A Future Date – Digital Accessibility Legal Update

May 26, 2020

Accessibility advocates from around the world came together last week to hold A Future Date, a virtual conference hosted on YouTube of curated sessions from cancelled major accessibility conferences. The volunteer-led event was meant to continue the discourse around global accessibility challenges and innovations that is usually held at major conferences like CSUN, AccessU and M-Enabling. A Future Date was a large success, drawing in thousands of subscribers, viewers and virtual attendees.

I was one of those attendees, and I learned a lot through the sessions I watched and resources I followed up on. However, there was one session in particular that drew me to the event: Lainey Feingold and Tim Elder’s annual Digital Accessibility Legal Update (DALU). Lainey and Tim are both civil rights lawyers and accessibility advocates, and both have been at the forefront of digital accessibility law since the nascent days of WCAG. Lainey’s annual update is widely-considered the best source of information around accessibility laws and lawsuits out there. It is revered in the accessibility world as best-in-show, and her conference rooms are always packed to the brim. I’ve never had the opportunity to see the DALU at CSUN, so I was excited to get the chance this year.

Accessibility as a Civil Right, or as a Pie…

One of the primary themes of the 2020 Digital Accessibility Legal Update was that technology access and digital accessibility are inherently civil rights; that laws are a part of accessibility because accessibility is a civil right guaranteed to all people by law. To start the session, Lainey began using the analogy of baking a pie to explain accessibility. If accessibility is the pie, then laws and litigation are all baked in.

Tim explained that since digital is now integral to everything, accessibility is as crucial as privacy and security. And since accessibility impacts everything, everyone is going to have to understand what it is and why it is important. “Whatever your role, whatever your institution, you’re probably covered by some law with regards to accessibility.” And if we can assume that accessibility is guaranteed as a civil right, then it’s just a matter of waiting for the courts, federal agencies and other powers-that-be to get aligned. Until then, legal firms like Lainey’s and Tim’s will keep fighting for accessibility with all of the tools in their toolbox.

These are the Ingredients We’re Working With

To continue the pie analogy, Tim went on to review some of the foundational laws (or apples) regarding accessibility along with the government agencies behind them. These included large sweeping US civil rights legislation like the Rehab Act (Sections 503, 504, 508) and the Americans with Disabilities Act (ADA), industry-specific laws like The Air Carrier Access Act (ACAA) and the Affordable Care Act (ACA) Section 1557 which feature digital accessibility prominently, and international laws like the UK’s Equality Act or the United Nations Convention on the Rights of Persons with Disabilities (CRPD).

The two then discussed the current lack of regulatory action in the past few years from the Department of Justice (DOJ) and other relevant federal agencies. Lainey made the point that although the Federal government doesn’t seem to be taking an active interest in resolving the accessibility question, the ADA is alive and well, and that courts realize that regulation isn’t necessary to make accessibility necessary. Tim added that they believe legal trends point toward State and Local Government-driven regulation through local laws, since most companies that operate in all 50 states would likely try to meet the strictest criteria of any of the states. They agreed that many of those laws would center around products, and that accessibility could be featured in laws dealing with any number of things including fraud, consumer protection, unfair competition, product liability, negligence, etc.

Baking Pie!

After discussing the foundational laws, federal agencies and trends around regulatory action and legislation surrounding accessibility, Tim and Lainey continued the pie analogy by comparing legal accessibility professionals as part of the kitchen. Lainey said that, “they are necessary to ethically implement the laws and enforce the standards.” Regardless of the method (litigation, structured negotiation, etc), lawyers and legal professionals help people with disabilities who need access fight for access. In the absence of regulation, litigation drives change.

For the second half of the presentation, Lainey and Tim focused on different types of lawsuits and legal actions being taken in the accessibility space. They broke it down by the different types of users being affected in the cases, and tried to give example cases for each type of user. For the purpose of brevity, I won’t delve into all of the different lawsuits and legal actions discussed. But the types of users involved in these cases included:

  • Diners who can’t dine (Domino’s Pizza lawsuit)
  • Shoppers who can’t shop (Winn Dixie & Walmart cases)
  • Campers who can’t reserve campgrounds (California Parks $66Mil website case)
  • Employees, job applicants and retirees who can’t access or submit information
  • Students who can’t learn (Harvard/MIT Case)
  • Citizens who can’t vote (Maryland voting machines case)
  • Movie viewers who can’t understand content (Netflix captioning suit)
  • Investors and savers who can’t stay on top of balances and transactions
  • Patients who can’t get prescriptions

Through all of the legal cases Tim and Lainey shared, a few important lessons stood out that I wanted to highlight.

First, each case that is successful creates a strong precedent for future cases to lean on, and a lost case doesn’t mean the issue is dead. Each win reduces the strength of the “No Regulations, Undue Burden” argument.

Second, people tend to focus too much on web accessibility and not enough on the accessibility of different devices or applications. There needs to be renewed focus on kiosk accessibility, wearable accessibility, XR accessibility, etc. And if your company still uses paper for any reason you likely need accessible alternatives.

Fourth, we need to be on the lookout for more scalable solutions. Harvard’s captioning case gave strong credence to the “Consent Decree” model for captioning videos across an institution. We need more wins like that.

Finally, people and companies never learn. You can lead a horse to water, but you can’t make them drink. All of us accessibility professionals need to keep advocating and pushing our partners and clients.

Conclusion

To close the session, Lainey and Tim shared important thoughts on ethics in accessibility and the law. They acknowledged that things have changed, and that with the influx of lawsuits and consultants it can be hard to separate good info from bad. They stressed the importance of focusing on users above all else and involving every role in accessibility. In the end, companies that truly care will show it by baking accessibility into organizational culture.

Lainey and Tim’s Digital Accessibility Legal Update was as expected: informative, succinct and fun. Through the lens of a pie, they highlighted the various factors or ingredients that make accessibility what it is today. The DALU provided a 30,000 foot view of the legal framework and cases that shape accessibility today and shared insightful opinions on how things might trend moving forward. They provided more hope than frustration, which is more than you can say for most news and information these days.

With CSUN and most accessibility conferences through the Summer being upended, A Future Date was able to bring together the people that care most about accessibility to provide learning opportunities and build up the a11y community. Thank you to Matt May of Adobe along with all the other event organizers. We hope we don’t have to return next year!

Accessibility Consultant | Brooklyn, NY

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