California SB1486 may make accessibility audits help avoid lawsuits
California SB1486, a bill that would modify the state’s law on website accessibility, has been making its way through committees and closer to law. It has some very welcome provisions for businesses who care about accessibility.
What’s the bill say?
Even the “summary” version is a little dense, so let’s get a helping hand from Ollama:
Summary by Ollama and Mistral 7B v0.2, using the very nice BoltAI app.
(I added paragraph breaks to its output, because LLMs are still dumb about readability. I’m also intentionally not adding a transcript, because OpenAI and company will scrape it, and that will poison the language models. But I digress.)
There are several interesting things here, but the one I’m excited by is this:
Businesses can avoid lawsuits if their website is certified as accessible by a professional.
This is a big deal, and if California passes the law, it gives legal teeth to accessibility – in reverse! Let me explain that.
The Flaw in Accessibility Liability
It’s not hard to make an accessible website, but it does require enormous attention to detail and a commitment to testing. And after you’ve done all that work, and passed an accessibility audit showing your site conforms to, say, WCAG 2.1 Level AA (recognized in courts as the industry standard)… you can still be sued.
The dirty little secret of accessibility: no matter how good your accessibility is, you probably can’t reach perfection. The Web Content Accessibility Guidelines even say as much:
“…it is not possible to satisfy all Level AAA Success Criteria for some content.”
It is almost impossible to achieve full Level AAA Conformity. What this means for lawsuits is that even if a company makes a true best effort in good faith, they can still be sued. As accessibility attorney Richard Hunt notes, there’s no silver bullet for ADA website accessibility.
(One of my clients settled such a suit for several tens of millions of dollars, despite having reached almost full Level AA Conformity. They tried, and were working on it. They still lost.)
Don’t get me wrong – civil suits are a vital part of the feedback process for correcting business mistakes and malfeasance. But it truly sucks to do the right thing and still get penalized.
SB1486 gives a shield to companies that do the right thing
So here’s the relevant text of the bill. Note the highlighted bits:
…an entity’s internet website would be presumed to comply with the above-described accessibility requirements, as specified, if the internet website has a certain certification by a professional reviewer, as defined, that, among other things, the internet website is designed and intended to conform to the internet website-related accessibility standard, as defined.
This is like how a CPA certifies their audit, and puts their license on the line for it. The proposed law would recognize a certified audit by an accessibility professional, and that certification would shield the entity from being sued.
The proposal also has a few supporting elements that preemptively close loopholes:
You must be qualified: You can’t certify a site if you aren’t actually qualified. (The law leaves the precise definition of that open, as it should. See the CPA profession for how this works in practice.)
No bad-faith efforts: You can’t “intentionally, negligently, recklessly, or knowingly“ make a site inaccessible.
No false claims: You can’t claim that the site you built is accessible if it’s not. You especially can’t do that on purpose for money.
You have recourse: You can sue your website builder for such a false claim.
Non-paid work gets a free pass: If you have not accepted remuneration, this law does not apply to you. This protects students, amateurs, and making sites for friends as a favor. It also implicitly protects pro-bono work.
Other sensible provisions
Also of note:
You can’t use a contract to shift liability from the website provider to the customer. This protects those acting in good faith from providers acting negligently or in bad faith.
Statutory damages can be recovered only if the site fails to provide equally effective accessible options.
You can’t sue unless you have suffered actual harm. This is defined as either of:
1. You must have “personally encountered a specific barrier”, or
2. You must have been “deterred from accessing all or part of the internet website”
This essentially means an attorney can’t bring suit without a plaintiff who actually was affected. (Yes, sadly, this actually has been a thing.)The state can bring a suit, too. The State, counties, and cities are authorized to go to court and get an injunction requiring you to fix the problem.
Why is this is exciting?
This is a big deal – or will be, if passed – because it would put web development on the path to having standards of practice like other professions.
25% of US workers are licensed or certified in their work. From plumbing to accounting, from veterinary practice to medicine, farming to building repair… it’s a way for professions to self-police to ensure a minimum standard of quality, and for customers to feel safe in their choices.
It’s way past time that the web industry grows up and joins the adults. I don’t know whether this will be formal licensing, or passing certification examples, or having ones past work audited, or something else. There’s a lot of work to be done in defining this. But it should happen, and with a little encouragement from the legislature of the largest state in the US, we’re getting closer.
Postscript: A friend of mine commented “I wonder if it'll go anywhere besides being a mostly-ignored-California-thing like the CCPA was. Would be nice if it did.“ On one hand, yes, CCPA hasn’t had quite the revolutionary effects we had hoped for. But, on the other hand, even living in New England, I’ve seen more and more sites following CCPA provisions. Progress can be slow, but it does happen. Eventually.