Got You Covered Transcript

Apple Podcast Episode: HB Got You Covered Podcast: ADA Website Compliance

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Introduction: Welcome to Got you Covered, presented by Hickok and Boardman Insurance Group. The podcast where we unpack the countless ways in which insurance affects our lives and so you can properly manage your unique risk.

Ryan: All right. Welcome back, everybody, to another episode of Got you covered, presented
by Hickok and Boardman Insurance group.

I’m one of your hosts, Ryan Lee. I’m a client advisor with the firm. My other co host here is Mindy Varrow.

Hello, everybody. Excited to bring you another episode today for all the listeners out there.
Mindy, you have a claim story to share with us this time?

Mindy: Yeah, I do. And this is I’m going to focus on sort of one specific story, but I’ve seen this similar story popping up a lot lately in the last one to two years, so I thought it was worth a conversation

Mindy: So here’s the scenario. Client is a large online retailer. They have a beautiful website, lots of online purchasing. They get a letter in the mail from a plaintiff suing them for discriminatory practices due to their website not being Ada compliant. So for those of you who don’t know Ada, it’s the American With Disability Act Act and that essentially dictates compliance items businesses and organizations alike need to adhere to, to accommodate that community.

Mindy: So the goal of the act I think is a good one. Apparently it doesn’t apply to private clubs or religious organizations though, but I think pretty much other entity, whether it be government or private, must adhere to this. So in this situation, these guys, they’re a smaller company, like many, they have a website and they’re building a business based off of that. So they kind of get this letter and aren’t really sure what to do with it.

Mindy: So they first just involved an attorney. They were looking into it, then they were reaching out for some coverages. We can talk about where we think we would find coverage for this in this case. Ultimately they did have the coverage, but there was a caveat that unfortunately they had a very large deductible. So for what was happening on this situation, they came out of pocket. I don’t know the true amount, but I’m guessing I think it was around 60,000 and maybe more by the time I had heard. For them to be able to sort of engage in this lawsuit, squash it, settle it, really is what ultimately happened.

Mindy: And then also there were additional costs in terms of updating their website to comply with what these terms are. So that was one of the first I’d heard and because it was pretty catastrophic to the client, expensive, I started to mention it in subsequent conversations with clients moving forward. And a few actually said, oh yeah, we did, we got a letter like that too. So it seems after talking with the carriers and then hearing it with the client and at the carrier level, obviously they have a much broader view on the topic.

Mindy: They’re seeing this a lot and unfortunately there are some real predatory practices happening. I think there’s some big cases out there that sort of started that caught the attention of some smaller firms and then they sort of were like, okay, let’s troll some websites and see and just pluck off any little website we can find that isn’t compliant. And it sounds like the carriers were even seeing redundant names and who the plaintiff was like, Mary Smith is on like 100 different filings.

Mindy: And so unfortunately, what often happens is the client engages in this legal back and forth and then they ultimately settle the claim. Wow. It’s probably more of a nuisance than anything, but there is a real cost too. I kind of started to dig into this a little bit, and then it was surprised to hear how many of my clients had been affected by it, and many hadn’t even mentioned it to me either.

Mindy: And I said, hey, we probably have coverage for that. Let’s look into it. So I was surprised, I think, first of all, where the coverage was coming from. So posing a question to you, where do you think it would come from?

Ryan: Yeah, my head’s going in a few different directions on this one because this is not something I’ve had to deal with very much. I think I’ve had maybe two clients bring this type of thing up to me, and it’s never escalated into a claim. But it’s interesting, my first thought, because your rent for saying website is somehow it’s cyber related. It’s like it just seems like that’s the natural connection. But now I think about cyber coverage, I don’t think that’s right.

Ryan: My guess would be it would fall under your management liability policy somehow EPLI something in that realm.

Mindy: Exactly, yes. Because of the discriminatory allegation the nature of a discrimination claim, it does fall to the employment practices liability space. So for those listeners out there, you may have a management liability policy, as it’s called, or your DNO or your EPLI employment practices liability.

Mindy: Right. That’s the one you hope you never have to use. You never really want to use any of it. Right, right. But when the EPLI gets triggered, you’re like, oh, man, this isn’t good. But, yeah, I’m assuming in this policy we’re talking about not first party, but we’re talking about third party coverage.

Ryan: Correct. Which can be excluded, not included on that policy. So that’s definitely something to make sure you have if you have concerns about that. Right, Mindy?

Mindy: Definitely, yeah. I mean, I think you wouldn’t want to have the false sense of security on some of these sort of throw in EPLI coverages. Sometimes the carriers will throw in, hey, yeah, we’ll that at 75,000 or 100,000. But really important to note that usually is just a first party coverage, meaning your own employees allegations coming from them on some sort of discrimination or wrongful termination or something to that effect, but through policy is going to have the third party, too.

Ryan: It’s kind of interesting, as we were talking about this, prepared for this episode, I just did a quick search on some other big ADA lawsuits. You want to hear some of these?

Ryan: Yeah, kind of interesting. Here’s the first one. National association of the Deaf versus Harvard. Sounds like this lawsuit was filed by the National Association of the Deaf and four deaf and hard of hearing individuals who were charged who charged the school with discriminating against deaf and hard of hearing people by failing to caption the vast and varied array of online content they make available to the general public. Get the number on this one. It was ultimately settled for 1.57. $5 million.

Ryan: Wow, that’s a big number. Here’s one that’s interesting. National association of the Deaf. Again versus Netflix. This lawsuit was filed when Netflix was accused of failing to provide adequate closed captioning on the watch instantly streaming video programming. What do you think the number was on this one? Not quite as bad. This one’s 755,000.

Mindy: Wow. So there’s more on here. It’s really interesting. But you think about this, it’s not something you traditionally would think about when you’re trying to plan for what kind of insurance does your business need? Right. But clearly there are examples where unintentionally things like this come up, right.

Ryan: And it’s like, oh, well, what kind of limit should I carry? Mindy well, on that first one, 1.575 million. The million dollar limit, you know, wouldn’t have cut it. Right.

Mindy: So, yeah, you know, you think about how these claims can blow up. Of course, we’re talking about Harvard and we’re talking about Netflix. Right. So those are larger accounts, of course, but still yeah, right, right. Some big bucks. And it may maybe depends on the number of people affected. But I think, if anything, it’s just my mission in having these conversations the last few years was the awareness, because all of a sudden I heard about it.

Mindy: And then you know how sometimes it goes that way, you see something and then you just start to notice it all the time. And I think it was sort of a combination of it showed up once or twice. And then there are some of these predatory practices, I think, happening again, not that these claims aren’t valid in many cases, but I also think there’s a learning curve.

Mindy: A lot of these organizations are not intentionally setting out to disobey these compliance pieces. They just simply didn’t know they existed. And I mean, from what I understand, no website can truly be 100% compliant either. So you may have thought you did your due diligence and they could still find a loophole.

Mindy: From what I understand, a very low percentage of websites actually are ADA compliant. And I think in some of these cases, they’ve taken some older case law wording and kind of twisted it into a modern day Internet space and there’s loopholes to be found according to I’m just pulling all the facts right here.

Ryan: Yeah, right. I like it. Here’s some examples of the most common website accessibility barriers. Poor color contrast that affects people with limited vision or colorblindness. Use of color alone to give information. That’s interesting. Lack of text alternatives on images. No captions on videos. That’s probably a really common one. You put a video up on your website and you don’t have the subtitles on it. Right.

Ryan: Inaccessible online forms. So that’s interesting, having an online form or something that your customers or members need to be able to access. And then this one’s interesting too. Mouse only navigation or your website visitors should be able to navigate your website with a keyboard. I don’t even know if I would know how to do that.

Mindy: I agree. Those are interesting. Those are definitely things you wouldn’t think of that could trigger the situation. Yeah, there’s a lot there. And I mean, I think, again, bringing out the awareness to not only the business owners, but also to those entities that design websites or their internal It. People that are keeping up with these trends is just knowing.

Ryan: It sounds like these websites are ever evolving spaces and you have to kind of keep up with the expected changes that are happening. And I think, like I always say, with employment practices liability, it’s often just about the defense costs. So I think if you can be as proactive as you can make sure your website is designed properly but nobody’s immune, you could still face this.

Mindy: So then having a suitable policy in place that you can turn to, it seems from what I understand at the carrier level, when these entities that really aren’t that legit, let’s say, realize you’ve got insurance behind you. The claims either close out or settle pretty quickly and for a smaller amount if you’re on the hook fighting this battle alone. So, again, I think it’s sort of a whole other tier of value to that coverage. That sort of is a new thing that’s out there. It’s crazy.

Ryan: Yeah. The world of insurance. Good times. That’s been interesting. Any other thoughts? I mean, I guess maybe we better close caption this.

Mindy: Yeah, seriously. Look into that. If you’re seeing the subtitles on the video version of this, you know we figured it out. Right? But no. Anyway, that was a new one and again, I’ve seen it pop up a lot, so thought that was worth a discussion today. Love it. Cheers.

Ryan: Cheers. This has been another episode of Got You Covered. Presented by Hickock and Boardman Insurance Group. We’ll see you next time. Bye.