Did you know the number of website accessibility lawsuits filed in 2022 reached a staggering 4000?
Moreover, thousands of businesses have received pre-litigation demand letters alleging website inaccessibility issues. This trend is anticipated to intensify with the enactment of California’s AB 1757 legislation, which took effect on January 1st, 2023.
According to the bill, all California websites must adhere to the Web Content Accessibility Guidelines (WCAG) 2.1 Level AA. The regulation thus poses a threat to businesses with inaccessible websites and apps as it changes the legal landscape entirely.
The Background to the Evolution of AB 1757
There are two existing California laws prohibiting discrimination against disabilities, which are:
- The Unruh Act applies to businesses offering goods or services to the public. It is a landmark civil rights bill allowing plaintiffs to sue businesses discriminating against the public based on disability status, race, ethnicity, gender, and other characteristics.
It applies to all Californian businesses, irrespective of whether they have a physical office in the state. This is how and why AB 1757 limits and extends the Unruh Act.
- The Disabled Person’s Act, or DPA, is a California law prohibiting discrimination against individuals with disabilities in employment, housing, education, public accommodations, and transportation. The California Department of Fair Employment and Housing enforces it.
Though these laws prohibit discrimination against disabilities, the problem was that it wasn’t sure if they applied to websites and mobile app accessibility.
It thus made it difficult for people with disabilities to enforce their rights against businesses having inaccessible websites or mobile apps.
Besides, according to the Americans with Disabilities Act (ADA), people with disabilities must be able to access all websites and mobile apps. It includes people who are hard of hearing, blind, deaf, have low vision, or have some physical or cognitive disability.
The AB 1757 thus changes things as it requires that websites and mobile apps conform with WCAG 2.1.
This, in turn, means that firm technical requirements must be met to ensure website accessibility. In the process, it also gives plaintiffs a means of suing third-party developers who create non-compliant apps and websites.
What Exactly is in The Assembly Bill 1757?
The AB 1757 in California is famously known as the ‘Accessibility for All Californians Act’ and was enacted into law before the Senate Appropriations Committee.
It adopts WCAG 2.1 level AA as the level of accessibility to which websites and mobile apps offering goods or services must adhere.
However, California’s AB 1757 puts businesses at risk of lawsuits by letting plaintiffs sue companies with websites and mobile apps that do not conform with WCAG 2.1 Level AA standards.
What is WCAG?
These WCAG standards are guidelines set by the Web Accessibility Initiative (WAI) of the World Wide Web Consortium (W3C). These guidelines make web content accessible to people with disabilities and understandable by all users.
The W3C is the leading international standards organization of the internet. The WAI is a group of people or organizations that work to ensure web accessibility to people with disabilities.
Examples of guidelines are:
- Maintaining increased color contrast between page elements
- Ensuring screen readers can read all elements
- Placing elements logically to facilitate consistent navigation through the page.
AB 1757 With Presumption of Accessibility Amidst Uncertainty
The proposed legislation, AB 1757, would establish a presumption of accessibility if a website adheres to WCAG 2.1 Level AA, a set of guidelines for making web content more accessible. However, it would not explicitly mandate that websites comply with WCAG 2.1 Level AA.
Despite this, there are concerns that plaintiffs and even courts might interpret the bill’s language as implying a mandatory requirement. This could lead to an increase in lawsuits against businesses with non-compliant websites.
The reason is that AB 1757 acknowledges the diversity of compliant implementations but fails to provide clear guidelines for interpreting and applying these standards.
Proponents of the bill argue that it is necessary to ensure that all Californians have equal access to the internet, regardless of their disability. They maintain that the presumption of accessibility would provide businesses with a clear benchmark for compliance and reduce legal uncertainty.
However, opponents of the bill argue that the need to comply with WCAG 2.1 Level AA would place an undue burden on businesses, particularly small businesses. They also contend that the presumption of accessibility could lead to frivolous lawsuits.
The reason is that while AB 1757 recognizes the existence of various compliant implementations, it does not define how these implementations should be assessed and applied.
This lack of clarity has fuelled arguments from plaintiffs that a single non-conforming element can render the entire website inaccessible and, therefore, in violation of the law.
So, the debate over AB 1757 will continue as the bill progresses through the California legislature. The absence of detailed guidelines in AB 1757 has created uncertainty for businesses seeking to comply with the law.
Without a clear understanding of what constitutes a conforming implementation, businesses risk facing lawsuits based on subjective interpretations of accessibility standards.
To address this issue, the notion is that AB 1757 should be amended to provide more specific guidance on the interpretation and application of conforming implementations.
This would provide businesses with a more transparent framework for ensuring their websites are accessible to all users, regardless of their abilities.
AB 1757 and its Effects on California Small Businesses
The general verdict is that the bill offers minimal benefit to small businesses because of a lack of clarity on the criteria for websites or mobile apps conforming to WCAG 2.1 Level AA.
Small businesses will thus need to hire experts to determine compliance before a court. Then, there are the litigation costs that are, in turn, too high for small businesses.
This has led to discussions and awareness built around the topic in website forums. On the contrary, small businesses feel they need legislation that helps them understand the requirements to communicate better and ensure accessibility to users with disabilities.
They also prefer receiving legal notice to promptly take care of any issues instead of going through costly lawsuits and paying for unaffordable statutory damages.
Besides, the surge in lawsuits stemming from AB 1757 is placing an unprecedented strain on state and federal courts, further complicating the business landscape for small businesses in California.
The stringent WCAG 2.1 Level AA compliance requirements mandated by AB 1757 are expected to escalate legal action against small businesses with websites that fall short of these standards. However, attaining full compliance often proves financially insurmountable for many small businesses.
Moreover, the absence of a defined compliance timeline fails to provide small businesses with the necessary time to adapt to the new regulations. This lack of flexibility further exacerbates the challenges faced by small businesses in navigating the complexities of AB 1757.
It is essential to recognize that complete conformity to every WCAG criterion is neither practical nor feasible, particularly considering the ever-evolving nature of websites.
Besides, achieving 100% compliance is not a prerequisite for ensuring website accessibility and usability for individuals with disabilities.
So, by incorporating a more nuanced approach to website accessibility, AB 1757 can strike a balance between protecting the rights of individuals with disabilities and supporting the growth and sustainability of small businesses in California.
AB 1757: A Legal Landscape Shift for Web Developers
AB 1757 heralds a significant shift in the legal landscape, potentially imposing far-reaching implications for web developers.
Under current legislation, plaintiffs seeking to file a lawsuit against a business for website accessibility issues must demonstrate that the business has violated the Americans with Disabilities Act (ADA) or engaged in intentional discrimination under the Unruh Act.
However, the California Court of Appeals has ruled that merely having an inaccessible website does not constitute intentional discrimination, rendering it insufficient grounds for an Unruh Act claim.
AB 1757 seeks to overturn this precedent by explicitly holding businesses with inaccessible websites liable under the Unruh Act, regardless of intent.
This effectively lowers the burden of proof for plaintiffs, making it easier to pursue legal action against businesses.
Plaintiffs seeking statutory damages under AB 1757 just need to demonstrate a website’s non-compliance with WCAG 2.1 Level AA standards has directly hindered their ability to access or fully utilize the goods or services offered by the website.
They just have to prove that they have encountered a barrier to access. And that this barrier has prevented them from accessing all or part of the website or its content.
Furthermore, AB 1757 expands the scope of potential defendants by allowing lawsuits against website developers and business establishments.
This expansion of liability could have a chilling effect on the development and maintenance of websites, thus increasing their exposure to lawsuits from businesses and plaintiffs with disabilities.
The combined effect of these requirements could lead to a dramatic rise in web accessibility litigation in California.
Businesses may face lawsuits from plaintiffs seeking statutory damages, while businesses and plaintiffs could target developers.
Businesses and developers may become more cautious in ensuring website accessibility. And developers may become more cautious in ensuring accessibility for fear of legal repercussions.
In short, the passage of AB 1757 could thus have a significant impact on the way businesses operate in California. It could increase legal costs and deter innovation in website development.
Thus, web developers must closely monitor this bill’s progress and take proactive measures to ensure their websites adhere to accessibility standards.
Four Major AB 1757 Consequences on Developers and Resource Providers
In addition to an increased likelihood of facing lawsuits due to inaccessibility, AB 1757 has the following consequences for web developers and resource providers:
Legal transformation of guidelines
The bill converts the flexible WCAG 2.1 AA recommendations into enforceable legal standards. Consequently, all it takes is one instance of non-compliance with these guidelines to lead to plaintiff attorneys and clients placing expensive lawsuits.
According to the bill, all California websites should be accessible by January 1, 2024. This is irrespective of their launch date or place of hosting. Not only is this deadline challenging to achieve, but failure to do so leads to an increased risk of lawsuits.
The bill permits Californian attorneys to sue businesses and their web developers for as low as $4,000 of statutory damage for a single visit to an inaccessible website.
The bill has a ‘Safe Harbour’ clause to shield lawsuits and apps from lawsuits if they are 100% WCAG 2.1 AA compliant. This clause is rendered deceptive because it’s not a safety net but, on the contrary, sets stringent and practically impossible requirements to meet.
Web Accessibility and the U.S. Department of Justice
The U.S. Department of Justice (DOJ) acknowledges the complexities of website accessibility. It is proven by its extensive regulatory process and proposed transition period for businesses to align with WCAG 2.1 Level AA.
On the contrary, AB 1757 fails to incorporate these considerations, potentially exacerbating business legal challenges.
In 2022, the DOJ issued a Guidance emphasizing flexibility in ADA compliance and recognizing WCAG as a helpful resource. However, AB 1757 would mandate WCAG compliance, removing the flexibility businesses need to adapt effectively.
Moreover, AB 1757 disregards the ADA’s defenses for “undue burden” and altering services. This omission could lead to increased lawsuits against businesses, even if they have made reasonable efforts to improve website accessibility.
In contrast to the optimistic claims made in the bill’s commentary, AB 1757’s lack of consideration for compliance challenges and DOJ guidelines could increase the number of lawsuits against businesses.
Three Examples of Successful Website Accessibility Settlements
In recent years, several businesses have reached settlements with individuals who have sued them for violating website accessibility laws. These settlements highlight the importance of making websites accessible to everyone, regardless of their abilities.
Here are three examples of successful website accessibility settlements:
- In 2022, a blind woman sued Domino’s Pizza for violating website accessibility laws. The lawsuit alleged that Domino’s website was not compatible with screen readers.
This could have been prevented as there are software programs that allow people who are blind or visually impaired to navigate websites. Domino’s had to settle the lawsuit for $1.3 million.
- In 2022, a deaf man sued Walgreens for violating website accessibility laws. The lawsuit alleged that Walgreens’ website did not include captions for its videos.
Captions are textual representations of audio content that allow people who are deaf or hard of hearing to understand the videos. Walgreens settled the lawsuit for $2.5 million.
- In 2023, a woman with a learning disability sued Netflix for violating website accessibility laws. The lawsuit alleged that Netflix’s website was not designed to be easy to navigate for people with learning disabilities. Netflix settled the lawsuit for $1.5 million.
These settlements show that businesses are increasingly held accountable for making their websites accessible to everyone. Businesses that fail to comply with website accessibility laws may face expensive lawsuits.
Frequently Asked Questions
Here are a few frequently asked questions concerning AB 1757 and California businesses, web developers, and resource providers.
1. What Are The Penalties Businesses Can Face For Violating AB 1757?
Businesses can be sued for damages, including attorney’s fees, for violating AB 1757. There may be situations where businesses may also be asked to pay civil penalties.
2. Are Any Resources Available To Help Businesses Comply With AB 1757?
Yes, the good news is that there are multiple resources businesses can use to help them comply with AB 1757. Examples are:
- The California Department of Fair Employment and Housing has a website containing all information related to AB 1757. This includes a checklist of how businesses should make their websites and mobile apps accessible.
- The Web Content Accessibility Guidelines (WCAG)
- The W3C is a non-profit organization developing standards for the World Wide Web and has numerous valuable resources on web accessibility, like tutorials.
3. What Can California Businesses Do TO Ensure Accessible Websites And Mobile Apps?
Businesses can adopt various measures to ensure their websites and mobile apps are accessible to disabled individuals. Here are some crucial steps to consider:
Embrace Alternative Text for Images:
Alternative text, commonly known as alt text, provides a detailed description of images that screen readers can read aloud. This feature enables individuals with visual impairments to grasp the content and context of images, enhancing their overall website experience.
Incorporate Captions for Videos:
Captions are the textual representation of audio content in videos. They are particularly beneficial for individuals who are deaf or hard of hearing It allows them to follow the video’s narrative and engage with the material effectively.
Maintain Clear and Concise Language:
Employing straightforward language ensures that individuals with varying cognitive abilities can easily understand website content. Avoiding jargon, technical terms, or overly complex sentence structures that may hinder comprehension thus helps.
Design a User-Friendly Interface:
Create a website and mobile app interface that is intuitive and easy to navigate. Implement clear menus, consistent links, and accessible buttons to ensure a seamless user experience for individuals with physical or motor impairments.
Conduct Regular Accessibility Tests:
Conduct regular accessibility testing to identify and rectify potential barriers hindering disabled users. Also, use assistive technologies and involve individuals with disabilities in testing to gain comprehensive feedback.
By implementing these measures, web developers and businesses in California can foster a more inclusive digital environment. They thus ensure that their websites and mobile apps are accessible to all users, regardless of their abilities, to avoid the risk of lawsuits.
AB 1757 is a vital law helping ensure individuals with disabilities gain equal access to the internet. However, the lack of a clear compliance timeline, transitional provisions, and recognition of potential financial burdens could impose undue hardship on businesses, hindering their ability to adapt promptly.
Consequently, the legislation might trigger a lawsuit surge instead of promoting a more inclusive digital environment. For businesses operating in California, they must take steps to stay abreast of the evolving legal landscape to avoid lawsuits.
Additionally, they should proactively address web accessibility issues to mitigate potential risks and contribute to a more accessible future for all users.
A compliance plan and ensuring WCAG conformance are the best paths to business compliance.
Ensuring compliance is, however, a win-win situation for businesses as its benefits extend far beyond adhering to legal requirements.
When content is designed to be accessible to diverse users, it unlocks many advantages that benefit businesses and individuals.
Businesses can effectively expand their reach, attract a broader customer base, foster more profound engagement, and enhance their search engine optimization (SEO) strategies. These factors contribute to increased revenue, improved brand reputation, and a more inclusive digital presence, proving the need and importance of the bill AB 1757.
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The ADA prohibits any private businesses that provide goods or services to the public, referred to as “public accommodations,” from discriminating against those with disabilities. Federal courts have ruled that the ADA includes websites in the definition of public accommodation. As such, websites must offer auxiliary aids and services to low-vision, hearing-impaired, and physically disabled persons, in the same way a business facility must offer wheelchair ramps, braille signage, and sign language interpreters, among other forms of assistance.
All websites must be properly coded for use by electronic screen readers that read aloud to sight-impaired users the visual elements of a webpage. Additionally, all live and pre-recorded audio content must have synchronous captioning for hearing-impaired users.
Websites must accommodate hundreds of keyboard combinations, such as Ctrl + P to print, that people with disabilities depend on to navigate the Internet.
Litigation continues to increase substantially. All business and governmental entities are potential targets for lawsuits and demand letters. Recent actions by the Department of Justice targeting businesses with inaccessible websites will likely create a dramatic increase of litigation risk.
Big box retailer Target Corp. was ordered to pay $6 million – plus $3.7 million more in legal costs – to settle a landmark class action suit brought by the National Federation of the Blind. Other recent defendants in these cases have included McDonald’s, Carnival Cruise Lines, Netflix, Harvard University, Foot Locker, and the National Basketball Association (NBA). Along with these large companies, thousands of small businesses have been subject to ADA website litigation.
Defendants in ADA lawsuits typically pay plaintiff's legal fees, their own legal fees for defending the litigation, and potential additional costs. In all, the average cost can range from tens of thousands of dollars, to above six figures. There are also high intangible costs, such as added stress, time and human capital, as well as reputational damage. Furthermore, if the remediation is incomplete, copycat suits and serial filers can follow, meaning double or triple the outlay. It's vital to implement a long-term strategy for ensuring your website is accessible and legally compliant.