California Takes Lead on Website Accessibility Standards

In a significant development this summer, the California Assembly's Judiciary Committee shook up the legal landscape for businesses with an online presence. On June 12, 2023, they introduced Assembly Bill 1757 (AB 1757), originally aimed at court consolidation but now proposing heightened standards for website and mobile application accessibility. This proposed legislation could have far-reaching implications for business owners, particularly those whose websites and mobile apps are accessed in the state of California.

Under the revised AB 1757, businesses defined as "business establishments" open to the public, public places, places of public accommodation, or those subject to California's Unruh Civil Rights Act, must comply with the Web Content Accessibility Guidelines (WCAG) 2.1 Level AA standards. Non-compliance could result in substantial penalties, including statutory damages of $4,000 per occurrence, legal fees, and injunctive relief. Recent amendments also introduce the requirement for professional reviewers to annually certify compliance, particularly after website revisions affecting accessibility.

Why It Matters – In California.

As the digital accessibility landscape evolves, AB 1757 holds significant implications for business owners. It represents the first instance where a U.S. governmental entity is proposing to officially codify WCAG 2.1 as a governing standard. Its broad application means that virtually any business with a web presence accessible in California may fall under its purview.

The heightened compliance requirements, including synchronized captions for live audio content and audio descriptions for prerecorded video content, necessitate a proactive approach to integrate accessibility considerations into website development processes. This law might even supersede less stringent federal standards, such as those under Section 508 of the Rehabilitation Act.

Importantly, AB 1757 establishes an "Equally Effective Communication" standard, allowing individuals with disabilities to seek damages if a website inhibits their access or enjoyment of goods and services. This legal standard could potentially challenge longstanding FCC requirements governing telecommunications and advanced communication services.

Moreover, AB 1757 extends liability to both businesses and third-party developers, creating a shared responsibility for accessibility compliance. Businesses and resource service providers who construct, license, distribute, or maintain websites are subject to potential legal action for noncompliance.

Lastly, unlike some regulations, AB 1757 does not provide a transition period for businesses to achieve compliance. As such, business owners should pay close attention to this rapidly evolving legal landscape and take proactive steps to ensure their digital properties meet these new accessibility standards.

In essence, AB 1757 signifies a critical juncture in the world of digital accessibility, and business owners should be prepared to adapt swiftly to meet the evolving requirements, not only for the benefit of their customers but also to avoid potential legal and financial consequences.

Why It Matters – Everywhere Else.

The implications of AB 1757 stretch far beyond the Golden State's borders, potentially impacting businesses on a national scale. The reason lies in the digital nature of the legislation; any website based in California could be accessed by users across the United States. Consequently, AB 1757 could effectively establish WCAG 2.1 AA as the national standard for website accessibility. This raises crucial questions regarding the intersection of AB 1757 and the Americans with Disabilities Act (ADA), which presently does not mandate businesses to adhere to WCAG 2.1 AA for the websites or mobile applications of public accommodations. Instead, the ADA requires public accommodations to provide auxiliary aids and services to ensure "effective communication" with individuals with disabilities. It's worth noting that the U.S. Department of Justice (DOJ) has recently emphasized the "flexibility" in complying with the ADA's "general requirements of nondiscrimination and effective communication" and merely considers WCAG as "helpful guidance." In a related move, on July 25, 2023, the DOJ issued a Notice of Proposed Rulemaking (NPRM) proposing specific requirements for web and mobile app accessibility, including adherence to WCAG 2.1 AA within two to three years of the final rule's implementation, depending on entity size.

For business owners across the country, AB 1757 represents a potential game-changer. While the bill might not have immediate implications, its status as a "2-year bill" means it's very much alive and could become law in 2024. If that happens, WCAG 2.1 AA could become the de facto standard for website accessibility not just in California but nationwide.

Businesses should pay close attention to how AB 1757 unfolds, particularly regarding its interactions with the ADA and the DOJ's proposed regulations. Aligning your digital properties with WCAG 2.1 AA standards may soon become a national requirement, impacting how businesses communicate with and serve individuals with disabilities. Therefore, proactive measures to ensure digital accessibility could save business owners from potential legal and financial consequences down the road, while also demonstrating a commitment to inclusivity and equal access for all customers, regardless of their abilities. As AB 1757 continues to evolve, business owners must remain adaptable and informed to navigate this changing landscape effectively.