Website developers and even remediation experts have reason to be concerned about a recent decision from California. In Bashin v. Conduent, Inc., Case No. RG18888208 in the Superior Court for Alemeda County, Judge Brad Seligman refused to dismiss ADA claims against the developer of a website for the State of California Department of Public Works and Recreation. Each part of the decision identifies a real risk that every website developer needs to be aware of.
The plaintiff’s primary case was a qui tam action based on the defendant’s delivery of the inaccessible website to the state agency. In a qui tam action an individual sues on behalf of a state or federal agency that he or she believes is a victim of fraud. In this case the plaintiff claimed the developer had violated California’s False Claims Act by delivering a website that did not meet the requirements of the state contract. The Court allowed the claim to proceed against the developer and its holding company parent based on allegations that the developer knowingly failed to do the design and testing activities needed to deliver an accessible website. It is significant that the alleged fraud included that false claim that automated testing of the website would be sufficient. There is near universal agreement among accessibility experts that no automated testing program is sufficient to insure accessibility, just as there is no automated way to fix an inaccessible website.** In any event, website developers working for state and federal agencies, both of whom have explicit accessibility obligations, need to take care that promises of accessibility are kept, especially since a qui tam action can be profitable for the plaintiff and their lawyers.
In addition to the claim on behalf of the state the plaintiff sued on his own behalf as a user of the website, claiming the developer’s conduct violated both the ADA and California’s Unruh Act. Whether these claims will stand up on appeal or not the Superior Court had little difficulty finding that a claim was stated. The Unruh Act claim was based on the prohibition against denying, aiding or inciting a denial of full and equal access to public accommodations found in California Civil Code §51(b). The Unruh Act includes an intent requirement, but a website developer who represents that they are delivering an accessible website might be said to have “aided” in the denial of access by a consumer.
The ADA claim is based on the ADA’s general anti-retaliation provision making it unlawful to “coerce, intimidate, threaten, or interfere with” any individual in the exercise of their rights under the ADA. 42 U.S.C. §12203(b). The Court was willing to find that failing to deliver an accessible website could constitute interference with a disabled person’s exercise of their rights under the ADA because it interfered with the state agency’s ability to serve the plaintiff. The same reasoning could apply to a private business website as well.
This case doesn’t just suggest a risk to developers; it also suggests a risk to those who sell remediation and consulting services. There is nothing about the legal theories in this case that would not apply equally to a consultant who promised but failed to remediate a website. Companies that rely exclusively on automated tools to identify accessibility problems would seem to be at special risk since that reliance was at the heart of the claims in this case.
This is an early decision in a state court case, but there is no reason to think plaintiffs’ attorneys looking for new targets won’t pick up on these ideas, particularly for websites developed by major companies under state and federal contracts. I and many other lawyers advise our private clients to include accessibility as a requirement in any web development contract. State and federal agencies will always require it. Developers who sign off on such requirements without understanding just what it means to develop an accessible website are signing off on potential liability not just to their customer, but also to every person who uses the website.
* Thanks to Jason Taylor of Usablenet for calling this case to my attention.