As the use of digital systems evolve in business, so do the legal challenges that businesses face. One such challenge that has been gaining traction is the rise in website accessibility claims under the Americans with Disabilities Act (ADA) and certain state laws. This issue has become a significant exposure to businesses, all of whom have cyber and website exposures that are relatively recent and not fully understood or treated, leading to costly legal battles.
Understanding the Issue
A July 14 article in the Wall Street Journal, titled “The Law Firm Hitting Businesses With Thousands of Disability Suits,” is an outstanding example of targeted claims. According to the article, the number of ADA-related website lawsuits approached 5,000 in 2023, driven by plaintiff’s firms that have turned this into a cottage industry. These firms target businesses that may be unaware of the need to make their websites accessible to individuals who are blind, deaf, or otherwise impaired.
Small businesses are particularly vulnerable to these claims, as they often lack the resources and knowledge to ensure their websites comply with ADA requirements. The lawsuits can be particularly damaging because they are frequently filed in states other than where the business operates, making defense more challenging and expensive. Many businesses find themselves in a difficult position, as settling the lawsuit may be less costly than defending it, despite the fact that they may have unknowingly violated accessibility standards.
A Real-Life Example
This risk is not just theoretical. IRMI (International Risk Management Institute) was hit with one of these suits in 2019. Although they were able to get the suit dismissed by demonstrating that they had substantial website accessibility projects underway and that the plaintiff, who was not an insurance professional, had no valid interest in viewing the videos on their site other than to pursue a lawsuit, the process was still costly. They incurred significant legal fees, highlighting the potential financial burden that these lawsuits can impose.
Protecting Your Business
Given the increasing frequency of these lawsuits, it is crucial to be educated about this emerging risk. Ensuring that your technology team has addressed the accessibility of your website is a key step in mitigating this exposure. There are various software programs available that can help businesses make their websites more accessible, potentially reducing the risk of being targeted by these suits. Ask your website host about this; they will be happy to update your website with this small additional feature, and it is not at all costly to update your site.
However, website accessibility is not just about compliance; it is also about broader risk management. This type of ADA lawsuit generally falls under Third Party Employment Practices Liability (EPL) policies. The same policies that protect you against wrongful termination and harassment suits can be endorsed to coverage actions against a “third party” – someone you did not hire – who may bring a case against you for ADA violations. If your business has a policy which does not include Third Party coverage, it is advisable to consider moving to a policy with broader coverage including Third Party coverage. Your specialty EPL insurance companies will do this, companies such Scottsdale. Taking risk management a step further, having expert advice on best website practices is another proactive measure.
The Bottom Line
At this time, there is no standalone coverage or Cyber add-on specifically addressing website ADA claims. Therefore, maintaining a robust EPL policy with Third Party coverage remains the best option for protecting your business. While Errors & Omissions (E&O) insurance might respond to such claims in some cases, it is not a guaranteed safeguard.
In conclusion, as the trend of digital ADA suits continues to rise, it is imperative that businesses take proactive steps to protect themselves. By staying educated, ensuring website accessibility, and securing the appropriate insurance coverage, you can help shield your business from these costly legal challenges.
*This article contains information provided by IRMI