Do you need to be indemnified?

Written on July 19, 2018

The heavy amount of litigation around accessibility in the United States has claimed another victim: reality.

Recently, we had a potential customer ask us “Will you indemnify us if we get sued?“. It was a shocking question, but not the first time we’ve been asked this. Over the years I’ve been asked this many times. My answer has always been the same: “No”.

The reason should be obvious. As consultants, our job is to give our customers the best advice and guidance that we can. Unfortunately, we have no control over whether our customers will listen to our advice. If a customer ignores our advice and gets sued, then we’re asking for trouble if we indemnify them.

Imagine our surprise when we heard that competitors are, in fact, indemnifying their customers. When we first heard of this, we thought “What a foolish thing to do!“. But then we did a little more research. It turns out, it isn’t so foolish after all. In fact, it is pure genius – but not for the customer.

You see, there’s a catch – and it isn’t an insignificant one.

So, to go back two paragraphs, the reason why I thought the entire indemnification idea was foolish was because the consultant has no guarantee their customer will follow your advice. So how does the consultant mitigate that risk? By mandating that in order to receive the indemnification, the customer follows the consultant’s advice.

In other words: In order for one of these companies to indemnify you against a lawsuit you have to do all-the-things they say you should do. You’ll have to improve your policies and procedures. You’ll have to train your designers, developers, PMs, and everyone-else-who-impacts-the-sites. You’ll have to audit your sites and fix all the issues. You’ll have to periodically monitor your sites.

Well, duh! In other words, you’ll have to make significant fundamental changes to how your company handles accessibility and put together an effective accessibility program.

This isn’t bad, it is just kinda shifty. In order to be indemnified you need to do all of the things that you should already be doing in order to mitigate your legal risk.

These steps toward mitigating risk are the things I’ve been writing about in this blog and delivering presentations on since 2011.

The shifty part of this indemnification business is that it forces you to commit yourself to a single vendor. Again: genius move for the consulting firms. I have a different idea: Understand up front that if you’re in a high risk segment, you will need to do all-the-things I’ve listed above. Establish a vendor relationship with a consultant that you think is most capable of addressing your needs, and work with them toward your mutual goal without falling for shady tricks like indemnification promises.