Driving the news:
On March 2, 2023, Assembly Bill 1757 (AB 1757) was introduced at the California State Assembly, which would require businesses to comply with web accessibility standards. It would also expand liability under the Unruh Civil Rights Act (URCA). Following its introduction, the bill underwent several amendments to refine its provisions and address concerns from various stakeholders. Significant amendments were made on June 12, 2023, July 3, 2023, July 13, 2023, August 15, 2023, and finally on June 12, 2024. Each amendment aimed to clarify the bill’s requirements and improve its implementation framework.
On June 24, 2024, the bill reached a critical juncture when it was referred to the suspense file by the committee. This status indicates that while the bill has made substantial progress, it is temporarily on hold as further deliberation and analysis are conducted.
What the bill contains:
WCAG 2.2 AA compliance
Businesses operating within the state would need to ensure that their websites conform to the Web Content Accessibility Guidelines (WCAG) 2.2 Level AA standards and standards established under Section 508 of the Federal Rehabilitation Act of 1973.
Auditing proves compliance
The bill would also create a presumption that a website complies with the law if the website is certified by a professional reviewer. The certification would require both automated and manual testing. This would also extend to certain third-party content linked on or otherwise available on the website. This presumption of compliance would affect a plaintiff’s burden of proof at trial, and allow the defending entity to seek a court stay and early evaluation conference.
Clarity on who may be sued
The bill attempts to provide clarity on who may be sued under the URCA, California’s analogue to the Americans with Disabilities Act (ADA). Unlike the ADA, the URCA allows plaintiffs to recover monetary damages from businesses– up to $4,000 per violation, which courts have interpreted an inaccessible website as a single violation. AB 1757 specifies that any entity responsible for creating, maintaining, or distributing websites must comply with accessibility standards.
Damages
AB 1757 changes how statutory damages are awarded in digital accessibility cases. Under the URCA, they can now only be paid if an entity’s websites fail to provide equally effective communication or enjoyment of an entity’s goods and services to members of the public with disabilities. Plaintiffs must show they encountered specific barriers that prevented them from accessing or using the website, or they were deterred from using the website due to these barriers. Plaintiffs can also claim damages if they were discouraged from attempting to use the website because it was not accessible, even if they did not personally encounter a barrier.
What the bill does not contain:
The bill does not remove any rights or protections people with disabilities have under other state or federal laws or change any rules about physical buildings or locations. Additionally, it does not assume that businesses are at fault – presumption of liability – nor does it change how proof is handled, except for the specific presumption of compliance mentioned.
It also excludes liability for certain third-party websites linked to a business’s web page unless those websites are necessary for interacting with the business or related to its products and services.
The proposed law specifically does not address whether businesses with only websites and no physical locations in California can be sued under the URCA. Current case law states that purely digital retail websites are not considered “places of public accommodation” unless connected to a physical business location in California, to be the subject of a lawsuit under URCA and Title III of the ADA.
What else the bill does:
AB 1757 extends liability to those who create or maintain websites or provide resources used on websites, known as “resource service providers”. However, it does not apply to entities that only provide hosting or hardware support without involvement in the website’s design, construction, or control.
The providers’ liability cannot be transferred to the entity that hired them, and any contract clauses attempting to shift liability away from the provider are considered void and unenforceable.
CA SB 1486:
Senator Dahle introduced SB 1486 on February 16, 2024, as part of California’s ongoing efforts to enhance website accessibility. The bill was subsequently amended in the Senate on March 20, 2024. However, a scheduled hearing on April 8, 2024, was postponed.
SB 1486 complements AB 1757 by reinforcing the requirement for businesses to comply with the Web Content Accessibility Guidelines (WCAG) 2.1 Level AA. While both bills share this fundamental mandate, SB 1486 also introduces several unique provisions.
- Presumption of compliance: Websites that meet the WCAG 2.1 Level AA standards are presumed to be compliant, shifting the burden of proof to contesting parties to provide clear and convincing evidence otherwise.
- Third-party content requirements: The bill mandates that third-party content linked from compliant websites must also adhere to accessibility standards, preventing circumvention of the law.
- Application to civil actions: Effective January 1, 2024, SB 1486 applies to all new civil actions, ensuring that updated standards and processes govern new complaints.
Additionally, the bill covers specific legal protections and procedures to help manage compliance and reduce the costs of legal disputes. If a website can prove it follows the required guidelines, it can use a “presumption of compliance,” meaning it’s assumed to be accessible unless proven otherwise. This allows for court stays and early evaluations, which can help resolve issues more quickly and cheaply, reducing litigation’s overall financial and operational burdens.
The bottom line:
Both bills represent a significant push towards stringent and enforceable web accessibility standards in California. While AB 1757 focuses on immediate compliance and liability, SB 1486 simplifies legal processes and makes handling lawsuits more efficient. Both will impact businesses and developers, potentially setting a precedent for national standards. By addressing immediate compliance and the legal framework for managing disputes, California aims to create an environment where digital accessibility is prioritized, benefiting individuals with disabilities and promoting inclusive practices across the state.
