Traditional businesses have worried about American with Disabilities Act (ADA) violations for years, with great effort to make sure physical spaces are wheelchair accessible and employment decisions are carefully made to comply with the law. Those who found themselves at the wrong end of an allegation found the ordeal extremely expensive and time consuming. A standard general liability insurance policy will likely not cover an ADA violation as there is no bodily injury or property damage to trigger coverage. Depending on the exact allegations, there may be coverage under the personal injury section. An employment practices policy should cover allegations from employees and paying extra for third party coverage will provide explicit coverage for lawsuits from customers and other third parties.
A new threatened trend in litigation is suing website developers who do not provide accessible websites. The National Federation of the Blind has sued Target and Netflix has faced several suites (including one from the National Association of the Deaf). Peapod became a very public face of the actions in November when they signed an agreement with the Justice Department to make their smartphone applications more accessible.
It is likely that this litigation will continue and the push for accessible applications will continue. We expect framework builders to face stiff pressure to include these features natively and expect a tipping point in the coming years where all consumer sites are expected to comply. Good risk management calls for companies to embrace this movement sooner rather than later to protect themselves from the costs of litigation and emergency software upgrades.
Tech firms, especially start-ups with economical insurance programs, should look closely at their errors and omissions policies to ensure discrimination and regulatory proceedings are not excluded from coverage. Many E&O policies placed by generalist agents into standard insurance markets exclude coverage for these things. Working with an expert insurance broker dedicated to the tech and startup space will allow you to secure the broadest terms at the lowest price.
No company wants to be the target of a government complaint, the public relations and legal costs can be difficult to overcome. The best way to avoid ADA investigations is to stay ahead of industry standards and involve lawyers quickly when a complaint or request for information is received from the government. One of the best values of a properly constructed professional liability insurance program is the claims assistance in responding to an inquiry. Contact an expert broker today to discuss insurance for regulatory investigations.