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Blindsided: Website Accessibility Suits Hitting Businesses

Businesses in many industries are becoming targets in a wave of liability litigation. Since 2017, courts have considered more than 3,000 lawsuits around the country alleging that defendants’ websites violate the accessibility requirements of the Americans with Disabilities Act and other civil rights laws. Many businesses facing such suits have been unaware that their websites prevent individuals with disabilities from accessing all of their sites’ features, such as job applications or lists of physical locations, as in the case of retail stores or restaurants.

 

Even if a single complaint seeks modest damages of a few thousand dollars, a business may incur much greater expenses of time and money in defending the suit. The number of such suits with nearly identical allegations, filed over the past two years, suggests that plaintiffs’ law firms are engaging in high-volume litigation.

Many organizations shocked to learn that their websites’ functionality can trigger liability exposure have another surprise: they might already have coverage for the costs of defending such suits.

WHY THERE’S A PROBLEM

The ADA was enacted in 1990 (source), before the public Internet existed. In fact, the first web page was not created until 1991. In 2003, the US Department of Justice addressed website accessibility in a technical assistance document (source). Under the federal law, government agencies and private businesses that offer places of public accommodation must provide access to individuals who have visual and/or hearing impairments, and who have mobility challenges. Prior to 2003, ADA compliance primarily focused on installing ramps, elevators and other equipment to remove tangible barriers to the disabled. Since 2003, however, the law also has applied to disabled individuals attempting to access information on public websites. Notably, advancements in Internet technology have also made it easier for plaintiffs’ lawyers to identify websites that are not ADA-compliant.

A website’s design can prevent access to disabled individuals in ways similar to building designs that fail to consider the ways that people with different abilities navigate. A staircase, for example, presents a big challenge to a person in a wheelchair, as do webpage images that a blind person cannot view.

Assistive technologies such as screen readers have become important tools for those with visual and auditory disabilities. A widely used screen reader is known as Job Access with Speech, or JAWS (source). Screen readers work by rendering website content into text. Therefore, non-text elements such as photographs, visual illustrations, video files and even link buttons are problematic, unless they have text-based descriptions or captions.

Most businesses do not intend to create barriers for customers with disabilities or ignore laws requiring accommodation for the disabled, but that does not deter some plaintiffs’ firms from litigating, whether their allegations have merit or not. Numerous lawsuits citing the ADA and state laws such as California’s Unruh Civil Rights Act (UCRA) have been filed in California and other states. A hotbed of ADA website accessibility litigation is the U.S. District Court for the Southern District of New York. In 2018, more than 1,500 such suits were filed in the Southern District, according to law firm Seyfarth Shaw LLP. After issuing several rulings in favor of plaintiffs, the court has begun pushing back on website accessibility complaints (source).

In May 2019, the district attorney in Riverside County, California, brought a lawsuit against five individuals — four lawyers and a person who served as a plaintiff in at least 200 ADA suits — for filing more than 100 cases with bogus ADA allegations (source). These suits did not involve website accessibility specifically, but the litigation volume indicates a “drive-by lawsuit” approach by some plaintiffs’ lawyers.

So far, litigation alleging websites violate accessibility laws has been in the form of individual lawsuits against businesses large, midsize and small. Businesses with a significant online presence could face class actions. That is potentially a much larger liability exposure, calling for stand-alone policies with higher limits.

DEFENSE COST COVERAGE

Retail agents and their insureds might not realize that coverage for the cost of defending these ADA lawsuits may be available under existing insurance policies. The most likely source of coverage is employment practices liability insurance (EPLI). EPLI policies typically provide for coverage of third-party discrimination, either as part of the standard policy or as an endorsement.

A third-party wrongful act covered under EPLI is commonly defined as “discrimination by an insured in his, her or its capacity as such against a third party based on such third party’s race, color, religion, age, sex, national origin, disability, pregnancy, sexual orientation or preference, or other status that is protected pursuant to any applicable federal, state or local statute or ordinance.” EPLI generally defines a wrongful act as including discrimination, wrongful deprivation of career opportunity and infliction of emotional distress.

EPLI policies will pay for defense costs but not for website improvements or corrections, bodily injury or property damage. But there is an important caveat for retail agents and insureds: if the insured intends to file an insurance claim, it must provide timely notification of the lawsuit to its insurer. Demands in ADA lawsuits may fall within a deductible or self-insured retention, but failure to notify the insurer could result in loss of coverage for other litigation.

Other forms, such as a business owners policy (BOP), may also contain a limited amount of EPLI protection but might not cover third-party claims. Lawsuits over website accessibility are an exposure that blends media and employment practices, so coverage could be available under amended cyber policies. Some insurance markets offer sublimited ADA Non-Compliance coverage for damages and defense costs in cyber policies, on a case-by-case basis.

A DEFENSE LAWYER’S PERSPECTIVE

Any organization with a website open to the public is a potential target for website accessibility lawsuits alleging violations of the ADA, said Gerald L. Maatman Jr., a partner in Chicago with Seyfarth Shaw LLP, a leading national employment and labor law firm. The ADA’s accessibility requirements (in Title III of the Act) apply to all companies, unlike other federal and state employment laws, which apply to organizations with varying minimum numbers of employees, he added. Hence, most companies offering goods and services to customers are covered.

“Plaintiffs’ law firms have been working their way through the Fortune 2000, but I’ve also seen a family-run bed-and- breakfast sued, as well as Internet-only businesses, over website accessibility issues,” Maatman said. These lawsuits “are today’s version of the ‘drive-by’ litigation employers saw in the 1990s, when complaints targeted businesses in strip malls for failing to have proper signage and parking lot markings for the disabled,” he explained.

“Demand letters and lawsuits on website accessibility are a ‘gotcha’ situation for employers. You’re either compliant or not. The fact is, if you haven’t checked your website to make sure it’s compliant, you are likely behind the curve,” he said. He suggested that businesses conduct website audits and make any required patches to ensure access to visually and/or hearing impaired individuals.

FIXING THE WEBSITE

Fortunately, fixing the problem of website inaccessibility is relatively straightforward. The US Department of Justice has several resources for website owners and programmers, including a toolkit for state and local governments (source). Solutions that improve accessibility for the disabled include:

  • Adding a Hyper Text Markup Language (HTML) tag to every image and graphic allowing for brief or longer amounts of text to describe the element.
  • Offering documents in alternative text formats, such as Rich Text Format (RTF) or HTML, in addition to Portable Document Format (PDF).
  • Providing text captions and audio descriptions for video files.

Additional website programming to solve the accessibility issue may not involve a significant amount of time or expense, but insureds are advised to explore solutions with professional website designers and programmers. Some insurers are offering tools to help policyholders evaluate their website accessibility to ensure ADA compliance.

BOTTOM LINE

As more businesses become aware of a liability exposure few realized they had, securing appropriate insurance protection is critical. One of the many advantages of EPLI coverage is access to carriers’ risk management resources that can mitigate insureds’ liability exposure. Retail agents and their insureds should partner with an experienced wholesale specialist to better understand emerging risks and find the broadest coverage in a complex marketplace.

Contact your CRC Group producer for more information.

Contributors:

  • Lisa Burbage is a Senior Vice President in CRC’s Seattle, WA office and member of the ExecPro Practice Advisory Committee.
  • Andy Herbert is a Senior Vice President in CRC’s Dallas, TX office and member of the ExecPro Practice Group.
  • Dan Myer is a Director in CRC’s Tampa, FL office and member of the ExecPro Practice Group.

About Seyfarth Shaw

Seyfarth Shaw LLP provides thoughtful, strategic, practical legal counsel to client companies and legal teams of all sizes. With more than 850 attorneys in the U.S., London, Shanghai, Hong Kong, Melbourne and Sydney, we offer a national platform and an international gateway to serve your changing business and legal needs in litigation, employment, corporate, real estate and employee benefits.