(1)Existing law imposes liability upon a person who denies, aids or incites a denial, or makes any discrimination or distinction contrary to rights afforded by law, for actual damages suffered, exemplary damages, a civil penalty, and attorneys fees, as specified, to any person who was denied the specified rights. Existing law also imposes liability upon a person, firm, or corporation that denies or interferes with admittance to or enjoyment of public facilities or otherwise interferes with the rights of an individual with a disability, as specified, for damages and attorneys fees to a person who was denied those rights. Existing law establishes in state government the California Commission on Disability Access, which is required to provide information regarding preventing or minimizing problems of compliance by California businesses by providing educational services, including outreach efforts, and by preparing and hosting on its internet website a Guide to Compliance with State Laws and Regulations Regarding Disability Access Requirements.

This bill would specify that statutory damages based upon the inaccessibility of an internet website under these provisions shall only be recovered against an entity, as defined, if the internet website fails to provide equally effective communication or facilitate full and equal enjoyment of the entitys goods and services to all members of the public. The bill would require, in order for a plaintiff to be entitled to statutory damages for internet website inaccessibility, the plaintiff to prove either that they personally encountered a barrier that caused them to experience a difference in their access to, or use of, the website as compared to other users, as specified, or that they were deterred from accessing all or part of the internet website or the content of the website because of the websites failure to provide equally effective communication or to facilitate full and equal enjoyment of the entitys goods and services offered to the public. The bill would specify that an internet website is presumed to provide equally effective communication for the purpose of determining whether an award of minimum statutory damages is warranted, as specified, if the internet website website, taking into account the variety of conforming implementations that may be used to meet the internet website-related accessibility standard, complies with an internet website-related accessibility standard, as defined. The bill would require the California Commission on Disability Access to review those standards described in the definition of internet website-related accessibility standard to determine whether they are the most up-to-date standards for effective communication by means of internet websites, and to notify the Legislature if they are not up to date and should be revised.

This bill would make it unlawful for any resource service provider, in exchange for remuneration, to intentionally or knowingly construct, license, distribute, or maintain for online use, an internet website that fails to comply with the internet website-related accessibility standard. The bill would authorize a civil action by a person who is unable to obtain equally effective communication or full and equal enjoyment of an internet website, the content of an internet website, or goods and services offered to the public on an internet website, as a result of the failure of an internet website to meet the internet website-related accessibility standard, with remedies as prescribed. The bill would further authorize a civil action by a person or entity that pays, compensates, or contracts with an internet website a resource service provider to construct, license, distribute, or maintain an internet website for the purpose of providing equally effective communication or facilitating full and equal enjoyment of the person or entitys goods and services to all members of the public, including any member of the public who is disabled, with remedies as prescribed. The bill would also authorize the Attorney General or a district attorney, county counsel, or city attorney to bring an action to obtain injunctive or declaratory relief and attorneys fees and costs. The bill would provide that a provision within a contract between a person or entity and an internet website a resource service provider that seeks to waive liability under these provisions is subject to specified provisions of the Ralph Civil Rights Act of 1976 relating to waiver of rights.

(2)Existing law requires each city, county, or city and county that issues business licenses, building permits for additions, alterations, and structural repairs to commercial property, or building permits for new construction of commercial property to make available, and, upon receipt of an application for a business license or building permit to provide to the applicant, an informational notice to the applicant containing, among other things, general information about the compliance requirements pursuant to the federal Americans with Disabilities Act of 1990 and the states disability access laws and advisories to both building permit applicants and business license applicants encouraging consultations and inspections by certified access specialists.

This bill would also require the information about the compliance requirements pursuant to the states disability access laws to include a statement that a business internet website is required to be accessible, and to provide equally effective communication or facilitate full and equal enjoyment of the entitys goods and services, to the public, including any member of the public who is disabled. The bill would require the advisories to encourage applicants to include in specified contracts warranty and indemnification clauses relating to accessibility standards and to consider not working with individuals or organizations unwilling to warranty their work and to indemnify the applicant for judgements rendered against them for violating website-related accessibility standards. By imposing new requirements on local government agencies, the bill would create a state-mandated local program. The bill would also make other conforming changes.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

(1)Existing law imposes liability upon a person who denies, aids or incites a denial, or makes any discrimination or distinction contrary to rights afforded by law, for actual damages suffered, exemplary damages, a civil penalty, and attorneys fees, as specified, to any person who was denied the specified rights. Existing law also imposes liability upon a person, firm, or corporation that denies or interferes with admittance to or enjoyment of public facilities or otherwise interferes with the rights of an individual with a disability, as specified, for damages and attorneys fees to a person who was denied those rights. Existing law establishes in state government the California Commission on Disability Access, which is required to provide information regarding preventing or minimizing problems of compliance by California businesses by providing educational services, including outreach efforts, and by preparing and hosting on its internet website a Guide to Compliance with State Laws and Regulations Regarding Disability Access Requirements.

This bill would specify that statutory damages based upon the inaccessibility of an internet website under these provisions shall only be recovered against an entity, as defined, if the internet website fails to provide equally effective communication or facilitate full and equal enjoyment of the entitys goods and services to all members of the public. The bill would, would require, in order for a plaintiff to be entitled to statutory damages for internet website inaccessibility, require the plaintiff to prove either that they personally encountered a barrier that interfered with their ability to access all or part of the entitys internet website and that caused them to experience a difference in their access to, or use of, the website as compared to other users such that they were unable to acquire the same information, engage in the same interaction, or enjoy the same services with substantially equivalent ease of use, or have the same level of privacy and independence as other users who are not disabled, users, as specified, or that they were deterred from accessing all or part of the internet website or the content of the website because of the websites failure to provide equally effective communication or to facilitate full and equal enjoyment of the entitys goods and services offered to all members of the public. The bill would specify that an internet website is presumed to provide equally effective communication for the purpose of determining whether an award of minimum statutory damages, damages is warranted, as specified, if the internet website complies with specified standards for the accessibility of an internet website established by the World Wide Web Consortium (W3C) Accessibility Guidelines Working Group. an internet website-related accessibility standard, as defined. The bill would require the California Commission on Disability Access to review those standards to determine whether they are the most up-to-date standards for effective communication by means of internet websites, and to notify the Legislature if they are not up to date and should be revised.

(2)Existing law requires each city, county, or city and county that issues business licenses, building permits for additions, alterations, and structural repairs to commercial property, or building permits for new construction of commercial property to make available, and, upon receipt of an application for a business license or building permit to provide to the applicant, an informational notice to the applicant containing, among other things, general information about the compliance requirements pursuant to the federal Americans with Disabilities Act of 1990 and the states disability access laws. laws and advisories to both building permit applicants and business license applicants encouraging consultations and inspections by certified access specialists.

This bill would also require the information about the compliance requirements pursuant to the states disability access laws to include a statement that a business internet website is required to be accessible, and to provide equally effective communication or facilitate full and equal enjoyment of the entitys goods and services, to the public, including any member of the public who is disabled. The bill would require the advisories to encourage applicants to include in specified contracts warranty and indemnification clauses relating to accessibility standards and to consider not working with individuals or organizations unwilling to warranty their work and to indemnify the applicant for judgements rendered against them for violating website-related accessibility standards. By imposing new requirements on local government agencies, the bill would create a state-mandated local program. The bill would also make other conforming changes.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

(1)Existing law imposes liability upon a person who denies, aids or incites a denial, or makes any discrimination or distinction contrary to rights afforded by law, for actual damages suffered, exemplary damages, a civil penalty, and attorneys fees, as specified, to any person who was denied the specified rights. Existing law also imposes liability upon a person, firm, or corporation that denies or interferes with admittance to or enjoyment of public facilities or otherwise interferes with the rights of an individual with a disability, as specified, for damages and attorneys fees to a person who was denied those rights. Existing law establishes in state government the California Commission on Disability Access, which is required to provide information regarding preventing or minimizing problems of compliance by California businesses by providing educational services, including outreach efforts, and by preparing and hosting on its internet website a Guide to Compliance with State Laws and Regulations Regarding Disability Access Requirements.

This bill would specify that statutory damages based upon the inaccessibility of internet website under these provisions shall only be recovered against an entity, as defined, if the internet website fails to provide equally effective communication or facilitate full and equal enjoyment of the entitys goods and services to the public. The bill would, in order for a plaintiff to be entitled to statutory damages for internet website inaccessibility, require the plaintiff to prove that they personally encountered a barrier that interfered with their ability to access all or part of the entitys internet website and that caused them to experience a difference in their access to, or use of, the website as compared to other users such that they were unable to acquire the same information, engage in the same interaction, or enjoy the same services with substantially equivalent ease of use, or have the same level of privacy and independence as other users who are not disabled, or that they were deterred from accessing all or part of the internet website because of the websites failure to provide equally effective communication or to facilitate full and equal enjoyment of the entitys goods and services to all members of the public. The bill would specify that an internet website is presumed to provide equally effective communication for the purpose of an award of minimum statutory damages, as specified, if the internet website complies with specified standards for the accessibility of an internet website established by the World Wide Web Consortium (W3C) Accessibility Guidelines Working Group. The bill would require the California Commission on Disability Access to review those standards to determine whether they are the most up-to-date standards for effective communication by means of internet websites, and to notify the Legislature if they are not up to date and should be revised.

(2)Existing law requires each city, county, or city and county that issues business licenses, building permits for additions, alterations, and structural repairs to commercial property, or building permits for new construction of commercial property to make available, and, upon receipt of an application for a business license or building permit to provide to the applicant, an informational notice to the applicant containing, among other things, general information about the compliance requirements pursuant to the federal Americans with Disabilities Act of 1990 and the states disability access laws.

This bill would also require the information about the compliance requirements pursuant to the states disability access laws to include a statement that a business internet website is required to be accessible, and to provide equally effective communication or facilitate full and equal enjoyment of the entitys 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. The bill would also make other conforming changes.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Date of Hearing: May 10, 2023

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Chris Holden, Chair

ABPCA Bill Id:AB 950

Author:(Maienschein) – As Amended Ver:April 26, 2023

Urgency: No State Mandated Local Program: Yes Reimbursable: Yes

SUMMARY:

This bill creates a presumption in state law that if a website of a business entity meets a specified standard, the business entity complies with state accessibility requirements and therefore is not liable for damages. The bill also creates a civil cause of action that allows private individuals and public prosecutors to sue a service provider for intentionally or knowingly creating or maintaining an internet website that does not meet accessibility requirements.

Specifically, this bill:

1. Limits statutory damages under the Unruh Civil Rights Act (Unruh) and the Disabled Persons Act (DPA) for inaccessibility of an entity’s internet website to circumstances in which the internet website fails to provide equally effective communication or facilitate full and equal enjoyment of the entity’s goods and services to all members of the public, including any member of the public who is disabled.
2. States that to be entitled to statutory damages for internet website inaccessibility, a plaintiff must prove one of the following:
   1. That the plaintiff personally encountered a barrier that caused the plaintiff to experience a difference in their ability to access or use the website as compared to other users such that the plaintiff was unable to use the website in the same way as other users who are not disabled.
   2. That the plaintiff was deterred from accessing all or part of the website or the content of the website because it failed to provide equally effective communication or facilitate full and equal enjoyment of the entity’s goods and services offered to the public.
3. Establishes, for the purposes of determining statutory damages, that an internet website is presumed to comply with accessibility requirements if the internet website complies with the internet website-related accessibility standard established in the bill.
4. States that it is unlawful for any resource service provider to intentionally or knowingly construct, license, distribute, or maintain for online use, an internet website that fails to comply with the internet website-related accessibility standard, and allows specified private individuals and public prosecutors to bring civil actions to enforce this prohibition.
5. Requires that each city, county, or city and county that issues business licenses and specified building permits shall make readily available and provide to applicants an informational notice to the applicant containing specified information, including an advisory pertaining to internet website accessibility liability.
6. Requires the Commission on Disability Access to, at a frequency determined by the commission, review the existing statutory standards to determine whether they are the most up-to-date standards for effective communication by means of an internet website and notify the Legislature of its determination.

FISCAL EFFECT:

1. Costs (Trial Court Trust Fund, General Fund) to the courts to adjudicate cases brought under the new private right of action created by this bill. One eight-hour day of court time has an estimated cost of $8,000. If 50 plaintiffs or public prosecutors bring suits under this bill and each lawsuit take two days of court time to resolve, the resulting cost would be $800,000. Although courts are not funded on the basis of workload, increased pressure on the Trial Court Trust Fund may create a need for increased funding for courts from the General Fund. If funding is not provided for the new workload created by this bill, it may result in delays and prioritization of court cases.
2. Costs (General Fund) of an unknown amount to the Department of Justice (DOJ) to the extent that DOJ seeks to enforce civil violations by service providers who intentionally create internet websites that fail to comply with accessibility standards. Actual costs will depend on whether DOJ seeks to enforce these violations and how many lawsuits it files.
3. Costs (local funds, General Fund) of an unknown amount to municipalities. This bill requires certain municipalities to provide applicants for business licenses and building permits with information about internet website accessibility requirements and liability. General Fund costs will depend on whether the duties imposed by this bill constitute a reimbursable state mandate, as determined by the Commission on State Mandates. Local costs may not be reimbursable by the state if municipalities can generally levy fees to cover these costs.
4. Costs (General Fund) of an unknown but potentially significant amount to the Commission on Disability Access to conduct the statutory review required by this bill.

COMMENTS:

1. Author’s Statement. According to the author:

AB 950 would help address internet website accessibility for persons with disabilities by creating presumption in state law that if the website of a business meets WCAG standards developed by the World Wide Web Consortium (W3C), it complies with California’s Unruh Civil Rights Act and Disabled Persons Act. By creating this rebuttable presumption, the bill would reduce litigation over whether business’ websites are ADA compliant.

The bill would also require municipalities to notify businesses of the obligation to make their websites accessible to people with disabilities when issuing business licenses or building permits. By extending notice to businesses about their ADA responsibilities, AB 950 would benefit businesses by informing them if their ADA responsibilities before they create websites that may fail to meet the WCAG standard. By providing appropriate liability protections for ensuring accessible websites and providing a clear standard for being in compliance, AB 950 would result in greater accessibility of websites through the state.

1. Background. This bill makes several changes in the law that are designed to improve the accessibility of the internet websites of California businesses and deter litigation regarding the accessibility of such websites. Although the bill creates a new civil cause of action, the long-term goal of these measures is to ensure that businesses create internet websites that are accessible to the public, reduce uncertainty about the standards of accessibility that is required by law, and limit future litigation by providing notices to businesses about their obligations to create an accessible internet website.
2. Related Legislation. AB 1404 (Wendy Carrillo) requires a plaintiff who serves lawsuits alleging inaccessibility of an internet website to also provide the defendant a standard notice about the defendant’s rights and obligations regarding internet website accessibility. The requirements in AB 1404 are contingent on enactment of AB 950. AB 1404 is currently pending in this committee.

Analysis Prepared by: Annika Carlson / APPR. / (916) 319-2081

Date of Hearing: April 25, 2023

ASSEMBLY COMMITTEE ON JUDICIARY

Brian Maienschein, Chair

ABPCA Bill Id:AB 950

Author:(Maienschein) – As Amended Ver:April 18, 2023

PROPOSED CONSENT (As Proposed to be Amended)

SUBJECT: Accessibility: internet websites

KEY ISSUES:

1. Should there be a presumption in the law that if aN internet website complies with a specified standard for accessibility, that the business with the website is not liable for damages in a website accessiblity civil action?
2. should a website designer who intentionally or knowingly constructs an inaccessible website for a business be liable to the business for any damages and attorney’s fees that the business must pay to members of the public who are denied full access to the website?

SYNOPSIS

Under the more than 30 year-old federal Americans with Disabilities Act (ADA), a business that constitutes a place of public accommodation (e.g., many places of lodging, entertainment, recreation, restaurants, bars, theaters, stores, health clubs, etc.) is prohibited from discriminating on the basis of disability if its operations affect interstate commerce. According to both federal courts and federal regulations, the ADA also applies to the websites and apps of public accommodations. The U.S. Department of Justice (DOJ) issued a notice of proposed rulemaking to establish a compliance standard for website accessibility in 2010, but the Trump Administration withdrew the proposed rulemaking in 2017. This lack of a specific standard for website compliance has created uncertainty among both businesses and the public and commonly is blamed for the recent spike in litigation about website accessibility. As with construction related accessibility claims, a few litigious attorneys are abusing the ADA to sue small businesses that may not understand either their obligations to make their internet websites accessible to the public, how to make them accessible, and how and why they may not be liable for paying damages if they took their cases to trial.

This bill does four things to improve the accessibility of the internet websites of California businesses and to deter litigation regarding the accessibility of such websites. First, and most important, it creates a presumption in state law that a website of a business entity that meets a specified standard (WCAG 2.1 Level AA) complies with state accessibility requirements and therefore is not liable for damages. The WCAG 2.1 Level AA was published in 2018, and has been adopted by the State of California as the compliance standard for state websites for the past five years. Second, it allows a person who is denied access to a website to bring a cause of action against a person who intentionally or knowingly builds an inaccessible website; allows a business that hires such a website designer to recover any statutory damages and attorney’s fees paid to website users; and allows public prosecutors to enforce the law by obtaining injunctive relief. Third, the bill requires the advisory that businesses obtain when applying for building permits and business licenses to encourage businesses to obtain warranties and indemnification agreements from companies that design their websites. Fourth and finally, the bill requires the California Commission on Disability Access (CCDA) to advise the Legislature when the WCAG standard is updated. The author proposes minor clarifying amendments that are incorporated into the summary of the bill, below, and explained in the analysis. The bill, which is author-sponsored, is supported by Disability Rights California. A number of business groups would support the bill as it is proposed to be amended. The bill has no opposition on file.

SUMMARY: Among other things, creates a presumption in state law that a website of a business entity that meets a specified standard (WCAG 2.1 Level AA) complies with state accessibility requirements and therefore is not liable for damages; and allows certain civil actions, including by allowing businesses to recover statutory damages and attorney’s fees they must pay when their internet websites are inaccessible. Specifically, this bill:

1. Provides that statutory damages under the Unruh Civil Rights Act (Unruh) and the Disabled Persons Act (DPA) shall only be recovered against an entity based upon the inaccessibility of an internet website developed, procured, maintained, or used by that entity if the internet website fails to provide equally effective communication or facilitate full and equal enjoyment of the entity’s goods and services to all members of the public, including any member of the public who is disabled.
2. States that to be entitled to statutory damages for internet website inaccessibility, a plaintiff must prove one of the following:
   1. That the plaintiff personally encountered a barrier that caused the plaintiff to experience a difference in their ability to access or use the website as compared to other users such that the plaintiff was unable to acquire the same information, engage in the same interactions, or enjoy the same services with substantially equivalent ease of use, or to have the same level of privacy and independence as other users who are not disabled.
   2. That the plaintiff was deterred from accessing all or part of the website or the content 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 offered to the public.
3. Establishes that an internet website is presumed to provide equally effective communication for the purpose of determining whether an award of minimum statutory damages, is warranted under Unruh or the DPA, if the internet website, taking into account the variety of conforming implementations that may be used to meet the internet website-related accessibility standard, complies with the internet website-related accessibility standard established in the bill.
4. Provides that the presumption set forth in 3), above, affects the plaintiff’s burden of proof. Upon the defendant establishing by a preponderance of the evidence that the internet website complies with the website-related accessibility standard, the plaintiff may rebut the presumption with clear and convincing evidence, showing that, notwithstanding the internet website’s compliance with the standard, the elements of one of the violations set forth in 2), above, are established.
5. Clarifies that the above provisions are not intended to do any of the following:
   1. Limit the rights and remedies available to disabled persons under federal law, or any other state law.
   2. Affect whether an entity is responsible under either Section 51 or 51.5 for making its premises accessible to all members of the public, including the disabled and including by means of accessing and using the entity’s internet website.
   3. Resolve, 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 Sections 51, 54, and 54.1.
6. States that the above provisions apply to any civil action filed on or after January 1, 2024.
7. States that it is unlawful for any resource service provider, in exchange for money or any other form of remuneration, to intentionally or knowingly construct, license, distribute, or maintain for online use, an internet website that fails to comply with the internet website-related accessibility standard.
8. Allows the following parties to bring a civil action pursuant to 7):
   1. A person who is unable to obtain equally effective communication or full and equal enjoyment of an internet website, the content of an internet website, or goods and services offered to the public on an internet website, as a result of the failure of an internet website to meet the internet website-related accessibility standard. Specifies that the remedies for such a violation are the same as those provided under Unruh and the DPA.
   2. A person or entity that pays, compensates, or contracts with, the internet website resource service provider to construct, license, distribute, or maintain an internet website for the purpose of providing equally effective communication or facilitating full and equal enjoyment of the person or entity’s goods and services to all members of the public, including any member of the public who is disabled. A party who prevails under this paragraph shall be entitled to collect all damages, including, but not limited to, any statutory damages and attorney’s fees paid by the person or entity as a result of a lawsuit against the person or entity pursuant to Sections 51, 54, and 54.1, based upon the inaccessibility of the person or entity’s website, and all costs of bringing their internet website into compliance with the internet website-related accessibility standard.
   3. The Attorney General or a district attorney, county counsel, or city attorney may bring an action under this section to obtain the following: injunctive or declaratory relief; attorney’s fees and costs.
9. Establishes that a provision within a contract between a person or entity and a resource service provider that seeks to waive liability under 7) is subject to being declared void pursuant to existing law (subdivision (c) of Section 51.7 of the Civil Code).
10. Clarifies that 7) – 9), above, do not limit or alter the application of other laws, including, but not limited to, Civil Code Sections 51, 54, and 54.1, or the ability of a plaintiff to bring a civil action under any other theory of the law, including, but not limited to, breach of contract, implied warranty of merchantability, or false or deceptive advertising.
11. For purposes of the above, defines the following terms:
12. “Entity” means a business establishment that is open to the public, a public place, or a place of public accommodation.
13. “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.
14. “Internet website-related accessibility standard” means the Web Content Accessibility Guidelines (WCAG) 2.1 Level AA standard for the accessibility of internet websites established by the World Wide Web Consortium (W3C) Accessibility Guidelines Working Group on June 5, 2018, or the accessibility standards for Section 508 of the federal Rehabilitation Act of 1973 (29 U.S.C. Sec. 794d) in Part 1194 of Title 36 of the Code of Federal Regulations. To the extent that there is an overlap between the applicable standards for internet websites under WCAG 2.1 and standards for information or communication technology under Section 508 of the federal Rehabilitation Act of 1973, the more recent WCAG 2.1 standard shall apply. Any subsequent more stringent update, revision, or replacement to either standard adopted by any final rule of the U.S. Access Board shall apply to this section.
15. “Resource service provider” means a person or entity that, in exchange for money or any other form of remuneration, constructs, licenses, distributes, or maintains for online use any internet website or resource to be used within or in conjunction with an internet website.
16. Requires that each city, county, or city and county that issues business licenses, building permits for additions, alterations, and structural repairs to commercial property, or building permits for new construction of commercial property, shall make readily available, and, upon submission to the city, county, or city and county of an application for a business license or building permit, shall provide to the applicant, an informational notice to the applicant containing specified information, including an advisory to the applicant for a building permit that strongly encourages the applicant to do the following:

Include warranty and indemnification clauses in contracts with companies that provide internet website accessibility resources and services and consider not working with individuals or organizations who are unwilling to warranty that their work meets all applicable accessibility standards and to indemnify the business for a judgment rendered against the business for violating website-related accessibility standards.

1. Requires the Commission on Disability Access to, at a frequency determined by the commission, review the standards established pursuant to paragraph (1) of subdivision (c) of Section 55.565 of the Civil Code to determine whether they are the most up-to-date standards for effective communication by means of an internet website and, within 30 days of determining that the standards are not up to date and should be revised, notify the Speaker of the Assembly and President pro Tempore of the Senate and the Chairs of the Assembly and Senate Committees on Judiciary, of its determination.

EXISTING LAW:

1. Pursuant to federal law, under the Americans with Disabilities Act (ADA), provides that no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases, or leases to, or operates a place of public accommodation. (42 U.S.C. Section 12182.)
2. Pursuant to Section 508 of the federal Rehabilitation Act, all federal agencies, when they develop, procure, maintain, or use electronic and information technology, must give disabled employees and members of the public access to information that is comparable to access available to others. (29 U.S.C. 794 d.)
3. Holds, pursuant to case law, that the websites and apps of businesses that are public places or places of public accommodation are governed by the ADA, which "applies to the services of a place of public accommodation, not services in a place of public accommodation." (Nat'l Fed'n of the Blind v. Target Corp. (N.D. Cal. 2006) 452 F. Supp. 2d 946, 953.)
4. Pursuant to the Unruh Civil Rights Act (Unruh), provides that all persons, regardless of sex, race, color, religion, ancestry, national origin, disability or medical condition, are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind; makes a violation of the ADA also constitutes a violation of Unruh; and subjects a person or entity in violation to actual damages incurred by an injured party, treble actual damages but not less than $4,000, and any attorney’s fees as the court may determine to be proper. (Civil Code Section 51 et seq. All further statutory references are to the California Civil Code, unless otherwise indicated.)
5. Provides, pursuant to the Disabled Persons Act (DPA), that individuals with disabilities or medical conditions have the same right as the general public to the full and free use of the streets, highways, sidewalks, walkways, public buildings, medical facilities, including hospitals, clinics and physicians’ offices, public facilities and other public places, and also provides that a violation of an individual’s rights under the ADA constitutes a violation of state law. (Section 54.)
6. Provides that individuals with disabilities shall be entitled to full and equal access to public accommodations, subject only to the conditions and limitations established by law, or state or federal regulation, and applicable alike to all persons. (Section 54.1.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: This bill makes several changes in the law that are designed to improve the accessibility of the internet websites of California businesses and to deter litigation regarding the accessibility of such websites. According to the author:

AB 950 would help address internet website accessibility for persons with disabilities by creating presumption in state law that if the website of a business meets WCAG standards developed by the World Wide Web Consortium (W3C), it complies with California’s Unruh Civil Rights Act and Disabled Persons Act. By creating this rebuttable presumption, the bill would reduce litigation over whether business’ websites are ADA compliant.

The bill would also require municipalities to notify businesses of the obligation to make their websites accessible to people with disabilities when issuing business licenses or building permits. By extending notice to businesses about their ADA responsibilities, AB 950 would benefit businesses by informing them if their ADA responsibilities before they create websites that may fail to meet the WCAG standard.

By providing appropriate liability protections for ensuring accessible websites and providing a clear standard for being in compliance, AB 950 would result in greater accessibility of websites through the state.

Background – Federal ADA and State Civil Rights Laws Protect the Ability of All Persons to Access Public Accommodations. Under the more than 30 year-old federal Americans with Disabilities Act (ADA), a business that constitutes a place of public accommodation (e.g., many places of lodging, entertainment, recreation, restaurants, bars, theaters, stores, health clubs, etc.) is prohibited from discriminating on the basis of disability if its operations affect interstate commerce. Prohibited discrimination can take a number of forms – e.g., denial of participation in the facility, or a service, benefit, or good of the business; denial of equal participation in a good, service, or facility; or provision of a different or separate facility, service or good (unless necessary to provide services and the like that are as effective as that provided to others). Government facilities are also covered by the access obligations of the ADA.

According to the California Supreme Court, “In 1992, shortly after passage of the ADA, the Legislature amended the state's disability protections ‘to strengthen California law in areas where it is weaker than the [ADA] and to retain California law when it provides more protection for individuals with disabilities than the [ADA].’ Two overlapping laws, the Unruh Civil Rights Act (§ 51) and the Disabled Persons Act (§§ 54–55.3), are the principal sources of state disability access protection.” (Jankey v. Lee (2012) 55 Cal.4th 1038, 1044 [Citation to internal quotation deleted].) As a result of incorporating the ADA into the state’s Unruh Civil Rights, a plaintiff who prevails in a construction-related accessibility claim, like all plaintiffs in other civil rights cases, is entitled to minimum statutory damages of $4,000 per violation.

Therefore, since 1992, public accommodations in California have been required to comply with not only the ADA, but also with the state’s Unruh Act (Unruh) and Disabled Persons Act (DPA), which incorporate the ADA into their provisions and make a violation of the ADA punishable as a violation of Unruh and the DPA. (Sections 51, 54.) All persons who violate the DPA are liable for the actual damages and an amount determined by a jury, or the court sitting without a jury, up to a maximum of three times the actual damages (there is a minimum fine of $1,000) and attorney’s fees. While most violations of Unruh are subject to statutory damages of at least $4,000 per violation, for some construction-related accessibility claims lower damages (a minimum of $1,000 or $2,000, depending on the circumstances of the case) apply.

U.S. Department of Justice Regulations Regarding Website Accessibility, Including Proposed (and Later Abandoned) Specific Accessibility Compliance Standards. The United States Department of Justice (DOJ) is the agency responsible for enforcing federal civil rights laws, including the ADA. In that capacity, DOJ has promulgated regulations and technical advice to businesses that are public places and places of public accommodation about how to comply with the ADA. For example, DOJ regulations require that a public accommodation, in its communications to the public, “furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.” (28 C.F.R. 36.303(c)(1) (emphasis added); see Bragdon v. Abbott (1998) 524 U.S. 624, 646 [holding that DOJ's administrative guidance on ADA compliance is entitled to deference].)

DOJ has adopted regulations to define “auxiliary aids and services” to include “accessible electronic and information technology” or “other effective methods of making visually delivered materials available to individuals who are blind or have low vision” in 28 C.F.R. 36.303(b)(2). (Robles v. Domino's Pizza, LLC (9th Cir. 2019) 913 F.3d 898, 904-905.) And DOJ has repeatedly affirmed the application of the ADA to the websites and apps of public accommodations. (See 75 Fed. Reg. 43460-01, 43464 (July 26, 2010); Robles, supra, 913 F.3d at pp. 906-907.) Thus, the Ninth Circuit Court of Appeals has held that the ADA applies to a restaurant’s website and app, which connect customers to the goods and services of the restaurants. (Robles, supra, at pp. 905 – 06.)

However, DOJ has not adopted a regulation setting a standard for what specifically the ADA requires businesses to do in order to make their websites accessible. (See Robles, supra, at p. 908.) Although DOJ issued a notice of proposed rulemaking to establish such a standard in 2010 (75 Fed. Reg. 43460-01 (July 26, 2010)), the Trump Administration withdrew the proposed rulemaking in 2017 (82 Fed. Reg. 60932-01 (Dec. 26, 2017)). While this lack of a specific standard for website compliance does not violate the due process rights of businesses or make the ADA unenforceable given that “[c]ourts are perfectly capable of interpreting the meaning of ‘equal’ and ‘effective’” (Robles, supra, at p. 911), it does create uncertainty among both businesses and the public; also, the lack of a specific standard may be related to a recent reported increase in litigation, or at least threatened litigation, regarding the accessibility of websites.

WCAG Standards, Including Versions and Levels of Compliance. In the absence of a specific standard for website compliance, courts and government entities sometimes rely on private standards developed by technology and accessibility experts, including the World Wide Web Consortium (W3C), the main international standards organization for the Internet. As part of their Web Accessibility Initiative, W3C has promulgated a series of web accessibility guidelines, including the Web Content Accessibility Guidelines (WCAG). WCAG standards are a set of recommendations for making Web content more accessible, particularly for people with disabilities. The first set of accessibility guidelines, called WCAG 1.0 became a W3C recommendation in May of 1999. The guidelines have been updated since then. WCAG 2.0 was published in December 2008 and became an ISO standard in October 2012. WCAG 2.1 became a W3C Recommendation in June of 2018. WCAG 2.2 is in the process of being developed and could be released this year.

WCAG 2.1 retains WCAG 2.0 in its entirety, but adds 17 additional success criteria to the 2.0 standard. The new success criteria are intended to address viewing of content on mobile devices and provide additional success criteria to improve the experience of individuals with low vision and cognitive impairments. W3C’s overview of the additional success criteria in version 2.1 can be accessed at the WCAG website: https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/. Regarding the level of compliance within each version of the standard, “Level A is a subset of Level AA. There are 25 criteria that you have to meet to reach Level A. To reach Level AA you have to meet 13 more criteria in addition to the 25 for Level A.” (https://myaccessible.website/blog/wcaglevels/wcag-levels-a-aa-aaa-difference.)

Courts and government entities have relied upon WCAG standards in addressing accessibility issues and compliance, particularly in settlement agreements and consent decrees. For example:

• In 2013, DOJ entered into a settlement agreement with Louisiana Tech University that encompassed not only the University’s website, but also all electronic and information technology, instructional materials and online courses. (See Settlement Agreement with Louisiana Tech University, DJ #204-33-116 (July 22, 2013), available at https://www.ada.gov/louisiana-tech.htm.)
• In 2014, the National Federal of the Blind and DOJ entered into a consent decree with HRB Digital LLC and HRB Tax Group, Inc., agreeing that H&R Block’s website and apps would comply with the WCAG 2.0 AA standards by January 1, 2016. (National Federation of the Blind, et al v. HRB Digital LLC and HRB Tax Group, Inc., Civil Action No. 1:13-cv-10799-GAO, United States District Court for the State of Massachusetts, Boston Division, Consent Decree – available at https://www.ada.gov/hrb-cd.htm.)
• In August of 2016, DOJ notified the University of California, Berkeley, that large segments of its free, publicly available audio and video content (including its YouTube channel, iTunes U platform, and Open Online Courses) were not accessible to individuals with hearing, vision, or manual disabilities. The letter observed that, “While the University of California’s Information Technology Accessibility Policy adopts the WCAG 2.0 AA technical standard, which provides clear parameters for ensuring online content is accessible to individuals with disabilities, UC Berkeley has not ensured compliance with its policy.” (See Letter dated August 30, 2016 to University of California, Berkeley, available at https://www.ada.gov/briefs/uc_berkley_lof.pdf.)
• In November of 2018, the National Federation of the Blind announced a settlement agreement with Alameda County, California, in which the county agreed to utilize WCAG 2.1 AA in making its election website accessible. (See https://www.nfb.org/about-us/press-room/alameda-county-will-make-voting-more-accessible-blind.)
• In January of 2019, the Ninth Circuit Court of Appeals observed in Robles that “the district court can order compliance with WCAG 2.0 as an equitable remedy if, after discovery, the website and app fail to satisfy the ADA.” (Robles, supra, 913 F.3d at p. 907.)

The State of California has complied with the website accessibility standard for website accessibility established by the bill for the past five years. The State of California uses WCAG 2.1 AA as the benchmark for its agencies to make their internet websites accessible. State law—specifically Government Code Section 11135--requires that all electronic and information technology developed or purchased by the State of California Government is accessible to people with disabilities. Since 2019, state law has required the director of each state agency or entity and the chief information officer of that state agency or entity to biannually post on the home page of the agency’s or entity’s Internet Web site a signed certification that the agency’s or entity’s Internet Web site is in compliance with specified accessibility standards. The original law required state websites to comply with “the Web Content Accessibility Guidelines 2.0, or a subsequent version, published by the Web Accessibility Initiative of the World Wide Web Consortium at a minimum Level AA success criteria.” (Gov. Code 11546.7 (a.).) Given the adoption of WCAG 2.1 AA in 2018, the state now complies with that standard.

The website of the California Department of Rehabilitation (CDR) contains a Website Accessibility Certification (Web_Accessibility_Cert_DOR_posted_July_2021.docx (live.com)), as well as a “Website Accessibility Toolkit.” CDR’s website accessibility toolkit is designed to help businesses “determine if your website meets state accessibility requirements and to provide resources to help make your website and website content accessible.” (See https://dor.ca.gov/Home/WebAccessibilityToolkit.) Among other things, the toolkit has accessibility checklists and self-assessment tools; a list of vendors who provide digital accessibility services; advice for how to create accessible content; a list of relevant state and federal laws and regulations regarding accessible content; training resources; and FAQs.

This bill makes several changes in the law that are designed to improve the accessibility of the internet websites of California businesses and to deter litigation regarding the accessibility of such websites. It has four main components.

First, the bill provides that statutory damages under the Unruh Civil Rights Act (Unruh) and the Disabled Persons Act (DPA) shall only be recovered against an entity based upon the inaccessibility of an internet website developed, procured, maintained, or used by that entity if the internet website fails to provide equally effective communication or facilitate full and equal enjoyment of the entity’s goods and services to all members of the public, including any member of the public who is disabled. It states that to be entitled to statutory damages for internet website inaccessibility, a plaintiff must prove one of the following:

1. That the plaintiff personally encountered a barrier that caused the plaintiff to experience a difference in their ability to access or use the website as compared to other users such that the plaintiff was unable to acquire the same information, engage in the same interactions, or enjoy the same services with substantially equivalent ease of use, or to have the same level of privacy and independence as other users who are not disabled.
2. That the plaintiff was deterred from accessing all or part of the website or the content 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 offered to the public, and most importantly, it creates a presumption in state law that a website of a business entity that meets a specified standard (WCAG 2.1 Level AA) complies with state accessibility requirements and therefore is not liable for damages.

Most importantly, the bill provides that an internet website is presumed to provide equally effective communication for the purpose of determining whether an award of minimum statutory damages, is warranted under Unruh or the DPA, if the internet website complies with the internet website-related accessibility standard established in the bill. This bill wisely adopts the WCAG 2.1 Level AA, which was published in 2018, and has been adopted by the State of California as the compliance standard for its websites for the past five years. The bill sensibly adopts that same standard for the accessibility of websites of private businesses that are required to comply with state and federal accessibility laws.

The presumption is rebuttable. Upon the defendant establishing by a preponderance of the evidence that the internet website complies with the website-related accessibility standard, the plaintiff may rebut the presumption with clear and convincing evidence, showing that, notwithstanding the internet website’s compliance with the standard, the elements of one of the violations set forth above, are established. The above provisions only apply to civil actions filed on or after January 1, 2024, when the bill takes effect.

Second, the bill allows a person who is denied access to a website to bring a cause of action against a person who intentionally or knowingly builds an inaccessible website; allows a business that hires such a website designer to recover any statutory damages and attorney’s fees paid to website users; and allows public prosecutors to enforce the law by obtaining injunctive relief.

Third, the bill requires the advisory that businesses obtain when applying for building permits and business licenses to encourage businesses to obtain warranties and indemnification agreements from companies that design their websites. The advisory is now given to businesses that apply for such permit and currently advises them about many aspects of construction-related accessibility laws. This bill proposes a common sense update to the advisory form.

Fourth and finally, the bill requires the CCDA to advise the Legislature when the WCAG standard is updated. The bill now requires the Commission on Disability Access to do the following:

[A]t a frequency determined by the commission, review the standards established pursuant to paragraph (1) of subdivision (c) of Section 55.565 of the Civil Code to determine whether they are the most up-to-date standards for effective communication by means of an internet website and, within 30 days of determining that the standards are not up to date and should be revised, notify the Speaker of the Assembly and President pro Tempore of the Senate and the Chairs of the Assembly and Senate Committees on Judiciary, of its determination.

The State of California complies with WCAG standards, including a new standard that is released by WCAG. (See Gov. Code 11546.7 (a).) The State must notify its agencies when the WCAG standard is updated, and presumably could provide the notification to the Legislature that is required by the bill. As the bill moves forward, the author may wish to consider whether CCDA is the right state office/agency to have this responsibility.

Together, the goal of these provisions is to increase the accessibility of websites of businesses that serve the public; reduce uncertainty about the standard of accessibility that is required for websites to be accessible; and ultimately reduce litigation about the accessibility of websites.

Author’s amendments. The author proposes several minor clarifying amendments. First, the author proposes for the bill to acknowledge that there are a variety of ways that internet websites can be modified in order to meet accessibility standards. Therefore, Civil Code Section 55.565 (c)(1) would be modified to read as follows:

(c) (1) An internet website is presumed to provide equally effective communication for the purpose of determining whether an award of minimum statutory damages, is warranted under subdivision (a) of Section 52 or 54.3, if the internet website, taking into account the variety of conforming implementations that may be used to meet the internet website-related accessibility standard, complies with the internet website-related accessibility standard.

Second, the author proposes a minor change to improve the bill’s clarity, using the defined term “internet website-related accessibility standard” rather than a cross-reference:

(2) The presumption set forth in paragraph (1) affects the plaintiff’s burden of proof. Upon the defendant establishing by a preponderance of the evidence that the internet website complies with the internet website-related accessibility standard set forth in paragraph (1), the plaintiff may rebut the presumption with clear and convincing evidence, showing that, notwithstanding the internet website’s compliance with the standard, the elements of one of the violations set forth in subdivision (b) are established.

Finally, the author proposes to allow either party, in a dispute between a business and a resource service provider about whether the resource service provider should indemnify the business for designing an inaccessible website, to collect damages and reasonable attorney’s fees and costs.

(2) (A) A person or entity that pays, compensates, or contracts with, the internet website resource service provider to construct, license, distribute, or maintain an internet website for the purpose of providing equally effective communication or facilitating full and equal enjoyment of the person or entity’s goods and services to all members of the public, including any member of the public who is disabled.

(B)  A plaintiff party who prevails under this paragraph shall be entitled to collect all damages, including, but not limited to, any statutory damages and attorney’s fees paid by the person or entity as a result of a lawsuit against the person or entity pursuant to Sections 51, 54, and 54.1, based upon the inaccessibility of the person or entity’s website, and all costs of bringing their internet website into compliance with the internet website-related accessibility standard.

ARGUMENTS IN SUPPORT: Disability Rights California writes that it supports the bill as recently amended because it will improve accessibility of websites and therefore protects the rights of individuals with disabilities:

Even with updates in technology, including online websites, it is crucial that disabled people are given proper protections and the ability to enforce their rights in the same ways that other protected classes are able to. DRC was proud to work closely with other disability rights organizations and the committee consultant on making improvements to this bill that we think will be helpful for the disability community.

A coalition of business groups, led by the Civil Justice Association of California, writes that they would support the bill IF it were amended as the author proposes to amend it:

A growing trend in ADA lawsuits is in website accessibility; in California alone, we saw a 23% spike in lawsuits from 2019 to 2020.

. . .

AB 950 attempts to address these shakedown lawsuits by giving businesses guidelines for how a website can be accessible to those with communication disabilities. We appreciate the author for his efforts to help businesses that are trying to ensure website accessibility for their customers and to protect themselves against lawsuits. The undersigned will be in full support of the bill with the following agreed upon change:

(c) (1) An internet website is presumed to provide equally effective communication for the purpose of determining whether an award of minimum statutory damages, is warranted under subdivision (a) of Section 52 or 54.3, if the internet website, taking into account the variety of conforming implementations that may be used to meet the internet website-related accessibility standard, complies with the internet website-related accessibility standard.

Prior similar legislation. AB 2123 (Chau, 2019) would have created a presumption in state law that a website of a business that meets WCAG 2.1 Level A and AA standards complies with state accessibility requirements. Status: Died without a hearing (hearing canceled at the request of the author), Assembly Judiciary Committee.

AB 434, Baker (Chap. 780, Stats. 2017) requires before July 1, 2019, and before July 1 biennially thereafter, the director of each state agency or entity and the chief information officer of that state agency or entity to post on the home page of the agency’s or entity’s Internet Web site a signed certification that the agency’s or entity’s Internet Web site is in compliance with specified accessibility standards. Specifically, it requires each state agency’s or state entity’s internet website to post on the home page of the state agency’s or state entity’s Internet Web site a signed certification from the state agency’s or state entity’s director and chief information officer that they have determined that the Internet Web site is in compliance with Sections 7405 and 11135, and the Web Content Accessibility Guidelines 2.0, or a subsequent version, published by the Web Accessibility Initiative of the World Wide Web Consortium at a minimum Level AA success criteria.

REGISTERED SUPPORT / OPPOSITION:

Support

Disability Rights California

Support if amended

American Property Casualty Insurance Association
Cal Chamber
California Association of Realtors
California Business Properties Association
California Chamber of Commerce
California Credit Union League
California Restaurant Association
Civil Justice Association of California
Cooperative of American Physicians

Opposition

None on file

Analysis Prepared by: Alison Merrilees / JUD. / (916) 319-2334