Claims Alleging ADA-Noncompliant Websites: What can insureds do to protect themselves?
By: Michael G. Hoy, J.D.
As some companies and nonprofit entities are painfully aware, an entire cottage industry of plaintiff attorneys who target public establishments for noncompliance with the Americans with Disabilities Act (ADA) has existed for many years. Previously, those attorneys focused on the ADA compliance of physical features of the bricks-and-mortar premises of public establishments—primarily, whether facilities or transportation vehicles are properly accessible for individuals with physical disabilities.
In recent years, however, many of these plaintiff attorneys have shifted focus to the accessibility of external, open-to-the-public websites, and as a result the number of lawsuits alleging that companies’ or nonprofits’ websites are noncompliant under the ADA has exploded. In light of this ever-increasing liability exposure, what can entities with public websites do to protect themselves? Some considerations:
- Although entities might naturally assume that plaintiff attorneys are more likely to target the websites of business-to-consumer companies or nonprofit-to-beneficiary entities than business-to-business companies, the data regarding trends in ADA website noncompliance lawsuits is still developing, and no company or nonprofit with a public website should consider itself immune from exposure.
- Unfortunately, while the U.S. Department of Justice (DOJ) has issued guidelines regarding the ADA-compliant accessibility of physical premises and vehicles, the DOJ has not yet issued guidelines regarding website accessibility. However, the Worldwide Web Consortium, which the DOJ has recognized as an authority regarding ADA compliance for websites, has issued two sets of guidelines, in 2008 and 2018 which offer useful guidance:
- If entities want to take affirmative steps to ensure their websites are ADA-compliant, they should research compliance solutions online and should also consider enlisting the aid of outside counsel or consultants specializing in this area.
- Depending upon the types of allegations raised in ADA noncompliance claims, coverage for defense costs, settlements and damage awards might exist under Employment Practices Liability (EPL) policies—this underscores the importance of insureds working with their insurance brokers to purchase appropriate amounts of the broadest-possible EPL coverage available. Insured companies and nonprofits also should promptly notify their insurance brokers if they ever receive a lawsuit or other written complaint alleging that they are not in compliance with the ADA.
Please contact your Socius producer to discuss available coverage solutions.