Legal Update: May 2023

Up here in Seattle, May is usually a cool, rainy month. Frequently, this extends into most of June, leading local denizens to refer to the month as "Juneuary." So far, this year has broken that pattern as we've had brilliant sunny summery days with low humidity and highs in the low- to mid-seventies. After a dreary winter, this break has been very nice and I've wanted to spend my days outside avoiding work. Lexis cooperated by offering few startling cases to analyze.

Two Takes on Website Accessibility

Early in the month, Lexis offered me two cases from opposite sides of the country: Harrison v. CME International LLC, 2023 U.S. Dist. LEXIS 82238 (C.D. Cal. 2023) and Chalas v. Pork King Good, 2023 U.S. Dist. LEXIS 79100 (S.D.N.Y. 2023). Both cases involve websites that were inaccessible to blind plaintiffs and both cases involved a defendant's motion to dismiss. Knowing that one case was brought in the Southern District of New York and the other one was brought in the Central District of California should already tell you how the courts were going to rule: the California case gets dismissed but the New York case doesn't. Both cases centered on the question of whether a website can be considered a place of public accommodation under the ADA. In the links above, I've provided copies of the courts' opinions and I think it's fun comparing how two courts come to well-supported but opposite conclusions. As readers of this blog know, I'm partial to the interpretation from the Southern District of New York. It's not that I love serial plaintiffs; I just believe that the nexus standard used in California is not workable and leads to unpredictable results.

Update on Colorado 21-1110

I usually focus on new cases in my monthly legal updates but it's been slow in the courts and so this would be a good opportunity to catch up on some developments in the state legislatures. First up is Colorado. Back in March, the state passed HB 21-1110, which made Colorado agencies liable in private lawsuits (with liquidated damages) if they used technology that was not accessible. Just the next month, Colorado passed SB 23-244. While the Colorado Office of Information Technology had created TS-OEA-002, which included technical guidance that borrowed heavily from WCAG 2.0 A/AA to help the agencies meet 21-1110, the new SB 23-244 requires that the Colorado CIO engage in a rulemaking to develop clear standards. While rulemaking usually takes time, SB 23-244 didn't extend the July 2024 deadline. So if I worked in the IT section of a Colorado agency, I would be focusing my efforts on the latest version of WCAG A/AA. SB 23-244 also made some other minor tweaks, such as dropping the requirement for agency plans and making it clearer that agencies can be sued for using inaccessible technology.

California AB 950

Over the last few months, the California legislature has been quite busy with web accessibility litigation as well. In February, Assembly Bill 950 was introduced to clarify the requirements for web accessibility lawsuits and it has been amended several times since being introduced. The latest version isn't radically different from the original bill and, while it's lengthy, it makes a pretty straightforward read.

So what does AB 950 do? Here's a quick summary of some of the salient points (I did say it was lengthy and straightforward, so hit the link if you want more details):

  • To recover damages, a plaintiff has to show that (1) they encountered a barrier on a website that prevented them from accessing goods and services in a manner comparable to someone without a disability and (2) they were deterred from accessing content on the site because of its failure to provide effective communication.
  • If a website conforms to WCAG 2.1 A/AA, it creates a rebuttable presumption that it provided effective communication (using a presumption of compliance makes sense as full WCAG 2.1 A/AA compliance is often difficult or impossible to achieve.

Okay, none of that is earth-shattering at all. I think it is much more interesting at some of the items that aren't definitively addressed or that are merely suggested. Here's my "top two" list of really important concepts to think about with AB 950:

  • Are online-only businesses now open to lawsuits? I previously blogged that purely online companies cannot be sued for inaccessibility under Unruh unless a plaintiff could show intentional discrimination. The California Supreme Court spelled out in Koebke v. Bernardo Heights Country Club, 36 Cal. 4th 824 (Cal. 2005) that, unless the legislature clearly articulated what constitutes an Unruh violation, discriminatory treatment would have to be intentional conduct on the part of the defendant. Even though AB 950 states that it is not intended to "resolve, or otherwise address, whether an internet website that is a standalone website-only business and not associated with a business that has a physical location in California is subject to liability," it pretty clearly lays out what constitutes a violation and I think a plaintiff wouldn't have much difficulty arguing that AB 950 removes the "intent" requirement and opens online-only businesses up to litigation.
  • Encourages imposing liability on website developers. While AB 950 doesn't make website developers liable for creating inaccessible websites, it does encourage it. How? AB 950 would require advisory statements encouraging business owners to include warranty and indemnification clauses in contracts with web consultants that all work must comply with WCAG and to indemnify businesses who are sued for website accessibility. It would also encourage businesses to refuse working with any web developer who was unwilling to accept such clauses in their contracts for work.

It will be interesting to see where AB 950 goes in the coming months and whether it gets passed into law. And remember, even if you don't live in California, you can still be sued under Unruh, so the progress of AB 950 really does affect all of us.


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.

Want to See More Content Like This?

Want the latest blog posts, videos, white papers, and announcements? Sign up for our mailing list and stay in the loop!

We're Here to Help When You're Ready

Take a deep breath. Then feel free to reach out to our team when you're ready to discuss your accessibility needs.

0 comments on “Legal Update: May 2023

Leave a Reply

Your email address will not be published. Required fields are marked *

Click to access the login or register cheese