Legal Update: May 2023

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.