A proposed amendment to California’s Civil and Government Codes would limit the recovery of statutory damages in connection with certain digital accessibility claims, while also requiring certain government agencies to educate covered entities on their obligations to make their websites and mobile apps accessible under California law.

The accessibility amendments are proposed in Assembly Bill 950 (A.B. 950), sponsored by California Assembly member Brian Maienschein (D). The proposals address business concerns while incorporating flexibility that may benefit the disability community.

California’s current statutory damages regime under the Unruh Civil Rights Act (UCRA) makes the state an attractive venue for web accessibility claims alleging violations of the Americans with Disabilities Act (ADA). Under the ADA, plaintiffs may obtain injunctive relief, but monetary recovery is limited to attorneys’ fees. Significantly, an ADA violation is a per se violation of the UCRA, which allows plaintiffs to recover statutory damages of $4,000 per violation.

A.B. 950 would effectively limit this incentive to bring web accessibility claims in California by restricting the recovery of statutory damages to instances where an entity’s internet website “fails to provide equally effective communication or facilitate full and equal enjoyment of the entity’s goods and services to the public, including any member of the public who is disabled.” The bill defines “entity” broadly, as a “business establishment that is open to the public, a public place, or a place of public accommodation.” The term “internet website” includes “all internet web-based technology, including, but not limited to, a mobile application or app that can be accessed by a mobile device.”

To recover statutory damages for website inaccessibility, a plaintiff would be required to prove one or both of the following:

  1. That the plaintiff personally encountered a barrier that (a) interfered with their ability to access all or part of the business’s website and (b) caused the plaintiff to experience a difference in their ability to access or use the website as compared to others who are not disabled (e.g., unable to acquire the same information, engage in the same interactions, enjoy the same services with similar ease of use, or have the same level of privacy or independence); or
  2. That the plaintiff was deterred from accessing all or part of the website because of the website’s failure to provide equally effective communication or to facilitate full and equal enjoyment of the entity’s goods and services to all members of the public.

A.B. 950 would create a presumption, rebuttable “by a preponderance of the evidence,” of providing equally effective communication if a business’s website conforms to the Web Content Accessibility Guidelines (WCAG) 2.1 Level AA, established by the World Wide Web Consortium (W3C) Accessibility Guidelines Working Group.

Relatedly, as of Jan. 1, 2023, California law requires attorneys that send or serve complaints alleging that a website is not accessible to send a copy of the complaint and relevant information to the California Commission on Disability Access (CCDA), among other things. Yet, existing law does not provide details on what constitutes an inaccessible website for purposes of sending or serving a complaint. A.B. 950 would essentially fill this gap.

Notably, A.B. 950 provides businesses with the choice between the 2.1 Level AA standard and “any more stringent subsequent update, revision, or replacement to WCAG.” Correspondingly, it would require the CCDA to review those standards to determine whether they are the most up-to-date for effective communication by means of websites, and to notify the California Legislature if they are not up to date and should be revised. This aspect appears to provide some certainty to businesses as to what constitutes an accessible website, while recognizing that appropriate accessibility standards change with the passage of time and the emergence of new technologies.

In terms of governmental requirements, existing law requires each city and county that issues business licenses and building permits to provide informational notices about the state’s disability access laws to persons or entities applying for such licenses or permits. The bill would also require a statement in these informational notices that a business’s website is required to be accessible and to provide equally effective communication and facilitate full and equal enjoyment of the entity’s goods and services to the public, including any member of the public who is disabled. By imposing new requirements on local government agencies, the bill would create a state-mandated local program.

This potential requirement comes on the heels of the previously enacted A.B. 434 that requires state agencies and entities to post on the home page of their internet website a signed certification that the website complies with the state’s disability access laws and the WCAG 2.0 or subsequent versions published by the W3C with a minimum Level AA success criteria.

Takeaway

As the world becomes increasingly more digital, businesses should consider taking steps to ensure their digital properties conform to the WCAG 2.1 Level AA standard in order to mitigate risk and provide more inclusive customer experiences. Reed Smith will continue to monitor the bill and any future developments in the digital accessibility space.