SETTLEMENT AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND PROGRESSIVE CASUALTY INSURANCE COMPANY
DJ # 202-14-221

Background

1. This Settlement Agreement (the “Agreement”) is made by and entered into between the United States of America and Progressive Casualty Insurance Company (“Progressive”).  The Agreement resolves an investigation of Progressive conducted by the United States Attorney’s Office for the District of Connecticut (“United States” or “USAO”) under title III of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12181-12189, and its implementing regulation, 28 C.F.R. pt. 36.
2. The United States initiated its investigation of Progressive after receiving a complaint, which was assigned Department of Justice complaint # 202-14-221 (the “Complaint”), made by an individual who is blind or has low vision (“Complainant”).  Complainant alleged that Progressive is in violation of Title III of the ADA because it failed to provide account information to Complainant in an accessible format.  Complainant alleges that Progressive’s failure to provide him account information in accessible formats caused his insurance with Progressive to be cancelled.
3. The United States investigated the complaint under the authority granted by the ADA, 42 U.S.C. § 12188(b)(1)(A)(i), and 28 C.F.R. § 36.502.4. 
4. During the investigation, Progressive did not dispute that it did not provide account information to the Complainant in the format that the Complainant requested.  Instead, Progressive provided Complainant with a letter, which Complainant represented would enable him to obtain a reader service without cost. Complainant denies he made this request.
5. Notwithstanding the foregoing Paragraph 4, the United States has concluded that Progressive violated Title III of the ADA, because it failed to provide Complainant account information, in an accessible format.  Progressive disputes this conclusion, but has agreed to resolve this matter with the United States and with Complainant.
6. The Attorney General of the United States is authorized to investigate alleged violations of the ADA, to use alternative means of dispute resolution, where appropriate, including settlement negotiations to resolve disputes, and to bring a civil action in federal court in any case where the Attorney General has reasonable cause to believe that a person or group of persons is engaged in a pattern or practice of discrimination or any person or group of persons has been discriminated against in violation of the ADA and such discrimination raises an issue of general public importance.  42 U.S.C. §§ 12188(b), 12212; 28 C.F.R. §§ 36.502, 503, 506.
7. Progressive owns and operates multiple locations in Connecticut.  Progressive does not dispute that its locations in Connecticut are places of public accommodation under Title III of the ADA and that it is a public accommodation under Title III of the ADA with respect to those locations, as defined in section 301(7)(F) of the ADA, 42 U.S.C. § 12181(7)(F), and its implementing regulation, 28 C.F.R. § 36.104.
8. Title III of the ADA and the Title III implementing regulation prohibit discrimination on the basis of disability by public accommodations.  42 U.S.C. § 12182; 28 C.F.R. § 36.201.  Specifically, Title III requires public accommodations to take those steps necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids or services, unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of its goods, services, facilities, privileges, advantages or accommodations or would result in an undue burden with individuals with disabilities.  42 U.S.C. § 12182(b)(2)(A)(iii); 28 C.F.R. § 36.303.
9. In consideration of the terms of this Agreement, the United States agrees to refrain from undertaking further investigation or filing a civil lawsuit in this matter regarding the allegations of the Complaint, except as provided in the Enforcement section of this Agreement.
10. Progressive agrees that it will provide appropriate auxiliary aids and services, consistent with the definitions provided in the Title III regulation at 28 C. F. R. § 36.303(b).

REMEDIAL ACTIONS

11. To the extent required by Title III of the ADA, Progressive shall not discriminate against any individual on the basis of disability in the full and equal enjoyment of any of its goods, services, facilities, privileges, advantages, or accommodations or otherwise violate any provision of Title III of the ADA, 42 U.S.C. §§ 12181-12189, 12203, or the Title III implementing regulation, 28 C.F.R. pt. 36, including but not limited to the following:
1. Progressive shall not refuse to make reasonable modifications in policies, practices, and procedures, when such modifications are required to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations, 42 U.S.C. § 12182(b)(2)(A)(ii) and 28 C.F.R. § 36.302;
2. Progressive will take those steps required to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids or services, unless taking those steps would fundamentally alter the nature of Progressive’s goods, services, facilities, privileges, advantages or accommodations or would result in an undue burden, 42 U.S.C. § 12182(b)(2)(A)(iii);
3. Progressive shall furnish appropriate auxiliary aids and services, free of surcharge, when required to ensure effective communication with individuals with disabilities and shall take any and all steps that may be required to ensure that no individual with a disability is excluded, denied services, segregated, or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden, i.e., significant difficulty or expense, 28 C.F.R. §§ 36.301(c), 36.303; and
4. Progressive shall not engage in retaliation, coercion, interference, intimidation, or any other action prohibited by the ADA, 42 U.S.C. § 12203 and 28 C.F.R. § 36.206.

DOCUMENTS AND INFORMATION IN ACCESSIBLE FORMATS

12. Within sixty (60) days of the Effective Date (defined below) of this Agreement, and pursuant to its Auxiliary Aids and Services Policy, as outlined below in Exhibit A, Progressive shall provide members of the public who are blind or have low vision with appropriate auxiliary aids and services, including documents in alternate formats, to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids or services.
13. In exchange for a release and waiver agreement executed by the Complainant, Progressive agrees to pay compensatory damages in the amount of one thousand dollars ($1,000.00) to the Complainant to fully reimburse him for the costs he incurred because Progressive did not provide account information in accessible formats.

ADOPTION AND IMPLEMENTATION OF AUXILIARY AIDS AND SERVICE POLICY

14. Within sixty (60) days of the Effective Date of this Agreement, to ensure equal access for persons with disabilities, Progressive shall adopt, implement, and thereafter maintain for the term of this Agreement a policy titled: “Providing Individuals with Disabilities with Auxiliary Aids and Services to Ensure Effective Communication” (“Auxiliary Aids and Services Policy”), attached to this Agreement as Exhibit A and incorporated herein by reference.
15. Within sixty (60) days of the Effective Date of this Agreement, Progressive shall distribute the Effective Communication Policy to all employees and Insurance Agencies (defined below) who have duties  involving communicating with the public either in person, through the telephone, via the computer, or by any other distribution channel.  Within ninety (90) days of the Effective Date of this Agreement, Progressive shall furnish to the United States documentation confirming the implementation and distribution of the Auxiliary Aids and Services Policy to Progressive’s employees and Insurance Agencies.
16. Progressive shall distribute the Auxiliary Aids and Services Policy to all newly hired employees and new contracted-with Insurance Agencies who have duties involving communicating with the public either in person, through the telephone, via the computer, or by any other distribution channel within twenty-one (21) days of the date on which each such employee commences employment or Insurance Agency enters into a contractual relationship with Progressive to sell Progressive products and services.
17. For the purposes of this Agreement, “Insurance Agency” shall mean an individual or entity who or that is not an employee of Progressive and who or that contracts with Progressive for the purpose of selling Progressive’s products and services.
18. Within sixty (60) days of the Effective Date of this Agreement, Progressive shall post a sign, in each of its Claim Service Centers, in a bold font no smaller than 20 points, notifying customers that auxiliary aids and services are available free of charge as reasonably needed.
19. Progressive shall post and maintain a copy of the Auxiliary Aids and Services Policy on its website www.progressive.com (the “Website”) in a location that is easy for the public to find (i.e., directly linked to the primary web portals used by the public with an appropriate description of the Auxiliary Aids and Services Policy at the link located on those portals (e.g., ADA Policy/Effective Communication)), and in a format accessible to persons with disabilities (e.g., HTML).  Within ninety (90) days of the Effective Date of this Agreement, Progressive shall provide the United States with proof of posting the Auxiliary Aids and Services Policy on its Website.
20. Within one hundred twenty (120) days of the Effective Date of this Agreement and thereafter at least once per year for the term of this Agreement, Progressive shall provide an educational training program regarding its obligations under Title III of the ADA, and the Auxiliary Aids and Services Policy, to all Progressive employees who are actively employed and  have duties involving communicating with the public either in person, through the telephone, via the computer, or by any other distribution channel, as well as those who make decisions affecting policies and procedures related to how Progressive communicates with the public.  Within one hundred fifty (150) days of the Effective Date of this Agreement, Progressive shall provide the United States with proof that such training has occurred and that all employees who must be trained have received it.

MAINTAINING RECORDS

21. For the term of this Agreement, Progressive shall preserve all records required by this Agreement, including but not limited to those required by the Auxiliary Aids and Services Policy.  Upon reasonable notice to Progressive, representatives of the United States shall be permitted to inspect and copy any of Progressive’s non-privileged records or inspect any of Progressive’s locations bearing on compliance with this Agreement at any and all reasonable times, provided, however, that the United States shall endeavor to minimize any inconvenience to Progressive from such inspections.
22. Within thirty (30) days of receipt of a written request by the United States, Progressive shall provide documents and other information sought by the United States to determine compliance with this Agreement.
23. Within ninety (90) days of the Effective Date of this Agreement and annually thereafter for the term of this Agreement, Progressive will submit a written report to the United States describing all actions relating to compliance and noncompliance with this Agreement, including, inter alia, providing copies of policies and training programs, photographs of notices posted, any requests by customers for alternative formats, auxiliary aids or services and how those requests were addressed, and any other documents to support compliance with this Agreement.

ENFORCEMENT

24. The United States may review compliance with this Agreement at any time during the term of this Agreement, including, but not limited to, testing of any Progressive services, locations, or facilities.  If the United States believes that Progressive has failed to comply in a timely manner with any requirement of this Agreement without obtaining sufficient advance written agreement with the United States for a modification of the relevant terms, the United States will so notify Progressive in writing, and it will attempt to resolve the issue or issues in good faith.  If the United States is unable to reach a satisfactory resolution of the issue or issues raised within thirty (30) days of the date it provides notice to Progressive, it may institute a civil action in federal court to enforce the terms of this Agreement or Title III and may, in such action, seek any relief available under law.
25. Failure by the United States to enforce this Agreement with regard to any deadline or any other provision will not be construed as a waiver of the United States’ right to enforce other deadlines and provisions of this Agreement.
26. This Agreement is a public document, and copy of this Agreement, including Exhibit A, will be made available to any person by the United States on request.
27. This Agreement, including Exhibit A, shall be binding on Progressive and its employees, in their capacity as such.  In the event Progressive seeks to transfer or assign all or part of its interest in any Progressive service covered by this Agreement, and the successor or assignee intends on carrying on the same or similar service, as a condition of sale, Progressive shall obtain the written accession of the successor or assignee to any obligation remaining under this Agreement for the remaining term of this Agreement.
28. This Agreement, including Exhibit A, constitutes the entire agreement between the United States and Progressive on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by either party or their respective agents, that is not contained in this written Agreement, will be enforceable.  This Agreement does not affect Progressive’s continuing responsibility to comply with all aspects of the ADA and other federal laws.
29. This Agreement will remain in effect for three (3) years after the Effective Date.
30. The person signing this Agreement for Progressive represents that he or she is authorized to bind Progressive to this Agreement.
31. The “Effective Date” of this Agreement is the date of the last signature below.

Exhibit A: Progressive Casualty Insurance Company’s Policy for Providing Individuals with Disabilities with Auxiliary Aids and Services to Ensure Effective Communication (“Auxiliary Aids and Services Policy”)

It is the policy of Progressive Casualty Insurance Company (Progressive) to take those steps required by law to ensure effective communication with individuals with disabilities by furnishing appropriate auxiliary aids and services.  Progressive further shall take those steps required by law to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids or services, unless taking those steps would fundamentally alter the nature of Progressive’s goods, services, facilities, privileges, advantages or accommodations, or would result in an undue burden, consistent with the requirements of Title III of the Americans with Disabilities Act (ADA), and its implementing regulations.

To meet this obligation, Progressive will provide, free of charge, appropriate auxiliary aids and services, whenever required, to ensure that individuals with disabilities have an equal opportunity to participate in, and benefit from Progressive’s goods, services, facilities, privileges, advantages, or accommodations.  This policy applies to all members of the public with disabilities contacting or attempting to contact Progressive’s services, locations, and facilities.

1. What Are Appropriate Auxiliary Aids and Services? Appropriate auxiliary aids and services include a wide variety of equipment, materials, and services that may be required to ensure effective communication for people with disabilities and that do not fundamentally alter the nature of Progressive’s goods, services, facilities, privileges, advantages or accommodations or result in an undue burden, consistent with the requirements of Title III of the Americans with Disabilities Act (ADA), and its implementing regulations. 

   For example, for people who are blind or have low vision, depending upon the circumstances, appropriate auxiliary aids and services may include qualified readers; printed information provided in Braille, in large print, in electronic format, or through audio recordings; oral descriptions of action and visual information to ensure the accessibility of proceedings and presentations; note takers; assistance in filling out forms or accessing materials in a computer database; providing digital content in a form that will properly interact with common accessibility software; or assistance to guide a person to find his or her way to an unfamiliar location or along an unfamiliar route; and other effective methods of making information or materials delivered using written word available to individuals who are blind or visually impaired.

   For people who are deaf, are hard of hearing, or have speech impairments, appropriate auxiliary aids and services may include qualified oral/sign language interpreters (including on-site and video remote interpreting (VRI) services), written notes, video text displays, amplified and hearing aid compatible telephones, assistive listening systems, open or closed captioning and caption decoders, teletypewriters (TTYs), and other effective methods of making information or materials delivered using sound available to individuals who are deaf or hard of hearing.

2. What does the term “qualified interpreter” mean? The term “qualified interpreter” includes “sign language interpreters,” “oral interpreters,” or other “interpreters” who, via video remote interpreting (VRI) service or an on-site appearance, are able to interpret competently, accurately, and impartially, both receptively and expressively, using any specialized terminology necessary for effective communication with an individual who is deaf or hard of hearing or who has a speech impairment, given that individual’s language skills and education.  Not all interpreters are qualified to interpret in all situations.  For example, an interpreter who is qualified to interpret using American Sign Language (ASL) is not necessarily qualified to interpret orally.  Also, someone who has only a rudimentary familiarity with sign language or finger spelling is not a “qualified sign language interpreter.”  Likewise, someone who is fluent in sign language but who does not possess the ability to interpret medical or legal terminology; process spoken communication into the proper signs; or observe someone signing and translate their signed or finger-spelled communication into spoken words is not a qualified sign language interpreter.  An interpreter who knows tactile interpreting may be the only interpreter who is qualified to interpret for someone who is both deaf and blind.  Although an interpreter may be certified, a certified interpreter is not necessarily “qualified.” Similarly, certification is not required in order for an interpreter to be “qualified.”
3. What is a “qualified reader” and when might a qualified reader be required?
   A “qualified reader” is a person who is able to read effectively, accurately, and impartially using any necessary specialized vocabulary.  For example, a qualified reader may assist a person who is blind or has low vision in reading and filling out forms.  When assisting a person in reading documents or completing forms that involve confidential personal, medical, or financial information, the assistance must be provided in a private area in order to preserve the privacy of the individual who is being assisted.
4. What does the term “video remote interpreting service” mean?
   “Video remote interpreting service (VRI)” means an interpreting service that uses video conference technology over dedicated lines or wireless technology offering high-speed, wide-bandwidth video connection that delivers high-quality video images meeting the following requirements:

   (a) Real-time, full-motion video and audio over a dedicated high-speed, wide-bandwidth video connection or wireless connection that delivers high-quality video images that do not produce lags, choppy, blurry or grainy images, or irregular pauses in communication;

   (b) A sharply delineated image that is large enough to display the interpreter’s face, arms, hands, and fingers, and the participating individual’s face, arms, hands and fingers, regardless of his or her body position;

   (c) A clear, audible transmission of voices; and

   (d) Adequate training to users of the technology and other involved individuals so that they may quickly and efficiently set up and operate the VRI.

5. Can Progressive employees or contractors ask or require family members or friends of individuals who are blind or have low vision to read for them?
   No.  Progressive may not ask or require friends or family members to interpret, read, fill out forms, or provide other auxiliary aids or services for individuals with disabilities.  A family member or friend may not be qualified to render the necessary services due to factors such as professional or personal involvement or invasion of an individual’s right to keep personal, medical, or financial information confidential from friends and family members.
6. Can Progressive charge an individual with a disability for the cost of providing an auxiliary aid or service needed for effective communication?
   No.  People with disabilities must not be asked to pay or be charged for the cost of an auxiliary aid or service needed for effective communication.
7. Are there specific procedures for requesting auxiliary aids and services?
   Whenever possible, requests for auxiliary aids and services should be directed to _____________.  Requests can be made by an individual with a disability who needs the auxiliary aids or services or by someone acting on that individual’s behalf.  When _____________ an is not available to receive a request, the request may be directed to_____________.

   Requests can be made either in writing or orally.  Requests should be made in advance, whenever possible, in order to better enable Progressive to address the communication needs of the individual.  However, Progressive will address all requests for auxiliary aids and services promptly and in accordance with ADA requirements.

8. How will Progressive determine which auxiliary aids and services to provide?
   The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place.  Progressive will consult with individuals with disabilities whenever possible to determine what type of auxiliary aid is needed to ensure effective communication, but the ultimate decision as to what measures to take rests with Progressive, provided that the method chosen results in effective communication.  In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.
9. How will Progressive handle requests for auxiliary aids and services?  
   Upon receipt of notification that any auxiliary aids and services will be necessary, Progressive’s personnel will confer with the individual with the disability to ascertain the individual’s needs.  Progressive will respond promptly to all requests for auxiliary aids and services to ensure that individuals with disabilities have a full and equal opportunity to participate in and benefit from the goods, services, facilities, privileges, advantages, or accommodations offered by Progressive.  Progressive will neither request nor require documentation of disability.
   Progressive will not disclose information about an individual’s disability or requests for auxiliary aids and services except to Progressive personnel who have a need to know this information (e.g., to make a decision on a request and/or to provide the auxiliary aids and services).
10. What should Progressive personnel do if they believe that provision of requested auxiliary aids and services will result in a fundamental alteration or impose undue financial and administrative burdens on Progressive?
    If provision of a particular auxiliary aid or service by Progressive would result in a fundamental alteration in the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or in an undue burden, i.e., significant difficulty or expense, Progressive shall provide an alternative auxiliary aid or service, if one exists, that would not result in an alteration or such burden but would nevertheless ensure that, to the maximum extent possible, individuals with disabilities receive the goods, services, facilities, privileges, advantages, or accommodations offered by Progressive. All decisions denying a requested auxiliary aid or service on the grounds that doing so would result in a fundamental alteration or impose undue burdens must be made by _____________, after considering all resources available to Progressive, and must be accompanied by a written statement of the reasons for reaching that conclusion.
    Any questions about this policy should be directed to _____________.