The continued massive wave of demand letters and web accessibility lawsuits in 2017 has brought with it the need for business owners to review their websites for compliance, as well as review their insurance policies to determine if their coverage extends to ADA public accommodation disability claims, that include their website.
According to Steven Becker, a partner in the Vorys Washington, D.C. office, though some policies cover the legal defense of Title III claims and financial judgments, they do not cover the cost to bring business facilities into compliance with ADA regulations. Policyholders should also determine if their coverage carries with it exclusions to violations of state or federal regulations.
Providing equal access for disabled individuals to your website is no different than providing equal access to a physical place of business. However, many companies continue to ignore the issue altogether, believing that if their insurance does not cover the claim, they can rely on an indemnification clause in their contract with the web developer that performed the work. Relying on your insurance policy may seem like a good idea, but case law appears to be building a consensus that will render contractual and common law indemnification claims unenforceable under the Americans with Disability Act and Fair Housing Act accessibility litigation
How serious is this? On a scale from 1-10, I would give it a 9.
With the increased focus on web accessibility by advocacy groups, plaintiff attorneys, and “filing mills,” the risk of being sued will continue to rise. Businesses are now receiving demand letters that are requesting the recipient pay up to $20,000, correct issues with their website, and bring the site into compliance with the standards set by the World Wide Web Consortium. The demand usually includes contracting with the plaintiff to monitor the ongoing compliance of the website – for a predetermined fee. If things weren’t bad enough, there are now “Whistle Blower” websites, like http://accessibilityblacklist.com, which are listing corporate websites that are inaccessible.
We recommend that Human Resource Teams begin taking an active role in the auditing of their corporate website, by using simple and easy to use website scanning tools like, AuditGenie.com, that provide a risk analysis of your site. You do not need to be a programmer or web developer to read a credit report; ADA website scanning tools work the same way by providing an easy to understand “website health report.” If the site is not compliant, you can disseminate work to your internal or outsourced web developer. It is important to monitor the health of the site by conducting scheduled risk management analysis to ensure that violations do not exist.
We also suggest that HR creates policies regarding website accessibility and create training programs that educate recruiters and customer service teams as to how to interact with complaints or issues regarding accessibility issues visitors to your site face. It wouldn’t hurt to create and post an accessibility policy on the website, as well as a contact email and phone number that users can report accessibility issues that they are facing.