A new bill that could mean another record filing of California lawsuits on website accessibility is now under consideration by Sacramento lawmakers, following a “gut-and-amend” process that let it replace a different bill that had already been through required legislative channels.
Gut-and-amend, defined by the California Legislative glossary as replacing a bill’s entire contents with different provisions, tends to happen toward the end of the legislative session.
According to Krisina M. Launey, an attorney in the labor and employment practice at the Seyfarth Shaw law firm, the legislation, known as AB1757, would grant plaintiffs greater leeway to sue companies whose websites and mobile apps don't conform to new accessibility and page design standards, known as WCAG 2.1 Level AA.
According to website accessibility advocates, the WCAG standards were created as 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; to ensure all elements are readable by a screen reader; and to ensure elements are in logical order and navigation is consistent throughout the page.
AB 1757 is now before the Senate Appropriations Committee.
It would essentially adopt WCAG 2.1 Level AA as de facto standard for the accessibility of websites and mobile apps that are used to provide goods or services in California, Launey said, but would also open businesses to steep potential lawsuit risk under California's Unruh Civil Rights Act.
“So that any business that does not have a website that meets that standard would be subject to suit and statutory damages,” Launey said. “Proponents state that the bill would simply provide a presumption of accessibility if a website conforms to WCAG 2.1 Level AA – not impose a requirement that a website conform to WCAG 2.1 Level AA. But those of us who litigate lawsuits filed in this space find it very hard to believe that plaintiffs and perhaps even courts won’t read the language as imposing a requirement.”
Opponents estimate that in the 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.
Launey noted the legal landscape would change in a few ways 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 that is not based on an underlying violation of the ADA, show that the business engaged in ‘intentional discrimination’,” Launey said. “This is because the California Court of Appeals has held that having a website that is not accessible is not intentional discrimination and thus not a violation of the Unruh Act. This bill would make any business with a website that does not conform to the WCAG 2.1 AA liable under Unruh, regardless of intent.
“As another example, the bill would also authorize lawsuits against the developers of the websites in addition to the actual business establishments. Under existing law, only the business establishment that provides the good or service directly to the public is subject to suit.”
AB 1757 has been described as a gut-and-amend version of AB 950.
“Prior to June 12, AB 1757 contained amendments to laws that related entirely to the court system,” Launey said. “That language was deleted in its entirety (or ‘gutted’ from the bill) and the bulk of the language from AB 950 – a bill that did not make it out of the house of origin – was amended into AB 1757.”
Unlike AB 950, AB 1757 contains additional language that the “variety of conforming implementations that may be used to meet” WCAG 2.1 Level AA should be taken into account when considering whether a website provides equally effective communication in compliance with the Unruh Act, Launey said.
“But the bill provides no detail or context around what the ‘variety of conforming implementations’ may be,” Launey said. “Presently many plaintiffs filing website accessibility lawsuits claim that any item on a website that does not conform to the WCAG 2.0 or 2.1 Level A and AA criteria makes the website inaccessible and in violation of the law (even items that are turned up only by automated scans of the website – tools which are often turn up false negatives and positives).”
But that is often not the case.
“A website does not need to be 100% conforming to the WCAG criteria to be accessible and usable to individuals with disabilities – nor is it possible or practical for a website to ever by 100% conforming to every WCAG criteria, especially given the highly dynamic nature of websites,” Launey said. “The language of the bill does not account for this.”
Small business networks have worked to raise awareness in website forums.
“The bill also does not define what it means for a website or mobile app to conform WCAG 2.1 Level AA, so to defend against a lawsuit a small business would still need to hire an expert to make such a determination to be presented in litigation – costs that small businesses cannot bear,” Launey said. “The presumption this bill provides will be of little benefit to small business. What small businesses need is legislation that will help them understand what is required and what it means to effectively communicate with individuals with disabilities – through an accessible website or otherwise – and notice or other provisions to give them the opportunity to fix issues promptly before being subjected to lawsuits and statutory damages they cannot afford to defend or pay.”
Lawsuits will almost certainly increase, Launey said.
“And with that increasing costs and burden to state and federal courts,” Launey said. “The bill will likely make it even more difficult for small businesses to do business in California. They are already hit with web accessibility suits, and will undoubtedly be hit with increasing numbers if they don’t make their websites conform to WCAG 2.1 Level AA, which most small businesses do not have the financial resources to do. The bill contains no compliance timeline or grace period that could help provide small businesses with a cushion of time within which to comply with the new law.”
Launey noted the U.S. Department of Justice spent years in the regulatory process and sought well over a hundred different comments on the subject of website accessibility during its initial rulemaking effort – demonstrating what a complex topic this is.
“Among the items in the DOJ comments is a transition period to bring existing websites and mobile apps into conformance with WCAG 2.1 Level AA –absent from this bill. Also absent is any acknowledgement or provision for the fact that small businesses may need a different compliance timetable,” Launey said. “In 2022, the DOJ issued a Guidance on website accessibility stating that 'businesses … have flexibility in how they comply with the ADA’s general requirements of nondiscrimination and effective communication' and references WCAG as ‘helpful guidance.’ This bill would all but remove any such flexibility in compliance with the Unruh Act, and make WCAG mandatory rather than ‘helpful guidance.’"
In addition to the “flexibility” afforded businesses under the ADA when providing “effective communication,” a business under the ADA can claim that providing effective communication presents an “undue burden” or fundamentally alters the nature of the goods and services it provides, Launey said.
But AB 1757 contains no such defenses.
“The commentary on the bill really mischaracterizes, or vastly misunderstands, the practical effect of this bill if signed into law,” Launey said. “Lawsuits will almost certainly increase – not decrease.”