If Your Website Isn’t ADA-Compliant, You’re More Likely to Face Litigation

Attorneys and risk managers say lack of ADA-compliant websites is a growing issue and businesses should start reviewing their sites and checking their liability coverage.
By: | December 9, 2018 • 6 min read

As websites are now critical components of virtually every business, advocates for the disabled say they, too, should be accessible to the physically or mentally impaired.

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Several federal courts have recently ruled websites are “places” of business much like stores, offices and other classifications under Title III of the Americans with Disabilities Act (ADA). This means that much as a business should have adequate handrails and parking spots, it should also have a website design that can accommodate the disabled.

While there has yet to be any guidance from the Department of Justice, many courts are pointing to the Web Content Accessibility Guidelines as a blueprint for digital accessibility. Attorneys and risk managers say it’s a growing issue and that businesses should start reviewing their sites and checking their liability coverage.

ADA Moving Beyond Physical Place of Business

The ADA went into effect in 1990 and prohibits discrimination against individuals in all areas of public life, including schools, transportation, jobs and areas open to the general public.

The ADA defined disability, establishing guidelines for the reasonable accommodation process and how businesses and property owners are required to respond. In recent years, organizations and advocates for the disabled have been taking a closer look at Tittle III and its 12 categories of public accommodation. They say that with websites and virtual assets now a part of everyday life, those too must be accessible to those with disabilities.

“There’s a push to say that a place of public accommodation is more than just the brick-and-mortar [location]. It also includes websites,” said Deborah Bjes, operations and risk management leader, Swiss Re Corporate Solutions.

“Originally, people thought the ADA dealt more with literal places. The new definition courts are looking at considers websites that you could enter on your … computer.” — Michael D’Ambrise, VP, Beecher Carlson

Recent court cases have put website accessibility on the radar of risk managers as plaintiffs say some businesses are not doing enough.

In June 2017, a Florida District Court ruled in favor of the plaintiff in Juan Carlos Gil v. Winn-Dixie Stores, Inc., saying the store’s website was in violation of Title III of the ADA. It ordered the store to bring its website into compliance with the Web Content Accessibility Guidelines (WCAG).

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In August 2017 a visually-impaired individual brought a suit against Blick Art Supplies in New York, arguing the website was not designed according to the Web Content Accessibility Guidelines (WCAG 2.0). The U.S. District Court for the Eastern District of New York opened the door to digital accessibility, saying “a rigid adherence to a physical nexus requirement leaves potholes of discrimination in what would otherwise be a smooth road to integration.”

It’s a growing issue that businesses will have to keep an eye on, said Michael D’Ambrise, VP at Beecher Carlson. “Originally, people thought the ADA dealt more with literal places. The new definition courts are looking at considers websites that you could enter on your phone or on your computer,” he said.

ADA enforcement will likely be a pain point for companies that don’t make accommodations for visually impaired people who are unable to access essential company information online.

Deborah Bjes, operations and risk management leader, Swiss Re Corporate Solutions

There has been a surge in such litigation since the ruling, D’Ambrise said. Florida and New York have both seen the greatest number of lawsuits, with the Empire State having more than 630 website accessibility lawsuits filed in the first half of 2018. Defendants in lawsuits included hotels, restaurants, wineries and retailers.

Disabilities organizations and others say there is a need for greater digital access in a world where so many primary functions and public interactions are done online.

But many trade groups say there’s little clarity on how to define accessibility. Maris Harrilchak, senior director, government relations, the National Retail Federation, wrote on the organization’s blog that ADA standards are “less black-and-white” when it comes to online shopping.

“It is straightforward enough to measure the height of a restroom grab bar to test its ADA compliance. It is far more complex to accurately measure or predict how a specific website will interact with a specific assistive technology and its user,” Harrilchak said.

Perceivable, Operable, Understandable and Robust

While the Department of Justice has yet to introduce any standards on websites, many courts are pointing to the WCAG, D’Ambrise said. The guidelines are based on four main principles that content must be perceivable, operable, understandable and robust.

The WCAG generally state that content be presented in different ways, that there be text alternatives for non-text content and that content be easier for users to hear and see by separating foreground from background.

Websites should also have keyboard navigational functionality with enough time to read and use content and other ways for users to navigate. Designers must also ensure content is readable, useable and that webpages appear and operate in predictable ways.

Finally, content must be robust enough that it can be interpreted by a wide variety of user agents, including assistive technologies.

It can’t hurt to start looking for any “glaring issues,” D’Ambrise said. “You could go through [the guidelines] or have your tech people go through to make sure there is compliance. There are also vendors out there that will run tests for businesses to make sure they are in compliance.”

Companies operating in any of these states should also ensure they have the right insurance coverage in place that fully covers ADA discrimination claims, D’Ambrise added.

“They should look at their EPL coverage and make sure they have coverage for disability discrimination and that there is no bar on coverage that would extend to this particular issue.”

Looking Ahead

Many expect the claims to mount and the issue to take a greater focus in coming months. D’Ambrise noted in a white paper on the matter that the federal judge in the Blick case found that courts do not need agency regulations or standards by the Department of Justice to decide whether a website violates the ADA.

D’Ambrise added website accessibility claims are only a portion of the overall increase in ADA lawsuits: “2018 is projected to have the most ADA lawsuits in the past six years, with 4,965 lawsuits filed in the first six months of 2018, indicating a possible 30 percent increase over 2017 by the end of the year,” D’Ambrise wrote in his paper on the topic.

As of now, the WCAG are the best source of guidance, Bjes said. While many government websites already rely on these standards, many smaller businesses may not fully use them or even be aware of the issue.

The cost to upgrade some websites could be a burden for some small businesses, but it’s likely far less than the cost of a suit, Bjes said. “Plaintiffs’ attorneys argue that this is the gold standard and that we, the collective defendants in these lawsuits and businesses, should all comply with this particular standard.”

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Bjes said many larger companies may already be complying with most of these standards now. Even if not to cater to the disabled, marketers are finding benefits in ensuring their websites reach the largest audience possible.

“Corporations and businesses are already starting to push to these standards for a lot of different reasons, not only because there are lawsuits involved, but [also] because it’s good practice and helps them reach as many people as possible,” she said. &

Craig Guillot is a writer and photographer, based in New Orleans. He can be reached at [email protected]

More from Risk & Insurance

More from Risk & Insurance

Exclusive | Hank Greenberg on China Trade, Starr’s Rapid Growth and 100th, Spitzer, Schneiderman and More

In a robust and frank conversation, the insurance legend provides unique insights into global trade, his past battles and what the future holds for the industry and his company.
By: | October 12, 2018 • 12 min read

In 1960, Maurice “Hank” Greenberg was hired as a vice president of C.V. Starr & Co. At age 35, he had already accomplished a great deal.

He served his country as part of the Allied Forces that stormed the beaches at Normandy and liberated the Nazi death camps. He fought again during the Korean War, earning a Bronze Star. He held a law degree from New York Law School.

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Now he was ready to make his mark on the business world.

Even C.V. Starr himself — who hired Mr. Greenberg and later hand-picked him as the successor to the company he founded in Shanghai in 1919 — could not have imagined what a mark it would be.

Mr. Greenberg began to build AIG as a Starr subsidiary, then in 1969, he took it public. The company would, at its peak, achieve a market cap of some $180 billion and cement its place as the largest insurance and financial services company in history.

This month, Mr. Greenberg travels to China to celebrate the 100th anniversary of C.V. Starr & Co. That visit occurs at a prickly time in U.S.-Sino relations, as the Trump administration levies tariffs on hundreds of billions of dollars in Chinese goods and China retaliates.

In September, Risk & Insurance® sat down with Mr. Greenberg in his Park Avenue office to hear his thoughts on the centennial of C.V. Starr, the dynamics of U.S. trade relationships with China and the future of the U.S. insurance industry as it faces the challenges of technology development and talent recruitment and retention, among many others. What follows is an edited transcript of that discussion.


R&I: One hundred years is quite an impressive milestone for any company. Celebrating the anniversary in China signifies the importance and longevity of that relationship. Can you tell us more about C.V. Starr’s history with China?

Hank Greenberg: We have a long history in China. I first went there in 1975. There was little there, but I had business throughout Asia, and I stopped there all the time. I’d stop there a couple of times a year and build relationships.

When I first started visiting China, there was only one state-owned insurance company there, PICC (the People’s Insurance Company of China); it was tiny at the time. We helped them to grow.

I also received the first foreign life insurance license in China, for AIA (The American International Assurance Co.). To date, there has been no other foreign life insurance company in China. It took me 20 years of hard work to get that license.

We also introduced an agency system in China. They had none. Their life company employees would get a salary whether they sold something or not. With the agency system of course you get paid a commission if you sell something. Once that agency system was installed, it went on to create more than a million jobs.

R&I: So Starr’s success has meant success for the Chinese insurance industry as well.

Hank Greenberg: That’s partly why we’re going to be celebrating that anniversary there next month. That celebration will occur alongside that of IBLAC (International Business Leaders’ Advisory Council), an international business advisory group that was put together when Zhu Rongji was the mayor of Shanghai [Zhu is since retired from public life]. He asked me to start that to attract foreign companies to invest in Shanghai.

“It turns out that it is harder [for China] to change, because they have one leader. My guess is that we’ll work it out sooner or later. Trump and Xi have to meet. That will result in some agreement that will get to them and they will have to finish the rest of the negotiations. I believe that will happen.” — Maurice “Hank” Greenberg, chairman and CEO, C.V. Starr & Co. Inc.

Shanghai and China in general were just coming out of the doldrums then; there was a lack of foreign investment. Zhu asked me to chair IBLAC and to help get it started, which I did. I served as chairman of that group for a couple of terms. I am still a part of that board, and it will be celebrating its 30th anniversary along with our 100th anniversary.

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We have a good relationship with China, and we’re candid as you can tell from the op-ed I published in the Wall Street Journal. I’m told that my op-ed was received quite well in China, by both Chinese companies and foreign companies doing business there.

On August 29, Mr. Greenberg published an opinion piece in the WSJ reminding Chinese leaders of the productive history of U.S.-Sino relations and suggesting that Chinese leaders take pragmatic steps to ease trade tensions with the U.S.

R&I: What’s your outlook on current trade relations between the U.S. and China?

Hank Greenberg: As to the current environment, when you are in negotiations, every leader negotiates differently.

President Trump is negotiating based on his well-known approach. What’s different now is that President Xi (Jinping, General Secretary of the Communist Party of China) made himself the emperor. All the past presidents in China before the revolution had two terms. He’s there for life, which makes things much more difficult.

R&I: Sure does. You’ve got a one- or two-term president talking to somebody who can wait it out. It’s definitely unique.

Hank Greenberg: So, clearly a lot of change is going on in China. Some of it is good. But as I said in the op-ed, China needs to be treated like the second largest economy in the world, which it is. And it will be the number one economy in the world in not too many years. That means that you can’t use the same terms of trade that you did 25 or 30 years ago.

They want to have access to our market and other markets. Fine, but you have to have reciprocity, and they have not been very good at that.

R&I: What stands in the way of that happening?

Hank Greenberg: I think there are several substantial challenges. One, their structure makes it very difficult. They have a senior official, a regulator, who runs a division within the government for insurance. He keeps that job as long as he does what leadership wants him to do. He may not be sure what they want him to do.

For example, the president made a speech many months ago saying they are going to open up banking, insurance and a couple of additional sectors to foreign investment; nothing happened.

The reason was that the head of that division got changed. A new administrator came in who was not sure what the president wanted so he did nothing. Time went on and the international community said, “Wait a minute, you promised that you were going to do that and you didn’t do that.”

So the structure is such that it is very difficult. China can’t react as fast as it should. That will change, but it is going to take time.

R&I: That’s interesting, because during the financial crisis in 2008 there was talk that China, given their more centralized authority, could react more quickly, not less quickly.

Hank Greenberg: It turns out that it is harder to change, because they have one leader. My guess is that we’ll work it out sooner or later. Trump and Xi have to meet. That will result in some agreement that will get to them and they will have to finish the rest of the negotiations. I believe that will happen.

R&I: Obviously, you have a very unique perspective and experience in China. For American companies coming to China, what are some of the current challenges?

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Hank Greenberg: Well, they very much want to do business in China. That’s due to the sheer size of the country, at 1.4 billion people. It’s a very big market and not just for insurance companies. It’s a whole range of companies that would like to have access to China as easily as Chinese companies have access to the United States. As I said previously, that has to be resolved.

It’s not going to be easy, because China has a history of not being treated well by other countries. The U.S. has been pretty good in that way. We haven’t taken advantage of China.

R&I: Your op-ed was very enlightening on that topic.

Hank Greenberg: President Xi wants to rebuild the “middle kingdom,” to what China was, a great country. Part of that was his takeover of the South China Sea rock islands during the Obama Administration; we did nothing. It’s a little late now to try and do something. They promised they would never militarize those islands. Then they did. That’s a real problem in Southern Asia. The other countries in that region are not happy about that.

R&I: One thing that has differentiated your company is that it is not a public company, and it is not a mutual company. We think you’re the only large insurance company with that structure at that scale. What advantages does that give you?

Hank Greenberg: Two things. First of all, we’re more than an insurance company. We have the traditional investment unit with the insurance company. Then we have a separate investment unit that we started, which is very successful. So we have a source of income that is diverse. We don’t have to underwrite business that is going to lose a lot of money. Not knowingly anyway.

R&I: And that’s because you are a private company?

Hank Greenberg: Yes. We attract a different type of person in a private company.

R&I: Do you think that enables you to react more quickly?

Hank Greenberg: Absolutely. When we left AIG there were three of us. Myself, Howie Smith and Ed Matthews. Howie used to run the internal financials and Ed Matthews was the investment guy coming out of Morgan Stanley when I was putting AIG together. We started with three people and now we have 3,500 and growing.

“I think technology can play a role in reducing operating expenses. In the last 70 years, you have seen the expense ratio of the industry rise, and I’m not sure the industry can afford a 35 percent expense ratio. But while technology can help, some additional fundamental changes will also be required.” — Maurice “Hank” Greenberg, chairman and CEO, C.V. Starr & Co. Inc.

R&I:  You being forced to leave AIG in 2005 really was an injustice, by the way. AIG wouldn’t have been in the position it was in 2008 if you had still been there.

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Hank Greenberg: Absolutely not. We had all the right things in place. We met with the financial services division once a day every day to make sure they stuck to what they were supposed to do. Even Hank Paulson, the Secretary of Treasury, sat on the stand during my trial and said that if I’d been at the company, it would not have imploded the way it did.

R&I: And that fateful decision the AIG board made really affected the course of the country.

Hank Greenberg: So many people lost all of their net worth. The new management was taking on billions of dollars’ worth of risk with no collateral. They had decimated the internal risk management controls. And the government takeover of the company when the financial crisis blew up was grossly unfair.

From the time it went public, AIG’s value had increased from $300 million to $180 billion. Thanks to Eliot Spitzer, it’s now worth a fraction of that. His was a gross misuse of the Martin Act. It gives the Attorney General the power to investigate without probable cause and bring fraud charges without having to prove intent. Only in New York does the law grant the AG that much power.

R&I: It’s especially frustrating when you consider the quality of his own character, and the scandal he was involved in.

In early 2008, Spitzer was caught on a federal wiretap arranging a meeting with a prostitute at a Washington Hotel and resigned shortly thereafter.

Hank Greenberg: Yes. And it’s been successive. Look at Eric Schneiderman. He resigned earlier this year when it came out that he had abused several women. And this was after he came out so strongly against other men accused of the same thing. To me it demonstrates hypocrisy and abuse of power.

Schneiderman followed in Spitzer’s footsteps in leveraging the Martin Act against numerous corporations to generate multi-billion dollar settlements.

R&I: Starr, however, continues to thrive. You said you’re at 3,500 people and still growing. As you continue to expand, how do you deal with the challenge of attracting talent?

Hank Greenberg: We did something last week.

On September 16th, St. John’s University announced the largest gift in its 148-year history. The Starr Foundation donated $15 million to the school, establishing the Maurice R. Greenberg Leadership Initiative at St. John’s School of Risk Management, Insurance and Actuarial Science.

Hank Greenberg: We have recruited from St. John’s for many, many years. These are young people who want to be in the insurance industry. They don’t get into it by accident. They study to become proficient in this and we have recruited some very qualified individuals from that school. But we also recruit from many other universities. On the investment side, outside of the insurance industry, we also recruit from Wall Street.

R&I: We’re very interested in how you and other leaders in this industry view technology and how they’re going to use it.

Hank Greenberg: I think technology can play a role in reducing operating expenses. In the last 70 years, you have seen the expense ratio of the industry rise, and I’m not sure the industry can afford a 35 percent expense ratio. But while technology can help, some additional fundamental changes will also be required.

R&I: So as the pre-eminent leader of the insurance industry, what do you see in terms of where insurance is now an where it’s going?

Hank Greenberg: The country and the world will always need insurance. That doesn’t mean that what we have today is what we’re going to have 25 years from now.

How quickly the change comes and how far it will go will depend on individual companies and individual countries. Some will be more brave than others. But change will take place, there is no doubt about it.

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More will go on in space, there is no question about that. We’re involved in it right now as an insurance company, and it will get broader.

One of the things you have to worry about is it’s now a nuclear world. It’s a more dangerous world. And again, we have to find some way to deal with that.

So, change is inevitable. You need people who can deal with change.

R&I:  Is there anything else, Mr. Greenberg, you want to comment on?

Hank Greenberg: I think I’ve covered it. &

The R&I Editorial Team can be reached at [email protected]