What business doesn't have a presence in cyberspace? What business doesn't design and continually develop its website to reach the largest number of consumers?
What business uses a website that complies with the Americans with Disabilities Act (ADA)? If the amount of litigation is a measure, the answer to the last question is, "not enough."
This "new" exposure is firmly rooted in Title III of the ADA, which covers "public accommodations" and is enforced by the U.S. Department of Justice (DOJ). Despite a clear split among the federal circuit courts regarding whether a website is covered under Title III, DOJ has declared that all forms of electronic and digital communication, including websites, are covered. Borrowing from the Rehabilitation Act, which requires federal electronic technology to be accessible to disabled employees and the public, DOJ determined that the private sector's electronic technology had to comply with the ADA as well. The plaintiffs' bar pounced, and hundreds of businesses have been sued.
|Courts flooded with suits
The worldwide growth of the internet has fostered countless dilemmas about how to use it best — that is, attract the most consumers. Last among these dilemmas is how a company's website might fare in attracting disabled consumers. Today, hundreds of lawsuits alleging non-compliant websites are clogging the federal courts. On one side are courts that require some connection to a brick-and-mortar establishment, while other courts have deemed a presence in cyberspace as sufficient to bring the site within the ADA's coverage. Outside the courts, DOJ has developed its own aggressive position, pursuing virtually anyone with a presence in cyberspace. DOJ Enforcement
Initially, the DOJ confined its enforcement efforts to government agencies covered by Title II of the ADA. Around 2007, the National Federation of the Blind sued Target — and the plaintiffs' bar was off to the races. Netflix was a popular target. Harvard College and the Massachusetts Institute of Technology were sued by disabled students unable to access online course content mandatory to receiving a passing grade.
What does the DOJ require to bring websites into compliance? Unfortunately, much remains a mystery as there are no guidelines or regulations regarding remediation, despite the DOJ's promises over the last six years to publish them. The most recent projected date of 2018 seems unlikely in the face of President Trump's Executive Order curbing agency regulations.
This is in stark contrast to remediating physical barriers in a place of public accommodation, where adherence to strict published regulations ranging from the slope of a parking lot to how high a table may be from the floor must be strictly followed. In 2008 the Web Content Accessibility Guidelines (WCAG) 2.0 were published by the World Wide Web Consortium. Considered the "gold standard" for ADA-compliant websites, they were adopted and are currently used by the DOJ.
Most litigation is settled quickly to avoid ratcheting up the plaintiff's attorney fees. At the first notice of a claim, a business should immediately assess its website and begin remediation.
Who else is being sued?
In addition to higher education, plaintiffs are suing retailers, banks, hospitality and even nonprofits. Virtually any business covered by the ADA is at risk. The same plaintiffs are also targeting smaller businesses that use websites to attract consumers, including insurance professionals who rely on web presences to allow consumers to purchase products and examine their own accounts. Any mobile apps available to their insureds must also be ADA compliant.
|How EPLI cover responds
Most of these claims arise under Employment Practices Liability (EPLI) policies because they are brought under the ADA. Whether this coverage continues to be written into EPLI policies remains to be seen. Some believe the exposure is more properly included in a media liability policy and even a cyber policy. Although most cyber policies contain discrimination exclusions, one that covers the wrongful collection of information or the failure to implement privacy policies and procedures may help defray some defense costs.
Coverage tracks that for a physical access claim to the extent that a defense is provided, settlement costs are covered, and remediation is excluded.
From an underwriting perspective, the WCAG 2.0 Guidelines should be used to determine the degree of compliance of an insured's website, and what might be necessary to make it ADA compliant. These are the Guidelines used by the DOJ and the plaintiffs' bar. There's no reason underwriters can't use the same Guidelines in their risk assessments.
|Coverage must evolve
Litigation will continue to increase to even more dramatic levels. With opening up access to the disabled, businesses will realize there is a largely untapped consumer base. Carriers will face increased demand for products that cover this exposure. There is talk of amending the ADA so that it harmonizes with Section 508 of the Rehabilitation Act.
Businesses cannot afford to wait for a demand letter or until they are actually sued to get ahead of this exposure. Web "designers" have morphed into web "remediators," spawning a new cottage industry. Insurance policies specifically tailored to this risk are inevitable.
Philip R. Voluck ([email protected]) is the managing partner of the Pennsylvania offices of Kaufman Dolowich & Voluck.
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