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Is Your Website ADA Compliant? Think This is a Joke? (Better Read On.)

Posted 10/1/2016

Has your utility been on the receiving end of a demand letter regarding your Website’s compliance with the ADA? Several have, so even if you haven’t gotten one, you may have heard about it from others through the grapevine, or at meetings or other gatherings of utility personnel. Pretty much everyone who has heard of this issue has had a similar, if unprintable, reaction. So what’s going on here?

Thus far, most of the letters seem to have ended up in the wastebasket, but this hasn’t stopped the law firms from sending them, and a number have been forwarded to insurers for their response and feedback. One of our D&O carriers advised us that they are seeing a growing trend of such “claims” or notices, and they tell us to expect this to continue, until the Federal Department of Justice issues an advisory opinion, or guidance on the subject. Right now, that guidance is expected to be released sometime in 2018, which is not exactly right around the corner. Until then, it seems likely that plaintiff’s attorneys are likely to continue to press this issue and court opinions are likely to vary widely, based on the results to date.

The basis of these claims is that Title III of the Americans with Disabilities Act requires places that are open to the public to not discriminate against individuals due to their disability or otherwise deny them “the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation.” So, what does that have to do with a Website?

According to many visually impaired or disabled plaintiffs, a website might be illegal if it is too hard to read, doesn’t offer options for users, or is difficult or confusing to navigate from page to page. While you may think that making a Web page accessible for the blind defies common sense, I can only say that we are not talking about common sense, we are talking about lawsuits. And, if you were handicapped by impaired vision and had to rely on special software with “screen-reader” capability, you might want to have a simple, clean way to navigate the Websites you visit.

The Title III rules quoted above apply to any Company that permits entry by the public. The question is what is “entry?” Does it require a physical space or is a Web site an invitation to “entry?” So far, the answers to the question are mixed.

As mentioned earlier, lawsuits have been brought and addressed by the lower courts in several different jurisdiction. With 45 such suits in 2015, and that number expected to rise in 2016, including claims brought against such companies as Patagonia, Ace Hardware, Aeropostale, Bed Bath and Beyond, among others, there is a growing need to reach some type of certainty. However, the results in those cases provide a mixed bag in terms of guidance. Case law from the Seventh Circuit has applied the ADA to websites, while other cases in the First, Second, and Eleventh Circuits have applied the ADA beyond “physical structures,” which offers an opportunity to the plaintiff’s bar to argue that the ADA extends even further, into virtual space. Conversely, the Third, Fifth and Ninth Circuits previously have applied the ADA provisions to physical locations only.

Businesses with no physical locations are also potentially subject to the provisions of the ADA. While the Ninth Circuit has ruled that EBay is not a place of public accommodation because they do not have a physical store, and therefore, they are not subject to the accessibility requirements of Title III, federal district courts in other circuits have found that Title III of the ADA can apply to web-only businesses.

Regardless of court interpretations, it seems that the Department of Justice is preparing for the ADA to be applied to the Internet. The DOJ’s regulations, whenever they are finally released, are expected to focus on the size and type of content on a website, and the complexity of navigating the content.

So, the question remains, what should you do right now? While it may be tempting to simply ignore the issue and wait until more guidance is available, you are likely to be better served by taking steps to improve the accessibility and ease of use of your Websites now. Many of these options will benefit both handicapped and non-handicapped users alike. Things you can do now include include any removing “time out” setting that require that a user respond promptly in order to stay logged on, offering audio versions of text (through links or otherwise), disabling functions that “fix” the text size and type that prevents the user from enlarging text or using easier to read fonts, and providing keyboard control for website functions rather then using “mouse only” functions.

While no “one-size fits all” approach can guarantee compliance, you should consult with a website designer to discuss whether your website can be updated to provide accessible options at a reasonable cost. One key area to focus on is alt-text features that can make the website more accessible for individuals using screen-reader technology. In addition, it is possible that a company may be compliant by providing a traditional webpage and an alternative “accessible” webpage, similar to what is already common with “mobile-friendly” versions of webpages. If you use a “template” type Web site provided by an association you should contact them about these concerns as well.

Finally, you may be wondering about how your insurance coverages may respond to these claims if you are actually sued. As long as there is no Bodily Injury or Property Damage involved, your General Liability coverage will likely not be involved. Nearly all Directors & Officers Liability, Employment Practices Liability and Cyber policies offer no coverage for costs incurred in connection with injunctive or non-monetary relief. Thus these liability policies wouldn't provide coverage for the cost of improving an insured’s website to comply with the ADA or other similar state statues. There may, however, be some limited defense expense coverage provided for this type of litigation. If you have specific questions you should contact your agent with them.