The team at Converge Accessibility has been crazy busy this summer on some exciting and very different projects. For instance, we've been working with the Government of Canada to help develop new standards under the Accessible Canada Act and we've been working with the City of Centennial in Colorado prepare for the July 2024 deadline set by 21-1110. This means that our blog has taken a hit in content. Once these projects get to a point where we can talk about them more, I'll devote a few posts to them because they really show why and how we're a different kind of accessibility consulting firm.
In the meantime, however, I wanted to share my thoughts on California's AB 1757. I like to think of myself as a very balanced attorney and consultant. I believe that businesses ultimately want to improve opportunities for people with disabilities if doing so isn't disruptive to their day-to-day work. Starting from that point of view, I believe that AB 1757 is important to support. While AB 1757 will cause some short term discomfort, it's ultimately good for business and good for people with disabilities.
What is AB 1757?
As I mentioned at the beginning of the month, I've been following this bill for awhile. In a nutshell, it clarifies that online businesses can be sued if the company's website doesn't offer an equally effective way of reaching the companies goods and services. The bill isn't exactly clear about what this means. For instance, if my company had a completely inaccessible website but I placed a link to our telephone number in the middle of the page through which a user could get the same information, is that good enough?
It's also not clear whether online-only businesses are suddenly open to lawsuits under the new bill. The bill 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 under Sections 51, 54, and 54.1." But, as readers of this blog know, the only issue that has been resolved in California was that online businesses could not be sued for accessibility violations if the plaintiff had not demonstrated an intent to create an inaccessible website. I think that AB 1757 removes the "intent" requirement but reasonable minds can differ.
So far, the bill isn't that dramatic. Where AB 1757 gets interesting-- and potentially helpful-- is two other areas. First, it states that, if a website conforms to WCAG 2.1 A/AA, then it creates a presumption that the website is accessible. On it's face, this may not seem dramatic; any web accessibility consultant worth his salt has been saying something similar to their clients for decades because DOJ and private plaintiffs have been using WCAG in their settlement agreements as the gold standard for web accessibility. The real importance, however, comes from the fact that AB 1757 now requires companies to either conform to WCAG or be prepared to demonstrate an equally effective means of providing access.
Second, AB 1757 imposes liability on web developers or companies that make inaccessible websites. This is really novel-- and needed-- because platform providers and web developers have had little motivation to make accessible sites for their clients.
Why Setting WCAG As the Benchmark is Important
At least half the time that a new defense attorney comes to me with a web accessibility case, both the attorney and the client complain that they never knew web accessibility was required. This is because my former office at the U.S. Department of Justice has been feckless when it comes to web accessibility. I've maintained for a long time that the lack of clear standards is the biggest driver in web accessibility litigation. Nonetheless, every time DOJ has an opportunity to provide that clarity by updating its Title II and Title III web accessibility regulations, they have ducked the issue. Even a relatively simple rule like the ADA Title II web accessibility regulation is already two months late. Honestly, i'd be shocked now to see if before the end of the summer.
So what business does California have in stepping into this void? Well, everything, because the state is setting the ground rules for protecting California residents with disabilities under California law (Unruh Act and the Disabled Persons Act). I think the experience of the privacy profession might be useful to consider here. For years, websites gathered data about their visitors without telling users about their privacy practices. Congress knew about the problem but did nothing. Then California passed the California Online Privacy Protection Act ("CalOPPA") and suddenly there was awareness of the issue. CalOPPA also required that websites included a privacy statement-- and just about every major website fell in line quickly. Like CalOPPA, AB 1757 offers clarity and brings awareness to the need for companies to make their websites conform with WCAG A/AA.
Web accessibility litigation is currently a feeding frenzy. UsableNet predicts that, by the end of 2023, there will be 4,220 new accessibility cases filed, with the vast majority filed in Florida. This volume of litigation is due to the ADA's clear effective communication requirement combined with the lack of guidance from DOJ about how to achieve effective communication with websites.
Web Developers: Placing Liability Where it Belongs
I've blogged previously about the need for content management systems (CMSs) and web developers to take web accessibility seriously. Under current law (both the ADA and Unruh), only the business that uses a website can be held liable if the website is inaccessible. This is hardly fair because those businesses usually have little control over the accessibility of the CMS (e.g. Shopify, WordPress, etc.) or website. Even if they build an accessibility requirement into their contract with the CMS provider or web developer, they will never really know if the site is accessible because assessing accessibility can be difficult and expensive.
AB 1757 recognizes this by making web developers, CMS providers, and other organizations that affect the content or appearance of websites liable if the website is inaccessible. This will be a huge industry shift and will make it much easier for businesses with customers in California to ensure that their websites are accessible because their developers and tool providers will be on the hook if it isn't accessible.
Short-Term Pain Versus Long-Term Gain
I agree that, in the short term, AB 1757 will cause a lot of pain. Companies will get sued more often. Web developers will have to charge more and some may decide to go out of business. Probably the only ones who will benefit in the short-term are plaintiff attorneys and consultants (yes, myself included).
But I think that the long-term benefits outweigh the short-term pain. Once WCAG becomes the universally recognized standard, websites will become much more accessible to people with disabilities. Web developers and CMS providers will develop more accessible websites. Plus, companies will know that they need to consider accessibility when contracting with web development services. Only then can the ever-increasing number of web accessibility cases start to fade.
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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