Last week, two blind customers sued Sweetgreen, a D.C.-based salad chain, alleging violations of Title III of the Americans with Disabilities Act of 1990 (ADA) and sections of New York’s Human Rights statute. In the Complaint, the customers claim that Sweetgreen’s online ordering system “prevents blind customers from customizing and placing their orders in the same way as sighted customers can.” Title III prohibits discrimination on the basis of disability at “places of public accommodations,” like restaurants, movie theaters, schools, and recreation facilities. Courts are split about whether “places of public accommodation” are limited to actual physical structures or include websites that are part of an integrated merchandising effort. The tide is pressing toward the broader reading of the statute, emboldened in part by the Department of Justice’s long-awaited website accessibility regulations (now set to be published in fiscal year 2018).
Title III claims are likely to be covered under commercial general liability policies, errors & omissions policies, policies where the business is an additional insured, and more. Public businesses should review their insurance policies to ensure coverage and should strive to obtain policies that address the broad range of remedies that may be awarded against them in Title III litigation, including attorney’s fees, fines and more.
Also, public businesses should not avoid insurance in favor of indemnification clauses in their web development contracts. In 2010, the Fourth Circuit Court of Appeals held that compliance with the ADA was non-delegable. Subsequent federal court decisions have extended this rationale to claims for contribution. Accordingly, public business should plan to manage Title III risk with appropriate liability insurance, even if they have outsourced their web development.