$2M Bashin Settlement Holds Web Developers Accountable for WCAG Compliance
In this unique web accessibility case, the California Department of Parks and Recreation paid Conduent State & Local Solutions, Inc. and US eDirect an astounding $66M to create an accessible online reservation system that would presumably enable anyone to reserve campsites. Yes. Charging $66M for a reservations system should be a crime, but the actual legal challenge here started when Bryan Bashin, a California resident with vision loss encountered significant barriers as he tried to reserve a campsite on ReserveCalifornia.com. The site was not WCAG complaint as claimed, and this violated the contract between the state and the vendor, and there lies the crux and unique nature of this landmark case.
Typically, the website owner would be the target of the lawsuit. However instead of going after the California Department of Parks and Rec, Bashin’s combined legal team of Relman Colfax PLLC and TRE Legal Practice, took a unique approach. They filed a lawsuit that went after the government contractors who failed to meet its contractual obligations to the State.
But wait. How can a private citizen sue a massive government contractor without any contractual relationship? They used a little known “ “qui tam” whistleblower provision in the California False Claims Act. Their innovative approach yielded a $2M settlement - one of the largest for web accessibility violations in the US!
The case establishes new precedent and methods of holding government contractors accountable for adherence to both state and federal digital accessibility laws. It also signals to all web developers that they first need to take web accessibility seriously, and if related contractual agreements are made, they need to make sure they are followed.
Overview of Bashin’s Lawsuit
Mr. Bashin and his legal team leveraged four key legal frameworks:
- The California Unruh Act: Prohibiting discrimination based on disability in public accommodations, including government websites.
- The Americans with Disabilities Act (ADA): Mandating equal access to public accommodations, encompassing both physical and digital spaces.
- Section 508 of the Rehabilitation Act: Requiring accessibility for websites of federal agencies and government contractors.
- The California False Claims Act: Empowering individuals to sue on behalf of the government against contractors who make false claims, including misrepresenting accessibility compliance.
The success of the case hinged on the application of the False Claims Act and its “qui tam” whistleblower provision. This provision enables individuals to file lawsuits on behalf of the government against organizations they believe are defrauding the government. This provision empowers and incentivises whistleblowers like Mr. Bashin to take action against contractors who misrepresent their adherence to accessibility standards, ultimately protecting the rights of people with disabilities and ensuring fair use of government funds. The incentive allows winning plaintiffs to collect a significant award of the final settlement, which in this case was $87.5K, plus an additional $1.75M for his remaining claims and attorneys’ fees. The state got back $165K.
That’s quite an incentive that other plaintiffs will likely pursue with this strategy and proven precedent.
Additional precedents include:
- Developers' Responsibility: Web developers can be held legally liable for failing to meet contractual WCAG compliance guarantees, regardless of the client.
- Heightened Accountability for Government Contractors: Government contractors face an increased responsibility to ensure the accessibility of websites developed for government entities.
Notice to All Web Developers
This case serves as a wake-up call for the web development industry, urging a shift towards prioritizing accessibility from the outset:
- Integrating Accessibility: Accessibility considerations must be integrated throughout the entire development process, not as an afterthought.
- WCAG Compliance and Verification: Adherence to latest WCAG guidelines and rigorous testing by qualified professionals are crucial for validation.
- Transparency and Accountability: Developers must be transparent about their accessibility efforts and demonstrate their commitment to building inclusive websites.
Beyond California: A National Impact
While the case directly impacts California government contractors, its potential ripple effect extends nationwide. With similar "qui tam" provisions existing in 29 other states with False Claims laws, the possibility of similar lawsuits against developers underscores the need for proactive adoption of thorough accessibility practices in the design and construction of websites.
What is the WCAG?
The Web Content Accessibility Guidelines (WCAG) are a set of internationally recognized standards designed to make web content more accessible to people with disabilities. Developed by the World Wide Web Consortium (W3C), WCAG provides detailed criteria for creating websites that are perceivable, operable, understandable, and robust for all users, regardless of their abilities. It is the international standard for digital accessibility, and serves as the standard for the ADA, Section 508 of the Rehabilitation Act, and various state accessibility laws. Learn more about WCAG and ADA compliance standards in the US.
Importance of WCAG Compliance
- Legal - Almost all websites are covered by either the ADA or Section 508 of the Rehabilitation Act. And in addition to legitimate plaintiffs and advocacy groups actively defending web accessibility rights, there is also a throng of serial plaintiffs and attorneys seeking easy settlements.
- DEI - Diversity, Equity and digital Inclusion, includes the rights of people with disabilities to access digital as well as physical places of public accommodation. Nothing has highlighted the value of digital access and the disparity of access better than the pandemic, when the world turned inward to the Web for nearly everything.
- Opportunity - Not only are there 61M people with a disability in the US, but also consider the 71M Boomers carrying $548 BILLION in discretionary spending and who also share similar challenges with vision, hearing, cognition and fine motor skills.
- (New for 2024) AIO Articial Intelligence Optimization - The advent of AI technologies like Bing and ChatGPT introduces new considerations for website accessibility. These AI models, while intelligent, encounter barriers akin to those experienced by assistive technologies. This similarity makes WCAG adherence an effective strategy for AIO. This blog post redefines the new term AIO and outlines its new role for website marketers, and this post dives into how AIO can add value to WCAG compliance. More about WCAG compliance and optimizing for AI.
Best Practices for Designing and Auditing Websites for WCAG compliance.
Starting with what not to do, absolutely avoid using accessibility overlay widgets, toolbars or plugins. Categorically, none of these work, despite that too-good-to-be-true claims, guarantees, and the overuse of the term AI. Not only do they fail to deliver actual WCAG compliance, they seem to attract trolling attorneys. Learn more about why overlay widgets are bad.
Also remember that even the best software on the market can only detect ~30% of WCAG issue types - at best.
In the design and development phases, consult with a qualified web accessibility consultant. Be sure they do not overly rely on automated tools and have well credentialed and experienced WCAG testers. Have them test designs as they approach final stages, and during development, have them test templates and components as they’re produced.
Once the site is stable and content is entered, test the entire website using a combination of automated and manual WCAG testing that includes screen reader testing. Each screen readers behaves differently so test with each of the major screen readers: JAWS, NVDA, Zoom Text and Dragon. Also test with TalkBack on Android, and VoiceOver on iOS.
Bryan Bashin's struggle with ReserveCalifornia.com is not just a singular incident but a symbol of a broader systemic issue that affects digital accessibility for most website, web apps and mobile apps today. Bashin's legal victory, leveraging the “qui tam” whistleblower provision of California's False Claims Act, demonstrated that private citizens can indeed hold government contractors accountable. This $2 million settlement, one of the largest for web accessibility, extends beyond Bashin's win, signifying a major leap forward for digital inclusivity and accountability.
This verdict is a wake-up call that reaches beyond government contractors. It’s a call to all web teams to prioritize accessibility and follow best practices to ensure all visitors have equal enjoyment of such digital places of public accommodation.