When you hire a professional to work on your home, you have certain baseline expectations. Plumbers, electricians, and engineers are all subject to building codes and regulations. When I had a plumber install a new water heater, I fully expected that he would meet all of these requirements. I could test the faucets to ensure that the hot water was flowing. But, as a layman, I couldn’t verify that he had installed everything to code.
When it comes to digital technology, there are also baseline requirements that may be less apparent to the layman. Websites must be built to be performant, secure, and accessible. But while site owners will probably notice if the design is implemented incorrectly, they may not be capable of flagging accessibility bugs (and may not even know that accessibility is a baseline requirement).
Who is liable for accessibility?
Under the Americans with Disabilities Act (ADA), business owners are required to provide accessible public accommodations. This includes websites, mobile apps, and other digital accommodations alongside physical structures. And if businesses do not provide accessible accommodations, private citizens are empowered to sue to force them to do so. Importantly, there are no damages awarded for lack of accessibility under federal law.
There are a lot of problems with how this works in practice, but it seems totally fair and appropriate that businesses should be responsible for ensuring that they follow the law and provide an equitable experience to the public, including those with disabilities.
At least that is how it works on paper.
In practice, things work a bit differently. Businesses that lose an ADA lawsuit must pay the plaintiff’s attorney fees. This means that businesses are incentivized to settle out of court early before the plaintiff has a chance to run up a big legal bill (not to mention the costs of defending a lawsuit). And plaintiffs can send demand letters threatening lawsuits without having to incur out of pocket costs.
This feels unfair
There is a lot about this system that probably feels unfair to businesses. Web accessibility lawsuits are filed by serial plaintiffs at high volumes. In many cases, the plaintiffs never have any real intention to become a customer or explore the company’s website. Many of the complaints are even literally copied and pasted.
But to me, the part that feels the most unfair is that it is the businesses that bear this liability alone. It’s true that the buck has to stop somewhere. But when a business owner contracts with a web developer or agency, they are hiring a professional. And it should be the professional’s responsibility to build an accessible product and to avoid introducing legal liabilities for their client.
California’s AB1757 may be changing the rules
California state law is already somewhat stricter than the ADA in entitling plaintiffs suing for accessibility violations to damages of at least $4,000. The state assembly is considering a new bill, AB 1757, that would offer clearer guidance on digital accessibility standards that businesses must meet. But the bill also adds an interesting twist in allowing individuals to directly sue the web developers or agencies responsible for building websites that do not conform to these accessibility standards. And the business or entity that pays for the website has the same right to sue if the end product is not accessible.
Seyfarth Shaw, a leading public accommodations defense law firm, predicts that passing this law “could result in a lawsuit tsunami.” Needless to say, this is a big deal that could have a huge effect on the web industry.
Shifting ultimate liability to the developer or service provider makes a lot of sense. And this is something that accessibility-knowledgeable vendors should welcome. The flurry of legal activity over the past seven years has helped drive greater accessibility (and frankly is good for business for those of us in the accessibility industry). But it feels right that those of us taking responsibility for driving accessible outcomes should have some skin in the game too.
How would it work?
And will it work?
I’m not a lawyer. And of course, what happens next very much depends on the specifics of how the text of this law evolves and how it is interpreted by courts.
That said, this law should force digital agencies (as well as individual designers and developers) to up their accessibility game. Quickly. The law notably would offer no transition period before these new liability requirements kick in.
It’s no secret that most designers and developers don’t prioritize accessibility right now. And many don’t know how even if they wanted to.) Even when accessibility is a consideration, site owners and clients are less likely to be able to verify that accessibility requirements are met. And with any requirement that is less visible to site owners or stakeholders, there’s a lot of temptation to cut corners when faced with budget or schedule constraints.
It’s also likely that this could raise the cost of web development. With providers unable to waive or shift this liability, they may price this greater legal risk into contracts. Developers with a demonstrated ability to build accessible solutions will gain market power (and lower priced providers may exit the market if they cannot absorb these potential costs).
It could also drive huge changes in the ecosystem as developers demand that frameworks, plugins and libraries become accessible. Depending on how courts construe the liability of software vendors like content management systems, themes, and plugins, this could also affect the economics of free or low-cost tools.
And who knows? It may even impact the business model of overlays if they are forced to defend against a large number of drive-by lawsuits directly.
How far do developer responsibilities extend?
The law may also create more questions than it solves.
How do you determine developer liability? The answer may be simple when a website or mobile app is designed and built to be inaccessible from the start. But accessibility decay is a thing. And while developers or agencies can certainly provide training to site owners and marketing teams to maintain accessibility over time, they often have very little control over what happens to a site after it is handed over.
Will developers be stuck defending lawsuits against site users (or their own clients) over something they have no control over?
Is AB1757 cause for fear?
This proposed California law would add more teeth to existing digital accessibility regulations. We can’t say if there will be a “tsunami”, but there would be a new class of defendant that needs to consider its liability to provide accessible digital experiences. And, unlike businesses that have only one website, developers and agencies have much wider exposure. For an entity responsible for dozens if not hundreds of sites, the odds of a lawsuit are higher.
At least some businesses are scared. In an accessibility industry Facebook group, we observed one agency claiming to specialize in ADA compliance and web accessibility has spearheaded a campaign against the new law. (And while I’m not going to link to it, it may not surprise you that the campaign website is not itself accessible.)
We’re well aware that the devil is in the details and that well-intended laws can have unintended effects. But we think this law represents an opportunity for agencies and practitioners to distinguish themselves as providers who can be trusted on accessibility. There is no time like the present for web designers, developers, and agency teams to begin building digital accessibility subject matter knowledge.