The California State Assembly is advancing new legislation with respect to website accessibility. For now, the proposed legislation is called Assembly Bill 1757 (“AB 1757”). On June 12, 2023, the Assembly’s Judiciary Committee advanced the AB 1757 out of committee with many important changes, including the addition of language that would require all California websites to follow Guidelines established by a private organization. These are generally called the “Web Content Accessibility Guidelines” (“WCAG”). There are three levels to the Guidelines, and AB 1757 would require conformity with WCAG version 2.1, Level AA. If enacted, AB 1757 would be the first time that conformity with the WCAG would be mandated by law. To date, the use of the WCAG has been voluntary (although the WCAG has been widely cited and used in website accessibility litigation).
AB 1757 amends California’s civil rights statute called the Unruh Act. Under AB 1757, a violation of website accessibility would be a violation of the Unruh Act and entitle a plaintiff to statutory damages and recovery of attorney’s fees. AB 1757 would also now subject web developers to liability if the websites created by them fail to conform to the WCAG.
The current version of AB 1757 DOES attempt to provide businesses some protection against litigation by creating a new kind of job called a “professional reviewer” and mandating a burden-shifting mechanism in some cases. A “professional reviewer” is defined as:
” … an expert in internet website design and accessibility who has a professional certificate in internet website accessibility issued by the World Wide Web Consortium (W3C), a certificate as a Certified Professional in Web Accessibility (CPWA) issued by the International Association of Accessibility Professionals (IAAP), or a certification issued by another source of professional training for front-end internet website developers with criteria for issuance that are equivalent to, or higher than, the requirements for the issuance of a CPWA certificate.”
AB 1757 provides that a website is presumed to be legally compliant and accessible if the website obtains a certification from a “professional reviewer” — every 12 months — that certifies that:
- The website is designed and intended to conform to the WCAG, ver. 2.1, Level AA standards
- The website has been tested, in both an automated manner and a manual manner by qualified users
- Based on testing, the website conforms to the WCAG, ver. 2.1, Level AA standards and
- That all third-party content available via a hyperlink ALSO fully conforms to the WCAG, ver. 2.1, Level AA standards
If a website owner has such a certification, then the burden-shifting mechanism is applied. If the certification is proven by the preponderance of the evidence, then the burden shifts to the plaintiff to prove, by clear and convincing evidence, that the website does NOT, in fact, comply with the standards required by AB 1757.
In its current form, AB 1757 does not mandate web accessibility standards for stand-only, internet-only businesses. Indeed, AB 1757 specifically states that it does not “… [r]esolve, or otherwise address, whether an internet website that is a standalone website-only business and not associated with a business that has a physical location in California is subject to liability under …” the Unruh Act. It is also unclear how AB 1757 would impact a case like Gomez v. Trinitas Cellars, LLC., Case No. 3:21-cv-09006 (US Dist. Court, N.D. California, June 17, 2022), where the court held that not every element and aspect of a website had to conform to web-accessibility standards.
Contact the Web Accessibility Attorneys at Revision Legal
For more information, contact the experienced Web Accessibility Lawyers at Revision Legal. You can contact us through the form on this page or call (855) 473-8474.
