Seyfarth Synopsis: AB 1757 would adopt WCAG 2.1 Level AA as the de facto standard for websites and mobile apps that can be accessed from California and impose liability for statutory damages on business establishments and website developers.
In a classic gut and amend move mid-way through the Legislative Session, on June 12 the California Assembly’s Judiciary Committee replaced the entire content of an existing bill on courts, AB 1757, with language that would effectively make WCAG 2.1 Level AA the required standard for the websites and mobile apps of “business establishments” covered by the Unruh Civil Rights Act. And, in an unprecedented step, the bill would allow individuals with disabilities as well as business establishments to sue third party developers that create noncompliant websites and mobile apps.
The digest summarizing the bill tries to make it look business-friendly by couching it as imposing a limit on the availability of statutory damages under the Unruh Act and Disabled Persons Act (DPA) to plaintiffs. The bill would allow plaintiffs with disabilities to recover damages where the “website fails to provide equally effective communication or facilitate full and equal enjoyment of the entity’s goods and services to all members of the public,” and the plaintiff (1) personally encountered a barrier to equal access or (2) was deterred from accessing all or part of the website or the content of the website due to the website’s inaccessibility. However, these principles are already in existing caselaw so business establishments are not getting any new benefits from these provisions. Instead, this bill would significantly expand the legal liability of business establishments, as well as their third party web developers, for websites and mobile apps that do not conform to WCAG 2.1 AA.
First, the bill adopts WCAG 2.1 AA as de facto standard for websites and mobile apps for the entire United States, not just California. Under existing law, a plaintiff seeking to establish a violation of the Unruh Act based upon a website or mobile app must show that the business has violated the Americans with Disabilities Act (ADA). This is the only avenue for establishing a violation because the California Court of Appeals has held that having an inaccessible website does not constitute “intentional discrimination,” and intent must be shown for a plaintiff to prevail on an Unruh Act claim that is not based upon a violation of the ADA.
The ADA does not presently mandate compliance with WCAG 2.1 AA for the websites or mobile apps of public accommodations. Instead, the ADA mandates that public accommodations provide auxiliary aids and services as necessary to ensure “effective communication” with individuals with disabilities in the provision of their goods and services. While having a website and mobile app that can be used by individuals with disabilities is one way of ensuring effective communication, the U.S. Department of Justice (DOJ) and the courts have left open the possibility that public accommodations can ensure effective communication of the information on their websites/mobile apps in some other fashion. In 2022, the DOJ issued a Guidance on website accessibility stating that “businesses … have flexibility in how they comply with the ADA’s general requirements of nondiscrimination and effective communication” and references WCAG as “helpful guidance.”
In addition to the “flexibility” afforded businesses under the ADA when providing “effective communication,” a business under the ADA can claim that providing effective communication presents an “undue burden” or fundamentally alters the nature of the goods and services it provides. AB 1757 contains no such defenses.
Thus, in contrast to the current state of the law under the ADA which would apply to an Unruh Act lawsuit, AB 1757 dictates that websites and mobile apps themselves must provide “effective communication” and a website or mobile app is presumed to provide equally effective communication if it complies with the Web Content Accessibility Guidelines 2.1 Level AA. In short, the bill creates a de facto requirement that all websites and mobile apps that can be accessed by people in California conform to the WCAG 2.1 Level AA and contains no defenses or exceptions for undue burden. This is a tall order considering that even federal government websites right now are only required to comply with the less demanding requirements of WCAG 2.0 Level AA (and, as DOJ recently reported, many of those websites do not). Moreover, because all websites in the United States can be accessed in California, WCAG 2.1 AA will become the de facto national standard for website accessibility.
Second, the bill contains no transition period for covered businesses. Another troubling aspect of the bill is the absence of a transition period for business establishments and their developers to bring existing websites and mobile apps into conformance with WCAG 2.1 Level AA. In our experience, bringing existing websites into conformance with this standard can take many months, significant resources, training of web content managers and developers, and the assistance of expensive website accessibility consultants and web developers.
Third, the bill does not address undue hardship on small businesses. As we know, most small businesses do not create their own websites and have no understanding of how to make a website conform with WCAG 2.1 AA. It is unlikely that they will have the resources to comply with WCAG 2.1 AA with no transition period. Even the DOJ acknowledged in its now defunct website accessibility rulemaking for public accommodations that a transition period may be necessary and that small businesses may need a different compliance timetable. The threat of greater legal exposure could result in small businesses taking their websites down, which could have dire consequences for their ability to drive business.
Fourth, liability for website and mobile app developers will drive up the cost of website development. AB 1757 would give individuals with disabilities and business establishments the new right to sue web developers for creating websites that do not conform to WCAG 2.1 Level AA. While this new cause of action will likely incentivize website/mobile app development companies to create WCAG 2.1 AA conforming websites, it will also drive the cost of website development higher and could cause small web developers out of business.
It should be noted that the language in the existing bill, AB 1757, was taken from AB 950 which died in the Assembly Appropriations Committee. That Committee Analysis found that the bill would result in various costs, including a cost of $800,000 if just 50 plaintiffs or public prosecutors brought lawsuits under the bill. While we do not track lawsuit filings in California state courts, we know from our federal court filing statistics that the Committee’s estimates on the number of lawsuits is much too low. There were 3,255 website accessibility lawsuits filed in federal court in 2023—an all-time high.
One would think that the business community – public accommodations and website developers – would be opposing this bill or working to amend it, but we hear that business groups are supporting the bill. We and many other defense lawyers practicing in this space are perplexed by this reaction.
AB 1757 is presently in the Senate Judiciary Committee for consideration of these amendments. If approved by the requisite committees and vote of the full Senate, the bill would then return to the Assembly for concurrence in the amendments by September 14 before going to the Governor for his approval. If this bill becomes law in its present state, it could well open the floodgates of website and mobile app accessibility lawsuits in California.