Could Your Website Be the Target of a Lawsuit?
In 1990, The Americans with Disabilities Act (ADA), which provides civil rights protection for individuals with disabilities against discrimination, was signed into law. The ADA provides regulation regarding employment, public entities, public accommodations and telecommunications.
According to Title III of the ADA, “discrimination on the basis of disability in the activities of places of public accommodations” is strictly prohibited. Businesses that are generally open to the public (schools, doctors’ offices, restaurants, hotels, retail stores, etc.) must comply with ADA Standards. Many businesses focus on the design and construction of their buildings, including but not limited to, accessible restrooms, automatic door openers, parking spaces, ramps and accessibility signs. However, websites may also be considered places of public accommodation.
The Department of Justice has not yet provided specific regulations regarding website accessibility and has postponed releasing any guidance until at least 2018. Although, in June of 2017, the first federal trial on website accessibility came to a verdict in Juan Carlos Gil v. Winn-Dixie Stores, Inc.
The defendant, a grocery store, was found in violation of Title III of the ADA. The plaintiff, a legally blind individual, was unable to access certain portions of the website. The Winn-Dixie website included features such as coupons and a store locator. The plaintiff, who shopped at his local Winn-Dixie almost weekly, must use screen-reader software due to his disability. Winn-Dixie’s website was not compatible with Gil’s screen reading software and did not permit access for the visually impaired through other means.
At the conclusion of the trial, the court required Winn-Dixie to ensure that their website conformed to the Web Content Accessibility Guidelines (WCAG) 2.0 criteria. Judge Scola also required any third party vendors who participate on its website to be fully accessible to the disabled by conforming to WCAG 2.0.
WCAG 2.0 provides guidance on how to make websites accessible to people with disabilities. WCAG 2.0 requirements include but are not limited to:
- Text alternatives for non-text content
- Captions for multimedia
- Functionality available using a keyboard
- Providing labels or instructions when content requires user inputs
This judgment has set a precedent not only for places of public accommodation, but also for third party vendors. It is imperative that web developers familiarize themselves with website accessibility and WCAG 2.0 requirements. Places of public accommodation, when served with a suit, are turning to their web developers, contending that they are entitled to be indemnified for costs and expenses associated with the website accessibility claim.
In 2017 alone, over 400 lawsuits have been filed alleging a failure to maintain an ADA compliant website that is accessible to the disabled. It is important that your clients have the proper insurance coverage in place to defend and indemnify these claims. Devon Park Specialty offers two products with limits available up to $5,000,000: Executive ViewPoint (EVP) and Errors and Omissions, Media and Privacy (EMP).
Executive ViewPoint (EVP): Designed for private companies and nonprofit organizations providing directors and officers, employment practices and fiduciary liability coverages.
Key advantages include:
- Broad definition of Wrongful Act including discrimination based on disability committed by any means including the internet, social media or email
- Lifetime Occurrence Reporting Provision
- Sublimit of $100,000 (defense and indemnity) for wage and hour claims, available in most states
Errors and Omissions, Media and Privacy (EMP): Our EMP product targets a broad range of businesses including miscellaneous professionals, technology companies and a wide variety of businesses (for cyber coverage), all with $15 million to $150 million in annual revenue.
Key highlights applicable to all coverage parts:
- Worldwide coverage territory
- Vicarious liability included
- Duty to defend policy with 100 percent allocation
We are ready to quote your submissions today. Please contact your Devon Park underwriter for more information or a quote.
As always, thank you for your support and business.
Contact Kenny Bang
Product Leader | 844-438-6775 Ext. 2923
Contact Erik Tifft
Product Leader | 844-438-6775 Ext. 2354
Written by Samantha Hildebrand
December 7, 2017