A new California legislation, AB 1757, that threatens businesses with website and app accessibility lawsuits is on the horizon. The legislation that could mean another record filing of California lawsuits on website accessibility is under consideration by Sacramento lawmakers. This follows a “gut-and-amend” process that replaces a different bill that has passed through the legislative chambers.
“Gut-and-amend” process replaces the entire content of a bill with different provisions. This usually happens towards the end of the legislative session.
Assembly Bill 1757 (AB 1757)
The Bill allows plaintiffs to sue companies whose websites and mobile apps do not conform to WCAG 2.1 Level AA standards. WCAG standards are guidelines to ensure websites and app screens are accessible and understandable by all users. The standards include rules to heighten color contrast among page elements. And also to ensure all elements are readable by a screen reader. They are meant to ensure elements are in logical order and navigation is consistent throughout the page.
AB 1757 is now before the Senate Appropriations Committee. The bill adopts WCAG 2.1 Level AA as the standard for accessibility of websites and mobile apps offering goods or services. But this also puts businesses at risk of lawsuits under California’s Unruh Civil Rights Act.
Any business that does not have a website that meets that standard would be subject to suit and statutory damages. Proponents argue that the bill would provide a presumption of accessibility if a website conforms to WCAG 2.1 Level AA. It will not impose a requirement that a website conform to WCAG 2.1 Level AA. It is quite hard to believe that plaintiffs and even courts won’t read the language as imposing a requirement.
Last year more than 4,000 businesses, especially those owned by first-generation families and people of color, have faced lawsuits. And thousands more have received pre-litigation demand letters about alleged website inaccessibility.
Legal landscape faces uncertainty due to AB 1757
The legal landscape could drastically change if AB 1757 becomes law. For one, under existing law, a plaintiff must show that the business has violated the Americans with Disabilities Act (ADA). Or for an Unruh Act claim, he must demonstrate that the business engaged in ‘intentional discrimination.
This is because the California Court of Appeals holds that having an inaccessible website is not intentional discrimination. And thus does not constitute a violation of the Unruh Act. The bill, if passed, holds businesses with inaccessible websites liable under the Unruh Act, regardless of intent. It also allows lawsuits against website developers, in addition to business establishments.
AB 1757 is a gut-and-amend version of AB 950, a bill that did not make it out of the house. Previously, AB 1757 contained amendments to laws that related entirely to the court system. But now that language has been gutted entirely and replaced with language from AB 950 permanently.
What is in Assembly Bill 1757?
AB 1757 contains additional language that states the importance of taking into account the “variety of conforming implementations.” However, the bill lacks details regarding the interpretation of conforming implementations. At present, plaintiffs argue that any non-conforming item renders the website inaccessible and in violation of the law.
It’s crucial to understand that a website doesn’t have to achieve 100% conformity to WCAG criteria to be accessible and usable by individuals with disabilities. Achieving complete conformity to every WCAG criteria is neither practical nor feasible, especially considering the highly dynamic nature of websites. Unfortunately, the language in AB 1757 does not address this issue.
What does AB 1757 mean for small businesses?
Many small business networks are working to raise awareness about the bill in website forums. The bill does not define the criteria for a website or mobile app to conform to WCAG 2.1 Level AA. Therefore, in their defense, a small business must still hire an expert to determine compliance in front of a court. The cost of such litigation is simply too high for small businesses to bear.
The presumption this bill provides is of little benefit to small businesses. What small businesses need is legislation that helps them understand the requirements for effective communication with individuals with disabilities. They need a legal notice to address issues promptly, to avoid costly lawsuits and statutory damages they cannot afford.
In this scenario, lawsuits are surging, leading to increasing costs and burden on state and federal courts. The bill will likely make it even more difficult for small businesses to operate in California. They will face more legal action if their websites don’t conform to WCAG 2.1 Level AA. Most small businesses lack the financial resources to achieve full compliance. The bill lacks a compliance timeline that could offer small businesses some time to adapt to the new law.
U.S. Department of Justice and website accessibility
The U.S. Department of Justice spends years in the regulatory process, seeking numerous comments on website accessibility, indicating its complexity. The DOJ proposes a transition period to allow businesses to align with WCAG 2.1 Level AA. That provision is missing in this bill, which also overlooks different compliance timetables for small businesses.
In 2022, the DOJ issues a Guidance allowing flexibility for ADA compliance and referencing WCAG as helpful guidance. However, if this bill passes, WCAG would become mandatory, removing such flexibility.
Furthermore, current ADA defenses for “undue burden” or altering services are absent in AB 1757. The bill’s practical effect, if enacted, would likely increase lawsuits, contrary to the commentary’s claims.
In conclusion, AB 1757 regarding web accessibility poses a significant threat to businesses, introducing new risks from potential lawsuits. While the intent may be to enhance accessibility for individuals with disabilities, the lack of details raises concerns for small businesses.
The absence of a defined compliance timeline, provisions for transition periods, and acknowledgment of potential financial constraints could burden companies and hinder their ability to adapt swiftly. As a result, the legislation may lead to an increase in lawsuits rather than fostering a more inclusive digital landscape. For businesses operating in California, it is crucial to closely monitor the evolving legal landscape. And also proactively address web accessibility to mitigate potential risks and ensure a more accessible future for all users.