Seven Things Retailers Can Do Now

Ensure Gold-Plated Customer Service

If you are in the process of procuring third-party technology for your retail website or mobile app, review the language in your procurement agreements carefully to ensure that the applications already enable accessible technology solutions, can be updated quickly to enable such solutions and that the vendor provides adequate support for these adaptations. Similarly, if you are in the process of procuring new POS devices, ensure that the device you select enables, or can be adapted to enable, accessible technology solutions.

One of the most effective ways of reducing the risk of an ADA lawsuit and the unfavorable publicity that comes with it is to ensure that customer service lines are available —and able—to assist customers who may have difficulty utilizing your website for purchases or who experience other problems with your website due to blindness, low vision, or other reasons.

Make Conscious Procurement Decisions to Utilize Accessible Technologies

If you are in the process of procuring third-party technology for your retail website or mobile app, review the language in your procurement agreements carefully to ensure that the applications already enable accessible technology solutions, can be updated quickly to enable such solutions and that the vendor provides adequate support for these adaptations. Similarly, if you are in the process of procuring new POS devices, ensure that the device you select enables, or can be adapted to enable, accessible technology solutions.

Retain Accessibility Experts

Retain outside legal counsel and a reputable technology vendor specializing in website accessibility to review your website, assess your litigation risk and assist you in your remediation efforts. Technological assessments can be completed relatively quickly, usually within a month or two, but updates and accessibility-focused fixes can take more than a year to implement throughout an entire website.

The assessment should include manual testing as well as automated testing. It should also include a review of internal processes: (1) to ensure that continuous website updates and upgrades do not undo any work that has already been done to make your website accessible and (2) to sensitize management and in-house web developers to accessibility issues, legal obligations and litigation risks. Retention of outside legal counsel at the outset of this process is particularly important to ensure that the report generated by the technology vendor may be considered privileged if a lawsuit is pending or threatened.

Set a Goal Date to Comply with International Web Accessibility Guidelines

Web Content Accessibility Guidelines (WCAG 2.0) have been developed under the auspices of the World Wide Web Consortium by individuals and organizations around the world with the goal of providing a shared, technology-neutral standard to address web accessibility.

Although these guidelines have not been adopted in the U.S. as a general legal requirement, the DOJ is likely to incorporate the guidelines into the rules it proposes in 2015 to apply to places of public accommodation. The WCAG 2.0 are already referenced in the rules that will apply to U.S. and foreign airlines that market transportation to the public in the U.S. beginning in November 2015. Moreover, nearly all of the settlement agreements in recent cases incorporate compliance with WCAG 2.0 (Level AA) within a reasonable amount of time. Some foreign jurisdictions have already incorporated these guidelines into their own laws.

Include Accessibility Legal Review and Software Upgrades in Budget

Even if it takes the DOJ another year to adopt specific rules governing websites, the threat of potential class actions counsels in favor of advance planning. Modifying your website to meet accessibility guidelines will take time and money, but there are several advantages to starting the planning process now.

The foremost advantage is that if a plaintiff files a lawsuit, you will be in a much better position to negotiate a settlement knowing that you have a plan in place and a target date for your remediation efforts. Having a plan in place can also help diffuse potential impact litigation by advocacy groups. Speaking with legal experts and technology advisers now will ensure you do not have to rush through the procurement process with a lawsuit pending and that you can implement your plan on your own schedule, not an externally imposed one. Also, while technology firms can typically offer to provide additional resources to assist you in your website remediation efforts, the process can be much more costly if the deadline is tight.

Review All Potentially Relevant Sources of Insurance

ADA claims may trigger many different types of coverage and a retailer should review its entire insurance portfolio prior to becoming the target of an ADA claim. The policy review should include, but not be limited to, the following: commercial general liability policies, employment practice liability policies, errors and omissions policies and policies where your company is an additional insured.However, keep in mind while reviewing your policies that case law in this area is in its infancy. If you are unable to assess whether your company has adequate protection after a review of your policies, reach out to coverage counsel and your broker to ensure you are properly insured.

Implement Internal Procedures to Ensure Legal and Risk Management Know of All Potential ADA Claims

Retailers should ensure that internal procedures require all employees to immediately notify legal and risk management if a potential ADA claim is made. This is important regardless of how the claim is made. Under some policies, a phone call from a customer on the retailer’s hotline that alleges discrimination may be a “claim” and thus require notice to a carrier. Under claims-made policies, if a claim is not reported to an insurance carrier during the policy period (or, in some instances, in a short time after the policy expires), all coverage may be lost. Thus, for example, if an ADA claim is made by phone on Aug. 25, the relevant claims-made policy expires on Sept. 1, and legal and risk management are not notified until Sept. 5, there is a possibility under certain policies that all coverage will be lost.

As soon as an ADA claim is made, all potentially applicable insurers should be notified in accordance with the procedures and deadlines in the policies. While the consequences of late notice vary based on the jurisdiction and the policy language, this is a coverage dispute that, with foresight, policyholders can and should avoid on the front end by ensuring internal procedures exist to immediately notify legal and risk management of potential claims. Retailers should consider bringing experienced coverage counsel in at the beginning of a claim in order to protect and maximize insurance coverage. Communications with your broker are not privileged in many jurisdictions and how a retailer frames the initial notice letter may ultimately impact your coverage.

—By Selena J. Linde and Kimberly Reindl, Perkins Coie LLP