What business doesn't have a presence in cyberspace? What businessdoesn't design and continually develop its website to reach thelargest number of consumers?

What business uses a website that complies with the Americanswith Disabilities Act (ADA)? If the amount of litigation is ameasure, the answer to the last question is, "not enough."

This "new" exposure is firmly rooted in Title III of the ADA,which covers "public accommodations" and is enforced by the U.S.Department of Justice (DOJ). Despite a clear split among thefederal circuit courts regarding whether a website is covered underTitle III, DOJ has declared that all forms of electronic anddigital communication, including websites, are covered. Borrowingfrom the Rehabilitation Act, which requires federal electronictechnology to be accessible to disabled employees and thepublic, DOJ determined that the private sector's electronictechnology had to comply with the ADA as well. The plaintiffs' barpounced, and hundreds of businesses have been sued.

Courts flooded with suits

The worldwide growth of the internet has fostered countlessdilemmas about how to use it best — that is, attract the mostconsumers. Last among these dilemmas is how a company's websitemight fare in attracting disabled consumers. Today, hundreds of lawsuits alleging non-compliantwebsites are clogging the federal courts. On one side arecourts that require some connection to a brick-and-mortarestablishment, while other courts have deemed a presence incyberspace as sufficient to bring the site within the ADA'scoverage. Outside the courts, DOJ has developed its own aggressiveposition, pursuing virtually anyone with a presence in cyberspace.DOJ Enforcement

Initially, the DOJ confined its enforcement efforts togovernment agencies covered by Title II of the ADA. Around 2007,the National Federation of the Blind sued Target — and theplaintiffs' bar was off to the races. Netflix was a popular target.Harvard College and the Massachusetts Institute of Technology weresued by disabled students unable to access online course contentmandatory to receiving a passing grade.

What does the DOJ require to bring websites into compliance?Unfortunately, much remains a mystery as there are no guidelines orregulations regarding remediation, despite the DOJ's promises overthe last six years to publish them. The most recent projected dateof 2018 seems unlikely in the face of President Trump'sExecutive Order curbing agency regulations.

This is in stark contrast to remediating physical barriers in aplace of public accommodation, where adherence to strict publishedregulations ranging from the slope of a parking lot to how high atable may be from the floor must be strictly followed. In 2008 theWeb Content Accessibility Guidelines (WCAG) 2.0 were published bythe World Wide Web Consortium. Considered the "gold standard" forADA-compliant websites, they were adopted and are currently used bythe DOJ.

Most litigation is settled quickly to avoidratcheting up the plaintiff's attorney fees. At the firstnotice of a claim, a business should immediately assess its websiteand begin remediation.

Who else is being sued?

In addition to higher education, plaintiffs are suing retailers,banks, hospitality and even nonprofits. Virtually any businesscovered by the ADA is at risk. The same plaintiffs are alsotargeting smaller businesses that use websites to attractconsumers, including insurance professionals who rely on webpresences to allow consumers to purchase products and examine theirown accounts. Any mobile apps available to their insureds must alsobe ADA compliant.

How EPLI cover responds

Most of these claims arise under Employment Practices Liability(EPLI) policies because they are brought under the ADA. Whetherthis coverage continues to be written into EPLI policies remains tobe seen. Some believe the exposure is more properly included in amedia liability policy and even a cyber policy. Although most cyber policies contain discriminationexclusions, one that covers the wrongful collection ofinformation or the failure to implement privacy policies andprocedures may help defray some defense costs.

Coverage tracks that for a physical access claim to the extentthat a defense is provided, settlement costs are covered, andremediation is excluded.

From an underwriting perspective, the WCAG 2.0 Guidelines shouldbe used to determine the degree of compliance of an insured'swebsite, and what might be necessary to make it ADA compliant.These are the Guidelines used by the DOJ and the plaintiffs' bar.There's no reason underwriters can't use the same Guidelines intheir risk assessments.

Coverage must evolve

Litigation will continue to increase to even more dramaticlevels. With opening up access to the disabled, businesses willrealize there is a largely untapped consumer base. Carriers willface increased demand for products that cover this exposure. Thereis talk of amending the ADA so that it harmonizes with Section 508of the Rehabilitation Act.

Businesses cannot afford to wait for a demand letter or untilthey are actually sued to get ahead of this exposure. Web"designers" have morphed into web "remediators," spawning a newcottage industry. Insurance policies specifically tailored to thisrisk are inevitable.

Philip R. Voluck ([email protected]) is the managing partner ofthe Pennsylvania offices of Kaufman Dolowich &Voluck.