Proposed California Law on Website Accessibility Is Well-Intentioned but Misguided
California lawmakers are considering legislation, AB 1757, which would require any business in the state that operates a website or mobile app to meet certain accessibility standards. Any California business that fails to meet these standards would be subject to liability. While improving website accessibility is essential to ensure that people with disabilities can access services and information online, this legislation creates a conformance requirement that most businesses cannot meet and would open the door to a flood of expensive lawsuits.
AB 1757 would require that all California businesses with websites and apps conform to digital accessibility standards. Specifically, the law would require sites and apps to meet the requirements of the Web Content Accessibility Guidelines (WCAG) 2.1, a standard developed by the World Wide Web Consortium (W3C). WCAG 2.1 contains a set of best practices designed to enhance web usability and accessibility, such as providing text descriptions for non-text content, ensuring user interfaces can be navigated with a keyboard, explaining error messages, and avoiding content that can cause seizures. These guidelines thoroughly and thoughtfully consider the needs of individuals with disabilities, providing a useful global standard for designers and developers seeking to build accessible websites and apps. WCAG 2.1 has three levels of conformance (A, AA, and AAA), and this law would require websites and apps to conform to Level AA, the second-highest level. While WCAG 2.1 is indeed the current gold standard for accessibility, creating a law to require that all Californian businesses face liability for non-compliance would be a mistake for several reasons.
First, most businesses will find that achieving perfect compliance with the WCAG standard is nearly impossible. The problem is not that the guidelines themselves are inherently difficult or that building websites to meet the WCAG standard is too expensive—as a general matter, building an accessible website or app should cost the same as building a non-accessible one. The problem is that accessibility testing is expensive and achieving 100 percent compliance is unlikely when businesses constantly need to update their websites and apps. Even minor changes, such as posting a video without captions or a photograph without a text description, could make a website fail a conformity test. And while there are multiple tools to automatically check WCAG 2.1 conformity, these tools are not perfect and manual testing—which is expensive and time-consuming—is necessary to ensure complete compliance. Therefore, even a business that routinely strives to ensure its websites and apps are accessible could find itself out of compliance and face liability for any non-conformance.
Second, to reduce liability risks for failing to fully meet the WCAG 2.1 standard many businesses would likely shut down their websites and apps or reduce the amount of available content. For example, consider a restaurant that posts a photo to its website of its daily specials. Without additional text descriptions, the online photos would not be accessible to customers who are blind, and under the proposed law, the restaurant could face liability. Some restaurants might upgrade their website to make the daily specials accessible—indeed this would be the best outcome. However, the reality is that many would simply stop posting these daily updates to avoid the risk. Businesses will face this decision many times as they consider what content to post online. If the result of this proposed law is that businesses put less information online, that is a loss for accessibility.
Finally, some might think that AB 1757 is necessary to give people with disabilities the ability to take legal action against California businesses that fail to address online accessibility. But existing laws already provide this authority. The Americans With Disabilities Act (ADA) requires that businesses open to the public make their websites and apps accessible. In addition, the Unruh Civil Rights Act allows plaintiffs in California to obtain three times the amount of damages, plus attorney’s fees, for discrimination claims. Indeed website accessibility lawsuits make up a significant portion of disability lawsuits in the state. WCAG 2.1 offers an important set of best practices that businesses should strive to meet, but the ADA rightly does not impose strict conformance with the standard. Instead, plaintiffs in discrimination lawsuits use this standard as a benchmark for assessing the accessibility of websites and apps, but the specifics of what they do to address accessibility matter.
Improving web accessibility for people with disabilities is an important endeavor, and standards like WCAG 2.1 demonstrate how it can be done. But meeting these standards can be difficult, as countless government agencies which have failed to do so can attest. In addition, these standards are constantly evolving and locking in this standard will ultimately do more harm than good. Rather than threatening businesses with liability for non-conformance with what was intended to be a voluntary standard, lawmakers should focus on other efforts to improve accessibility online, such as teaching accessible design skills at public universities and educating businesses about the importance of accessible design.
