I spent almost all of my time this week helping potential clients in Colorado address web accessibility. Why is that? While most of us tend to think of New York, California, and Florida as the hotbeds of web accessibility litigation, I think there's reason to be concerned that Colorado may also become a favorite venue in the near future. I'm going to spend some time examining why this may happen and predict some of its consequences. Before I dive in, just remember: I am not a Colorado attorney and I'm not authorized to practice there. And, even if I was, nothing in this post constitutes legal advice.
Colorado HB 21-1110
On June 30, 2021, Governor Jared Polis signed into law Colorado HB 21-1110. This law is relevant for three reasons.
Colorado Public Entities Have Accessibility Obligations
First, HB 21-1110 requires state and local government entities in Colorado to focus on accessible technology. HB 21-1110 makes clear that discrimination against people with disabilities includes the failure by a state agency or local entity to:
- develop a plan for making its websites and digital assets accessible (each state agency was specifically required to submit this plan by July 1, 2022) or
- using websites or digital assets that fully meet the state's accessibility requirements by July 1, 2024.
Public and Private Entities in Colorado Can be Sued for Damages
Second, HB 21-1110 significantly expands private enforcement for people with disabilities by allowing people with disabilities to obtain statutory damages of $3,500 per violation per plaintiff. This is in addition to injunctive relief and actual monetary damages previously authorized by Colo. Rev Stat § 24-34-802 (2021). Where people with disabilities can claim these forms of relief is a bit confusing but appears to include:
- retaliation for seeking rights guaranteed to people with disabilities (Id at § 24-34-802(1)(a))
- denial of benefits of programs, services, or activities of a state or local government (Id at § 24-34-802(1)(b))
- failure by the state or local government to either create a digital accessibility plan or make their digital assets accessible by July 1, 2024 (Id at § 24-34-802(1)(c))
- unfair housing practices against people with disabilities (Id at §§ 24-34-502, -502.2)
- discrimination by places of public accommodation (Id at § 24-34-601)
- violating the rights of people with disabilities accompanied by service animals (Id at § 24-34-803)
The confusing part in tracking this down is that the latest codification that I could find is the 2021 version-- and this doesn't include the new provisions for §§ 24-34-802(1)(b), (c). You can find the up-to-date version at the website for the Colorado General Assembly.
Look to Colorado's CIO for Accessibility Standards
Lastly, HB 21-1110 requires Colorado's Chief Information Officer (part of the Office of Information Technology) to develop and maintain accessibility standards. These standards are to be consistent with the latest version of WCAG. The CIO is also required to develop procurement standards to ensure future technologies meet these requirements. Id at § 24-34-103.
What is the Latest Version of Standards?
It would be too simple to just say "comply with WCAG 2.1 A/AA." Instead, there are two sets of standards that Colorado's Office of Information Technology has created.
- TS-OEA-001 (Technology Accessibility for Persons with Disabilities). This set of standards mimics the 2000 version of the Federal government's Section 508 standards. This includes standards that cover all manner of technology including websites and web-based applications.
- TS-OEA-002 (Technology Accessibility for Web Content and Applications). This set of standards applies specifically to web content and web-based applications. It isn't a brilliant work of clarity as it requires that all web content must conform to WCAG 2.1 but, at the end of the same sentence, requires that web pages be developed to meet 37 specific requirements that comprise a subset of WCAG 2.0 A/AA (specifically, it drops Principle 4's requirement of parsing and name, role, and value).
Great, huh? All I can say is "strive for WCAG 2.1 A/AA" because anything less is a gray area.
Impact on Web Accessibility Litigation-- Broader than Unruh?
HB 21-1110 opens up a lot of entities to lawsuits and potential damages. In fact, probably the only California's Unruh Law is a fair comparison. But as far as web accessibility, HB 21-1110 may be even broader.
First, Colorado's FAQ website for HB-21-1110 makes clear that they envision potential lawsuits against state and local government entities that fail to make their websites accessible. By contrast, Unruh cannot be used against state or local government entities (also, the ADA only authorizes compensatory damages if the plaintiff can show intentional discrimination, which will likely be really hard in web accessibility cases).
Second, it's possible that HB 21-1110 could be used differently than Unruh when it comes to private websites. I'm not aware of any cases in the Tenth Circuit (which includes Colorado) that have addressed whether a nexus is required between a website and a physical place of public accommodation. But that's the likely test under the ADA. Colorado's version is written quite a bit differently than the ADA and "covers any written, electronic, or printed communication, notice, or advertisement" Id, § 24-34-601. I've always maintained that websites really are just a form of communication of a place of business-- and Colorado's law makes it easy for a plaintiff to rely on this argument and sidestep the nexus requirement. By contrast, an Unruh claim for a website that has no nexus to a physical place of public accommodation requires a plaintiff to show intentional discrimination-- a standard that is almost impossible to meet.
Other Legal Issues
I have no idea whether HB 21-1110 will open its state courts to an avalanche of disability-related cases. The obvious focus of HB 21-1110 is public entity websites but plaintiffs may seize on the law's broad expansion of enforcement powers to target private businesses and housing providers in the state. But there is a whole Pandora's box of other potential issues.
Possible False Claims Act Cases?
Focusing for a moment just on claims against state and local governments, I wonder if we may also see a few False Claims Act cases brought by state and local governments that were found liable under HB 21-1110? After all, state or local governments typically don't create their own technologies-- they rely instead on the expertise of their vendors. And if their vendors knowingly misrepresent that their products fully comply with WCAG (or, in the case of some overlay vendors, that they magically make web content fully comply with WCAG), then they may be facing lawsuits from angry public sector customers in Colorado. If so, they'll be facing a lot more than $3,500 in damages as Colorado apparently authorizes liability to the state for "a civil penalty of $11,800 to $23,600 per violation, plus 3 times the amount of the damages sustained by the state."
Standing in Web Accessibility Cases?
Like the Federal courts, the Colorado Supreme Court has stated that plaintiffs must demonstrate an "injury in fact" to a "legally protected interest." Wimberly v. Ettenberg, 570 P.2d 535 (Colo. 1977). While there is some controversy about exactly what this means, it's probably fair to say that a person with a disability who is complaining about an inaccessible government website would need to show more than the fact that the site doesn't comply with WCAG. Instead, they will likely have to show that they were personally affected by the inaccessibility of the site. And, while we don't know where the courts will take this, I suspect that plaintiffs may also have to demonstrate that the programs, services, or activities that they were seeking are not available through a convenient alternative (e.g. by calling the agency or visiting its offices).
Joining with ADA Claims and Removal to Federal Court?
Just as Unruh cases were being joined to ADA claims for the same violation, I could see HB 21-1110 claims being connected with ADA claims and brought in Federal court. Why would someone want to do that? Perhaps, they feel that Federal judges are more liberal than state judges? Or they could go to Federal court to avoid procedural hurdles in state court.
Summary
It's hard to say where HB 21-1110 will go. It likely won't be, "the death of the internet" (a description one of my friends made about ADA Title III when web accessibility litigation was starting to explode).
One thing is clear, however: state and local governments are (justifiably) concerned about their websites and digital technologies because that IS a clear target of HB 21-1110. If you work with a state or local government entity in Colorado (or work with such entities) and are concerned about the accessibility of your websites and digital technology, feel free to schedule a call today to discuss how we can help!
Disclaimer
Nothing in this post should be interpreted as legal advice or as forming an attorney-client relationship. It is offered for educational purposes only. You should always contact a qualified attorney in your area to discuss your legal rights and responsibilities.
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