When they are hit with a web accessibility complaint, most businesses say that they relied on their web developers to make sure that their websites would be accessible. Yet, when they find out that it is really hard (if not impossible) to sue a web developer for creating an inaccessible website, they're naturally frustrated. This makes perfect sense. After all, businesses (especially small ones) have little experience understanding how web pages should be designed so they go to a professional web developer who, even if they promise to make a fully accessible WCAG 2.1 A/AA compliant website, ultimately can't be held legally responsible for the inaccessibility of the site.
A few recent developments have come up that made me give this idea more thought, so I thought I would share my thoughts on the state of the law-- and how it may be changing in California.
I get it; you're busy and time is short. Here's the quick summary:
- It's difficult or impossible to sue a web developer directly for their inaccessible websites. That may change, however, with a bill currently working its way through the California legislature.
- Using an indemnification clause to shift responsibility to web developers will likely backfire. For better results, use a contribution clause instead.
Web Developers Can't Be Sued Directly... Or Can They?
Let's start with the simple part: the ADA. When a plaintiff sues a business because its website is inaccessible under the ADA, the business's liability hinges on whether it is a "place of public accommodation" in offering its goods and services to the public. Because the web developer who created that business's website isn't offering its goods and services to that plaintiff, they don't have any liability under the ADA towards that plaintiff. Web developers are only liable for the website for their own business if they offer web design services to customers.
What about California's Unruh Act? Unruh prohibits any kind of discrimination by any "business establishment" (which has a much broader definition than the ADA's "place of public accommodation") and it would make sense that it would be possible to sue a web developer directly for creating an inaccessible website. Even assuming that an Unruh plaintiff would be willing to expand a lawsuit to include a web developer, they would still face a harder time suing the web developer than the business. As we've mentioned before, to bring an Unruh claim without an underlying ADA claim requires intentional misconduct.
But this brings us to the first new development that got me thinking about writing this blog. On June 1, the California Senate amended Assembly Bill 1757, which attempts to limit the liability that companies face in web accessibility lawsuits. In a nutshell, it does this by:
- clarifying the kind of damage that a plaintiff needs to prove in an Unruh web accessibility case and
- creating a presumption against the plaintiff if the website met an existing standard (like WCAG 2.1 A/AA)
Frankly, this part is unexciting to me and barely moves the needle with respect to web accessibility (despite what other commenters have suggested, WCAG compliance is hardly novel based on the large number of consent decrees, settlement agreements, and worldwide adoption as the benchmark accessibility standard). It may also have the effect of making it much easier to sue online-only businesses in California (which are currently very hard to sue under Unruh). Where AB 1757 gets interesting, however, to me is in Section 3, which would update California Code to include the following paragraph,
It is unlawful for any resource service provider, in exchange for money or any other form of remuneration, to intentionally or knowingly construct, license, distribute, or maintain for online use, an internet website that fails to comply with the internet website-related accessibility standard.
And it would also both clients and their customers who relied on that website to sue the web developer!
Don't Get Greedy: Indemnification and Contribution
Another way in which it might be possible for web developers to be held liable for their inaccessible websites is for businesses to include an indemnification or contribution clause in their contracts. Last month, we talked about AB 950 and how that earlier version of the bill would encourage businesses to include indemnification and contribution clauses from their client. And that brings me to the second reason for writing this blog-- a recent (and excellent) blog article from my colleague Richard Hunt discussing Clover Communities Beavercreek, LLC v. Mussachio Architects P.C., 2023 U.S. Dist. LEXIS 98826 (N.D.N.Y. June 7, 2023).
Richard is a private practitioner and knows a lot more about indemnification and contribution than I'll ever know. If you want to know the details, I'll direct you to his blog post. What follows is my Reader's Digest version.
- In Fair Housing Act and ADA cases, using an indemnification clause (which seeks to shift ALL liability), there's a very good chance that the court will throw the clause out and hold the owner 100% liable. This comes out of Equal Rights Center v. Niles Bolton Associates, 602 F.3d 597 (4th Cir. 2010).
- But in those same cases, using a contribution clause (which shifts only part of the liability), then that clause may be honored by the court and the owner will only be partially liable. This is because of the recent opinion in Clover Communities (link above).
The Clover Communities case was a Fair Housing Act case but there isn't any reason it wouldn't work in ADA web accessibility cases.
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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