Before getting started on the blog entry of the week, I want to acknowledge a great loss for the disability rights community. Judy Heumann died two days ago. She was a pioneer in the disability rights movement. She also led the charge for the final Rehabilitation Act regulations, which took four years to finalize from when the law was passed and testified on behalf of the ADA when the ADA was being considered. For those who may not know Judy Heumann, here is something from NPR talking about her life. I was lucky enough to have a couple of calls with her but unfortunately never met her in person. It is a great loss for the disability rights community. To learn more about her, I highly recommend the movie crip camp and the book Being Heumann, both are fabulous.
Turning to the blog entry of the day, I thought I would look at a bill introduced in the California legislature to deal with Internet accessibility litigation. As readers know, if you violate the ADA you also violate the California Unruh Act, which allows for damages unlike title III of the ADA. As a result, California has a great deal of Internet accessibility litigation. We have talked about how tester standing and Internet accessibility is definitely heading to the Supreme Court, here for example. The bill introduced as AB 950 by California State Representative Maienschein, who represents a district encompassing northeast of San Diego, including Escondido among other places. The bill has been referred to the California’s State Assembly’s judiciary committee. As usual, the blog entry is divided into categories, and they are what the legislation does and thoughts/takeaways. Since the entry is so short, you will undoubtedly want to read the whole entry.
What the Legislation Does
- Liability under the Unruh act only happens if the website fails to provide equally effective communication or does not facilitate full and equal enjoyment of the entity’s goods and services to the public, including to any member of the public with a disability.
- To get statutory damages for Internet website accessibility, a plaintiff must prove one of the following: A) a plaintiff has to show that they personally encountered the barrier that did both of the following: 1) interfered with their ability to access all or part of the entity’s Internet website; 2) caused the plaintiff to experience a difference in their ability to access or use the website as compared to other users so 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; or B) the plaintiff was deterred from accessing all or part 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 to all members of the public.
- An Internet website is presumed to provide equally effective communication for purposes of preventing the minimum statutory damages if the Internet website complies with WCAG 2.1 level AA standard for the accessibility of Internet websites or any more stringent subsequent update, revision, or replacement to WCAG published by the entity that puts out WCAG.
- The presumption of the Internet site being accessible affects the plaintiff’s burden of proof and is rebuttable by evidence showing by a preponderance of the evidence the elements of one of the violations mentioned in ¶ 2 above.
- Adds a provision to the government code saying that information about compliance with the state’s disability access laws have to include a statement that a business’s website is required to be accessible and provide equally effective communication and facilitate full and equal enjoyment of the entity’s goods and services to the public, including any member of the public with a disability.
- Requires the California Commission on Disability Access to review the WCAG 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 they are not up-to-date and should be revised. If those standards are not up-to-date, the Commission has 30 days to notify the leadership of the State Assembly and the State Senate of that fact and that the standard should then be revised.
- The bill defines an entity as a business establishment open to the public, a public place, or place of public accommodation.
- The bill defines an Internet website as including all Internet web-based technology, including but not limited to, a mobile application or app that can be accessed by a mobile device.
- I am not a licensed attorney in California even though I did get my first law degree from the University of San Diego (I also have an LL.M. in health law from Depaul University). It is always a good idea to get a licensed attorney in California when interpretation of California state law is involved.
- My initial review of the legislation is that it seems highly sensible. It is impossible to tell what will happen to the legislation as it moves forward in the California legislative process. I did recently read that Internet accessibility cases now constitute a majority of the cases filed in federal court that allege disability discrimination.
- The legislation includes mobile applications and apps on mobile devices.
- The bill does not use the term contained in ADA jurisprudence of, “meaningful accessibility.” However, the language of the bill strongly suggests that meaningful accessibility is what is involved in this bill.
- Level AA compliance with the WCAG guidelines will solve most of the accessibility problems but not necessarily all of them. An individualized analysis is key as is setting up systems to work with people to ensure meaningful accessibility when they still do not have full and equal enjoyment of the website even though it is compliant with WCAG level AA.