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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:
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.
To understand the significance of AB 1757, it is necessary to understand the existing legal landscape in which California businesses have been operating. The Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., requires places of public accommodation to be accessible to individuals with disabilities. Federal courts and the Department of Justice have taken varying positions over the years on whether websites constitute “places of public accommodation” subject to the ADA, particularly for businesses with no physical location. The circuit courts are not uniform on this question, creating significant uncertainty for businesses.
California’s Unruh Civil Rights Act (Cal. Civ. Code § 51 et seq.) is broader than the ADA and provides that any violation of the ADA is also a violation of the Unruh Act. California courts have found websites to be subject to the Unruh Act, particularly where the website is connected to a physical location in California. The plaintiff’s bar has aggressively used the Unruh Act’s statutory damages provision — $4,000 per violation plus attorney’s fees — to file high volumes of website accessibility lawsuits. AB 1757, if enacted, would codify these obligations and introduce the WCAG 2.1 Level AA standard as the specific technical benchmark for compliance.
The Web Content Accessibility Guidelines (WCAG) are organized around four core principles: Perceivable, Operable, Understandable, and Robust (often abbreviated as POUR). WCAG 2.1 Level AA includes 50 specific success criteria across these four principles. Some of the most practically significant requirements for California businesses under Level AA include:
Achieving and maintaining WCAG 2.1 Level AA compliance is not a one-time project. Websites are living documents — new content, new features, third-party plugin updates, and platform changes can introduce new accessibility barriers at any time. AB 1757’s annual professional reviewer certification requirement reflects this reality: compliance must be maintained, not just achieved once.
If AB 1757 is enacted in its current or a similar form, California businesses face a significant expansion of litigation exposure. Under the existing Unruh Act framework, each visit to a non-accessible website by a disabled user can constitute a separate violation, each subject to the $4,000 statutory damages award. AB 1757 would add an express cause of action for website accessibility violations with a similar damages structure. Given that California has a well-established plaintiffs’ bar that has already filed thousands of website accessibility lawsuits under the current framework, the addition of a specific, codified WCAG standard would likely accelerate that litigation activity.
The professional reviewer certification defense is meaningful but not absolute. A business that obtains an annual professional reviewer certification — confirming that its website conforms to WCAG 2.1 Level AA — shifts the burden of proof to the plaintiff. The plaintiff must then prove by clear and convincing evidence that the website does not actually conform. This is a higher burden than the preponderance standard that normally applies in civil cases, and it provides genuine litigation protection for businesses that invest in compliance. Businesses that cannot produce a current, valid professional reviewer certification, however, are left with no structural defense to accessibility claims beyond arguing the merits of each individual alleged barrier.
Regardless of whether AB 1757 ultimately becomes law in its current form, California businesses with physical locations and associated websites are already exposed to Unruh Act and ADA website accessibility claims. The practical steps for risk reduction are the same under existing law as they would be under AB 1757:
Website accessibility litigation is an active and growing area of California law, and AB 1757 would significantly raise the stakes. The internet law attorneys at Revision Legal advise businesses on ADA and Unruh Act website accessibility compliance, defend accessibility lawsuits, and help clients implement legal defensibility strategies. Contact us through the form on this page or call (855) 473-8474.
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