If your clients have commercial websites, there’s a good chance they could be vulnerable to federal lawsuits under Title III of the Americans with Disabilities Act (ADA). With ADA 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 people with disabilities can use websites. Websites must follow the Web Content Accessibility Guidelines (WCAG), as explained in further detail below.
The rate of ADA-based web lawsuits jumped by 177% from 2017 to 2018, and these rates held roughly steady in 2019. The most recent WebAIM research report confirms that violations have held constant through February 2020: 98.1% of the top 1 million website home pages had detectable WCAG failures.
Understanding the relevant ADA accessibility issues is essential for understanding the appropriate ADA insurance products and services to 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 Compliance
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 companies 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 many businesses have not prepared for.
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. Companies can incorporate several web features to comply 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 visually impaired users
- Audio descriptions and audio captions for users who are hearing impaired
For businesses that create websites, any ADA violations that arise from their clients can end up coming back to haunt them. Therefore, website companies need technology E&O insurance because there is no ADA guarantee for them. Click here for a technology E&O insurance application.
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 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 it 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 regarding 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 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 insurance falls under employment practices liability insurance (EPLI). Although EPLI can be a standalone product, it is often 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. Therefore, ADA insurance is an essential 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 with clients. Initially 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 and the niche knowledge we provide to help them better serve their clients.