Times They Are A-Changin' for CFOs, even more so for website vendors

Aug 01 2023

When it comes to online ADA risk, The Times They Are A-Changin' for CFOs, even more so for website software vendors, consultants and service providers

Proposals to amend the California Assembly Bill on online ADA compliance are predicted to create a ‘lawsuit tsunami’, meaning CFOs in organizations – and now those selling accessibility services or providing digital platforms too – must be on top of the risk of non-compliance more than ever before.

When Bob Dylan wrote The Times They Are A-Changin', he could have been thinking (but most probably wasn't) about online ADA requirements. That's because a new bill – more information can be found by clicking here (opens in a new window) – that could profoundly change the legal landscape regarding online compliance lawsuits is under consideration by California lawmakers.

The AB 1757 bill will introduce language that requires all California websites to follow the Web Content Accessibility Guidelines (WCAG) 2.1 Level AA – with a 'tsunami' of lawsuits predicted to follow. Dylan's lyrics, ‘For he that gets hurt will be he who has stalled’, ring especially true for CFOs today, who need to take ownership of the risk surrounding non-compliance and use the proposed new law as an opportunity to act.

Opening the door to litigation

As discussed in a previous article – click here to read (opens in a new window) – the number of accessibility lawsuits filed in the US increased 175 percent from 2018 to 2022. Legal fees to settle a claim are estimated to average at least $27,750, and there are also huge costs that are hard to quantify related to the time spent fighting the case, including the distractions and stress it causes.

Legal experts suggest that the new bill would significantly expand the legal liability of business establishments for websites and mobile apps that do not conform to the required standards. Of additional concern is the absence of a transition period for businesses and their developers to update existing websites and mobile apps. From experience, changes can take many months and significant resources.

For CFOs, minimizing the risk of litigation from unnecessary ADA exposure is now a high priority.

Risk now more significant for website vendors and service providers

The new bill may have a significant impact on website owners, but it will have an even greater impact on web developers, platform providers or any company that makes products or tools to be used on a website. In other words, vendors are now very much in the firing line. Vendor CFOs and legal teams could easily face multi-million-dollar class action lawsuits if they fail to provide compliant websites or the tools to support website owners in creating inclusive content.

The new bill will make it impossible for vendors to plead ignorance. Previously vendors could only be sued for knowingly or intentionally building an inaccessible website or falsely representing that a site was accessible. In effect, a plaintiff would have to show that the vendor either knew that the website was inaccessible or built it with the intent that it would be inaccessible.

The new bill reduces this threshold to also include negligently engaging in this conduct – and with the number of lawsuits reported and in the public domain – it won’t be hard for plaintiff attorneys to prove that any competent vendor would take active steps to ensure their service, platform or tool was accessible.

In addition, vendor CFOs and legal teams must be aware of the change to the waiver of liability provision, which exposes them to significantly increased risk. Vendors can no longer shift any portion of their liability to the website owner in their contracts, making them a lot easier to sue.

Taking the positives

While attorneys say that the new bill's language seems to encourage litigation, the proposed changes are also being viewed as positive by other groups, including accessibility advocates.

The bill would establish firm technical requirements for online compliance by requiring conformance with clearer standards backed by clear guidelines that ensure websites and app screens are accessible and understandable by all users.

For CFOs looking to mitigate online risk, this clarity should make evidence-based reporting easier and bring confidence and clarity regarding their organization’s digital landscape regarding accessibility.

Protection for businesses

Crucially, the bill would allow plaintiffs to sue third-party developers creating non-compliant apps and websites. Traditionally, website developers and architects have remained removed from accessibility litigation. This rule applies in access barrier cases, where architectures are removed from liability. It is the first time such a rule has appeared in law.

This new rule is welcome as vendors will have to deliver on their promises to produce accessible platforms and comply with clearer standards. How many times have vendors ticked yes to accessibility in an RFP only to fail to meet the requirements knowing it's the organization who will face the music?

Another interesting point in the bill is wording to remove contractual 'get out', which should deliver more protection to organizations. This addition is welcome, as RFPs with no exit and penalty for failing to meet service level agreements can only do so much.

More than simply a web problem

To sum up, the new California Assembly Bill means change is undoubtedly coming. Moreover, because the ADA lacks official guidelines regarding online compliance, it is possible, if not inevitable, that AB 1757's impact will stretch far-beyond California law and potentially be adopted across the US.

For CFOs, the risk of litigation will likely rise to unprecedented levels. There will no doubt be many bun fights around liability and responsibility for many years to come, but the costs will always land with CFOs. Website and app accessibility, therefore, need to be treated like any other organizational risk and not as a web problem. Given the time required to ensure confirmation, it's a risk that CFOs must own sooner rather than later. As Dylan wrote, "You better start swimmin', or you'll sink like a stone, for the times they are a-changin'".

The amendments to AB 1757 are currently with the Senate Judiciary Committee for consideration. If approved, the bill would then return to the Assembly no later than September 14th before going to the California State Governor for approval.

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