There is an unexpected source of potential liability facing American businesses and governmental agencies — one that may be as near to you as you are right now to your computer or smartphone.
Today, 3.4 billion people have nearly instant access to the internet, but some have more limited access, including to sites offering government services, because those sites assume that we can see the screen or hear the soundtrack.
Disparity of online access is no less a barrier than is a series of steps up to a store's entrance, and can create liability risks under the Americans with Disabilities Act. Insurance professionals should consider adding “website accessibility” to their risk checklists.
The ADA’s concept of accessibility is being applied to virtual business portals, just as it has been to physical doorways. A seminal 2006 case, National Federation of the Blind v. Target Corp., was the first to certify a class action to enforce the ADA’s accessibility requirement against an online merchant. The case ultimately settled for $6 million, and the court awarded over $3.7 million in attorney’s fees. Numbers like those make class-action plaintiffs’ law firms feel giddy.
Fast forward 10 years from the Target case. In 2016 some lawyers are getting settlements by just threatening to file suit, as reported in “The Scourge of Website ADA Claims,” a May 2016 white paper by Bill Boeck, senior vice president and insurance and claims counsel at Lockton Cos.
Future of ADA website access claims
As of this writing, the U.S. Department of Justice is expecting to issue regulations before 2016 ends that will apply ADA web accessibility standards to state and local government agencies, with certain exceptions, most notably for government entities with populations less than 50,000. The Justice Department also plans to issue a regulation in 2018 that would apply to “public accommodations,” which include:
- Service establishments, including insurance, law, accounting, medical and other professional offices; banks; and services ranging from barber and beauty shops to funeral parlors.
- Places of lodging, except those with five or fewer rooms for hire and that the owners also occupy as their residences. Inns, hotels, motels and similar facilities are in this category.
- Any establishment serving food or drink.
- Exhibition or entertainment halls, including theaters, halls, and stadiums.
- Public gathering places, such as convention enters, and lecture halls.
- Sales or rental establishments and shopping centers, including grocery, hardware and clothing stores.
- Public transportation stations.
- Public displays and collections, such as museums, libraries and galleries.
- Recreational facilities like parks and zoos.
- Any private school or place of education.
- Social service centers, from adoption to day care to senior care, homeless shelters and food banks.
- Gyms, spas, and other places or exercise or recreation.
These categories cover a lot of liability insurance policyholders, who should be asking whether they, in turn, are covered against online disability discrimination claims. The proposed regulations on public entities would give a two-year grace period before the Justice Department begins enforcement efforts, but the grace period would not halt the filing of ADA actions in court.
More than half of all internet access in the United States is by way of mobile device. Ensure that a site's ADA accessibility features translate to the small screen. (Photo: Shutterstock)
Just what is 'accessibility?'
The Justice Department proposal for public agency websites would adopt an international standard for website accessibility, with some changes.
The World Wide Web Consortium, or W3C, has developed a series of Web Content Accessibility Standards, currently in its second version (WCAG 2.0). Its principles are described in four adjectives:
- Perceivable: Texts, pictures and sounds need built-in alternatives, such as captioning for those with no or low-level hearing, and audible prompts and descriptions for visual content. Images and sounds should be easier to see and hear. The so-called “Captchas” — those little squiggly security images that users have to translate and input to prove that they aren’t robots, are an impenetrable barrier for low-vision users, unless they have an audio option.
- Operable: What’s the use of being a user if you can’t use the website? Users with disabilities may take a little longer to navigate online or need online guidance to access content or input their responses. And here’s a safety tip from WCAG: “Do not use content that causes seizures.”
- Understandable: Sites need to be written clearly, using fonts that don’t look like doctors’ scrawls, and with functions that predictably behave as expected. Sites also need a degree of forgiveness of human input errors, such as hints that the user might have meant to put the “dot” before the “com.”
- Robust: This is an overused “Execuspeak” word, but in this context it means being compatible with evolving input devices and methods. More on that idea below.
The details underneath these basic concepts use jargon that gets a bit thick, but fortunately insurance brokers don’t need to have a detailed knowledge of WCAG 2.0 to help their clients avoid ADA web access claims. Knowing that such claims exist and that there are objective standards for accessibility may be enough to ask, “Say, Randi, is that website designer that you’ve mentioned going to be sure your redesign complies with the Department of Justice’s proposed requirements?”
Other issues to consider
The Justice Department proposal exempts archived material on websites from having to be revised to meet ADA standards. There may be some archived documents online — such as historical flood or other loss records — that insurance professionals and their clients will want to convert to accessible formats, simply as a matter of client or customer service.
For example, an insurance brokerage firm might choose to convert historical flood or other loss records so that visually impaired persons can assess for themselves the levels of risk they face. But that’s a service issue, not a legal one. If a firm is doing a website reboot, it’s a good idea to discuss archived materials with the web designer to avoid document conversions as a separate task after the site is launched.A more pressing consideration is accessibility on mobile devices. A recent report concluded that over half of all internet access in the U.S. is now from mobile devices. Will the brokerage firm’s or its clients’ ADA accessibility features translate to the small screen?
The internet, once a geekish novelty, has become an indispensable resource for people of all ages and backgrounds — from the grandma Skyping a toddler in a distant state to a student researching a term paper.
Here are the take-away points that you may want to discuss within your brokerage firm, and with clients:
- The trend toward accessibility has been slow, but its direction is clear, and it will pick up speed as regulations are issued that set objective standards of compliance. A stitch in time may save more than nine.
- Vendors, consultants, and high school students can create attractive and functional websites. Careful consumers of those services who want to update their sites, and then get back to their real business, should think about ADA compliance before regulations require it. In the long run they can save a costly retrofit, and maybe avoid a claim.
- ADA website compliance is also a topic for brokers and underwriters at insurance renewal time. Would an ADA claim like the one against Target be covered, or would it fall into the cracks between policies?
- Better serving the disability community is a good business practice, whether it’s putting in that long-overdue entry ramp or getting rid of that tiny font size.
Louie Castoria is a partner at Woodbury, New York-based law firm Kaufman Dolowich & Voluck LLP, and directs its West Coast Professional Liability Practice Group. He also chairs the Insurance Agent/Broker Committee of the Professional Liability Defense Federation.