information entered into and data produced by the ATM.
  • Receipts. Whenever receipts are provided, speech output must include all information on the receipt that is required for the user to complete or verify the transaction. Several exceptions apply.
  • Input controls. Each ATM function must have at least one tactilely discernible input control. Numeric keys must be arranged in a 12-key layout, either ascending (as on a telephone keypad) or descending (as on a computer keypad). The number 5 key must be tactilely distinct from the others.
  • Function keys. Characters and symbols on key surfaces must contrast visually from the key surfaces, and the keys themselves must contrast with the background surfaces. Function keys must have specific tactile surfaces as outlined at length in the regulations.
  • Visibility. The new rules require a sans-serif font, which must have characters at least 3/16" high based on the uppercase letter I. Characters must contrast with the background. The display screen must be visible from 40 inches above the floor immediately in front of the ATM. These requirements do not apply to drive-up ATMs.
  • Two-way communication system. Both audible and visual signals must be provided.
  • Handsets. If provided, cords to headsets must be at least 29 inches long.
  • Operable parts. ATMs must comply with the many provisions of Section 309 of the ADA's Accessibility Guidelines. Certain exceptions apply for drive-up ATMs.
  • Clear floor or ground space. ATMs must comply with the many provisions of Section 305 of the ADA's Accessibility Guidelines. Drive-up ATMs are exempted.
No Safe Harbor, But Exceptions for “Undue Burden”

The Department of Justice, which "vigorously enforce[s] the ADA,"7 has stated that a safe harbor that applies to an ATM's "structural elements" does not apply to the new regulations outlined above, which the DOJ considers distinguishable "communication-related elements."8 Instead, the DOJ's position is that the ADA's standard exceptions are sufficient to protect banks from excessive costs that may be imposed by the new requirements.9 That is, while the ADA requires that disabled persons using ATMs not be treated differently because of the absence of "auxiliary aids" (such as those required by the new regulations), banks can omit or delay installing such aids when providing them would "result in an undue burden."10 What constitutes an "undue burden" within the context of the new rules remains to be determined by the courts, but defenses on the basis of excessive costs or backorders on equipment may be viable.


142 U.S.C. ? 12101 et seq.; 28 C.F.R. Part 36 Appx D; Section 707 of the 2010 ADA Standards for Accessible Design.

2Robin Sidel, "ATMs Fall Short on Disability Rule," Wall Street Journal, March 7, 2012.


4Empish Thomas v. Branch Banking & Trust Co., Case No. 1:13-cv-00656-TCB.

5ATMs typically cost about $30,000. Robin Sidel, "ATMs Fall Short on Disability Rule," Wall Street Journal, March 7, 2012.

6Section 707 of the 2010 ADA Standards for Accessible Design. These new regulations are in addition to the 1991 standards that required ATMs to be accessible to, and independently useable by, visually impaired persons.

7Robin Sidel, "ATMs Fall Short on Disability Rule," Wall Street Journal, March 7, 2012.

8Section 36.303, Auxiliary Aids and Services, Title III, Final Rule Amending 28 C.F.R. Part 36 (Non-Discrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities).


10Id. Other narrower exceptions exist as well.