The Evolving Landscape of Digital Accessibility Legislation

October 6, 2023

The Pre-AB 1757 Era: A Patchwork of Legal Requirements

Before the introduction of California's AB 1757, the legal landscape for digital accessibility in the United States was a complex tapestry of federal and state laws, court decisions, and guidelines. At the federal level, Title II and Title III of the Americans with Disabilities Act (ADA) provided a broad framework for accessibility but lacked specific regulations for online platforms.

The Unruh Act in California

In California, the Unruh Civil Rights Act has been a significant piece of legislation for ensuring accessibility. However, recent court decisions have clarified its limitations. Specifically, the Court of Appeal of the State of California ruled that purely digital businesses with no physical "place" open to the public are not covered under section 51(f) of the Unruh Act. Moreover, the court held that "intentional discrimination" must be established for claims under section 51(b) of the Unruh Act.

The DOJ's Proposed Rulemaking: A Game-Changer

The Department of Justice's (DOJ) recent Notice of Proposed Rulemaking (NPRM) under Title II of the ADA has the potential to significantly impact the digital accessibility landscape. The proposed rule aims to adopt the Web Content Accessibility Guidelines (WCAG) 2.1 Level AA as the technical standard that public entities must follow.

The California Context: Setting the Stage for AB 1757

In this evolving landscape, California's AB 1757 emerges as a significant piece of legislation that aims to provide more specificity to existing laws. Its introduction is timely, given the DOJ's parallel efforts at the federal level.

In the sections that follow, we will delve deeper into the intricacies of AB 1757, examining its key provisions, the debates surrounding its potential impact, and how it aligns or diverges from the DOJ's proposed rulemaking.

Stay tuned as we navigate the complexities of digital accessibility legislation, a topic that holds significant implications for both public entities and businesses striving to offer inclusive digital experiences.

A Contested Assembly Bill and the Debate Surrounding It

A Divisive Piece of Legislation

California's AB 1757 has proven to be a highly contested piece of legislation since its introduction. While the bill aims to provide more specificity to existing digital accessibility laws, it has garnered both strong support and vehement opposition from various stakeholders.

Why is AB 1757 Controversial?

Legal Implications

One of the most significant points of contention is the bill's legal implications. AB 1757 would impose liability for statutory damages under the Unruh Civil Rights Act on not just business establishments but also website developers. This expansion of legal liability has raised concerns among small businesses and web developers who fear the potential for increased litigation.

WCAG 2.1 Level AA: A Double-Edged Sword

The bill adopts WCAG 2.1 Level AA as the de facto standard for websites and mobile apps from California. While this aligns with the DOJ's proposed rulemaking, critics argue that the bill offers no transition period for businesses to bring their websites into conformance. This lack of a grace period could place an undue burden on small businesses, who may lack the resources to comply immediately.

Subjectivity and Enforcement

Another point of debate is the bill's allowance for statutory damages based on subjective experiences. This opens the door for claims that are difficult to disprove, thereby increasing the risk of frivolous lawsuits.

National Implications

While the bill's jurisdiction is limited to California, its potential influence could extend beyond state lines. Given California's size and economic significance, legislation enacted here often serves as a roadmap for other states. Additionally, the DOJ's parallel efforts in proposed rulemaking could amplify the impact of AB 1757, making it a potential model for similar state and federal regulations.

A Bill Under Scrutiny

Given these various points of contention, it's clear that AB 1757 is a divisive piece of legislation. Its potential to reshape the digital accessibility landscape is significant, but the debates surrounding its impact are far from settled. As we continue to explore this complex issue, it's crucial to consider the perspectives of all stakeholders involved.

The Certification Dilemma in AB 1757

A Balanced Perspective: The Good and the Bad

While AB 1757 has several commendable features, such as holding service providers accountable for inaccessible websites and voiding disclaimers that seek to waive liability, it also introduces a problematic element: the focus on "Certification."

The Certification Challenge: A Nuanced Issue

The bill's emphasis on certification raises several concerns. First and foremost, there is currently no industry-standard, independently developed, and validated certification process for web accessibility. While the International Association of Accessibility Professionals (IAAP) offers certifications like Web Accessibility Specialist (WAS) and Certified Professional in Accessibility Core Competencies (CPACC), these are not universally adopted or validated through third-party review.

The Criteria for Certification: Ambiguous and Problematic

The bill stipulates that a website is presumed to provide equally effective communication if it has a certification that meets specific criteria. These criteria include design conformance to accessibility standards, testing by qualified users, and a statement from a "professional reviewer" explaining their qualifications. However, these requirements are fraught with issues:

  1. Limited Availability of Certified Professionals: The bill seems to favor a specific type of certification, of which there are fewer than 700 certified professionals worldwide.
  2. Questionable Level of Certification: The favored certification is considered mid-level and may not necessarily qualify someone to evaluate a website's accessibility in a legal context.
  3. Absence of Methodology: The bill fails to specify the criteria for certification, the mechanisms of measurement, or the methodology to determine if a website is certified.

Implications for Website Owners

Another point of concern is that the certification must be updated either within the prior 12 months or after any revisions to the website that impact accessibility. This stipulation essentially means that any certification becomes invalidated as soon as the website undergoes any modifications.

Adding Complexity Without Clarity

In summary, the certification language in AB 1757 introduces unnecessary complexity without offering practical solutions. The bill, currently held up in legislative committees, should either remove the certification requirements or address these significant issues when it is likely to be reintroduced.

The Upside of AB 1757

Standardization: The Cornerstone of Accessibility

One of the most compelling arguments in favor of AB 1757 is its push towards standardization. By adopting WCAG 2.1 Level AA as the de facto standard for websites and mobile apps from California, the bill aims to eliminate the guesswork for businesses. For example, a retail website that previously had to navigate a maze of guidelines could now have a single, comprehensive set of rules to follow. This standardization is seen as a crucial step in making the digital world more accessible to everyone, including people with disabilities.

Legal Clarity: Reducing the Ambiguity

The bill also seeks to provide much-needed legal clarity in an area that has been fraught with ambiguity. Supporters point out that the lack of clear guidelines has led to a surge in lawsuits, often targeting small businesses that are least equipped to defend themselves. By setting explicit criteria for what constitutes an accessible website, AB 1757 aims to reduce these lawsuits. For instance, a restaurant with an online menu would know exactly what standards it needs to meet to avoid litigation.

Accountability: A Multi-Faceted Approach

Another strong point in favor of the bill is its focus on accountability. By extending liability to website developers in addition to business owners, the bill ensures that everyone involved in the creation and maintenance of a website is held responsible for its accessibility. This could lead to a scenario where web development agencies include accessibility as a standard feature in their service offerings, rather than as an optional add-on.

A Catalyst for Change: The Incentive Factor

The bill's supporters view it as a catalyst that could accelerate the adoption of accessibility features across websites and mobile apps. By setting clear standards and imposing penalties for non-compliance, the bill creates a financial incentive for businesses to prioritize accessibility. For example, an e-commerce platform that makes its website accessible stands not only to reduce its legal risks but also to attract a broader customer base, including people with disabilities.

Economic Benefits: The Bigger Picture

While the bill's critics argue that it could impose financial burdens on small businesses, supporters take a longer-term view. They argue that the economic benefits of making websites accessible far outweigh the initial costs. For instance, a study by the American Institutes for Research found that the total after-tax disposable income for working-age people with disabilities is about $490 billion, which is similar to that of other significant consumer segments like African Americans and Hispanics.

Alignment with Federal Initiatives: A Harmonized Approach

Lastly, the bill's alignment with the Department of Justice's proposed rulemaking is seen as a significant advantage. This synchronicity could pave the way for a more unified approach to digital accessibility, making it easier for businesses that operate both within California and nationally to comply with regulations.

A Legislation with Potential and Promise

For its supporters, AB 1757 represents a significant advancement in the journey towards a more inclusive digital landscape. While acknowledging that the bill has areas that require refinement, they believe that its overarching benefits in standardizing guidelines, providing legal clarity, and incentivizing accessibility make it a legislation worth supporting.

The Future of AB 1757: A Legislation on the Horizon

The Current Landscape: A Bill Under Scrutiny

As we've explored, AB 1757 is a complex piece of legislation that has sparked a range of opinions. While it has its detractors, who point to issues such as the problematic focus on certification and potential financial burdens on small businesses, it also has a strong base of supporters. These proponents argue that the bill's emphasis on standardization, legal clarity, and accountability make it a significant step forward in the realm of digital accessibility.

The Momentum for Change: A Confluence of Factors

Several factors suggest that AB 1757 or a similar bill is highly likely to pass in California in the next year or two. First, there's a growing awareness of the importance of digital accessibility, not just as a legal requirement but as a moral imperative. This awareness is likely to put pressure on legislators to act.

Second, the bill's alignment with the Department of Justice's proposed rulemaking indicates a broader shift towards standardized digital accessibility guidelines at both the state and federal levels. This synchronicity could make it easier for a bill like AB 1757 to gain the legislative support it needs.

The Economic Argument: A Force to Reckon With

Moreover, the economic argument for digital accessibility is becoming increasingly compelling. As businesses recognize the untapped market potential of making their websites accessible to people with disabilities, the economic benefits of a bill like AB 1757 become more apparent2.

The Final Word: A Legislation Whose Time Has Come

In conclusion, while AB 1757 has its challenges and areas that require refinement, the momentum for such a bill is building. Given the growing awareness of digital accessibility issues, the alignment with federal initiatives, and the compelling economic arguments, it seems highly likely that AB 1757 or a similar piece of legislation will pass in California in the near future.

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