Cyber Insurance Blog

ADA Lawsuits Reveal New Exposures for Business Owners

ADA Lawsuits Reveal New Exposures for Business Owners

If your clients have a commercial website, there’s a good chance they could be vulnerable to federal lawsuits under Title III of the Americans with Disabilities Act (ADA). With ADA compliance insurance, business owners can guard against the increasing risk of Title III lawsuits.

ADA Title III requires organizations to provide public accommodations to serve and communicate effectively with customers with disabilities. In addition, it requires online accommodations, such as web content and other electronic information technology, to ensure that websites can be used by people with disabilities. Websites must follow the Web Content Accessibility Guidelines (WCAG), which are explained in further detail below.

Software developer wearing a dress shirt works on laptop in a startup environment.

The rate of ADA-based web lawsuits jumped by 177% from 2017 to 2018. These rates held roughly steady in 2019. The most recent WebAIM research report confirms that violations have held steady through February 2020: 98.1% of the top 1 million website home pages had detectable WCAG failures.

Understanding the relevant ADA accessibility issues is important for understanding the appropriate insurance products and services that can protect against a lawsuit. ProWriters stays up to date with the latest regulatory liability developments and offers expertise to insurance brokers seeking to find the right insurance coverage for their clients.

What You Need to Know About ADA Regulations

The rash of recent lawsuits centers on ADA Title III, which requires businesses to offer and incorporate accessibility features. Title III prohibits disability-based discrimination for “places of public accommodations.” Many businesses are sued for infractions related to physical premises that many of us are familiar with, such as wheelchair accessibility. However, recent lawsuits have focused on website accessibility, highlighting an exposure for which many businesses are not prepared.

ADA Title III regulations stipulate that websites must be accessible for people who are hard of hearing, visually impaired, or have any other type of disability. There are several web features that can be incorporated to achieve compliance with the Web Content Accessibility Guidelines (WCAG). A few examples include:

  • Text captions accompanying images that are compatible with screen readers for visually-impaired users.
  • Adjustment options for font size and color to aid users who are visually impaired.
  • Audio descriptions and audio captions for users who are hearing impaired.
 

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ADA Title III Poses Significant Liability Risks

Record numbers of ADA website accessibility lawsuits and settlements indicate the level of exposure that many businesses face. One prominent example is the landmark case against Winn-Dixie stores which was decided in 2017. The Southern District of Florida sided with the plaintiff, a visually-impaired man with cerebral palsy, who sued Winn-Dixie because its website was not compatible with his adaptive screen reader. The judge ruled that Winn-Dixie, despite having invested $7 million in early 2017 to improve its website, had not made a concerted effort to make the website more accessible to the disabled.

Other cases further illustrate similar liability risks. In January 2019, the Ninth Circuit Court overturned the dismissal of a case against the chain Domino’s Pizza from a district court. The district court had initially dismissed a website accessibility lawsuit against Domino’s. The Ninth Circuit Court disagreed with this ruling, asserting that ADA website accessibility did indeed apply to Domino’s. This case only adds to the growing body of legal decisions that favor plaintiffs when it comes to website accessibility litigation.

What Kind of Insurance Covers ADA Accessibility?

Because recent lawsuits focus on websites and cyber-driven accessibility issues, some assume that cyber liability coverage would apply here. However, cyber liability policies do not cover this particular exposure. Cyber policies are designed to cover the first- and third-party exposures associated with a cyber incident, such as a cyber breach. These policies do not include language regarding ADA accessibility.

ADA accessibility falls under employment practices liability insurance (EPLI). Although EPLI can be sold as a separate stand-alone product, it is often sold as part of a management liability package. ProWriters offers EPLI as part of our comprehensive Directors and Officers (D&O) insurance packages. These policies protect company officers in the event of a D&O-related claim. ADA-related settlements can range from tens of thousands to millions of dollars, a cost many businesses could never afford. Insurance is an important and increasingly necessary litigation protection measure.

Protect Your Clients With the Help of ProWriters

The experts at ProWriters are here to help. Because this issue is constantly evolving, we offer expertise to answer any questions you may have when speaking to clients. Originally formed to serve the E&O interests of financial service firms, ProWriters has grown to cover a wide range of exposures. The brokers and agents who work with us value our dedication to customer support as well as the niche knowledge we provide to help them better serve their clients.

For questions about employment practice liability insurance or other coverage types, please schedule a call with a ProWriters insurance specialist.

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