Q&A With Lainey Feingold, Disability Rights Lawyer

Lainey Feingold is a disability rights lawyer who has worked in the digital accessibility space since 1995. She helped negotiate the first web accessibility agreement in the United States (in 2000) and has worked with the disability community and dozens of private and public sector organizations on their accessibility initiatives since that time.

Lainey is an international speaker and an author. Her book, Structured Negotiation: A Winning Alternative to Lawsuits shares stories and strategies from more than 25 years of collaborations and relationship-building to help create an inclusive digital world. The second edition of her book (not just for lawyers and with a foreword by Haben Girma) was published in October 2021. Since 2019 Lainey has also served as the digital accessibility resource for Disability:IN, a global business disability inclusion non-profit.

Lainey has been named a Legal Rebel by the American Bar Association, received the ABA’s annual problem-solver of the year award, and has twice received a California Lawyer Attorney of the Year Award — all for her work in digital accessibility and Structured Negotiation.

How did you get your start in accessibility?

I got my start by getting lucky and by listening to blind people. In 1992, I was unexpectedly fired from a job and landed a four-month stint at the Disability Rights Education and Defense Fund (DREDF). Those four months turned into four years, and it was during that time I began working on accessible technology issues.

My book tells this story in more depth, but bottom line, blind people came to DREDF seeking access to ATMs. Instead of filing lawsuits, we wrote to Bank of America, Wells Fargo, and Citibank asking if they would negotiate about the need for Talking ATMs. They said yes!

In 1998, toward the end of three very fruitful negotiations with these banks, our blind clients told us about their need for accessible banking websites – something I had never heard of. We asked Bank of America if they’d keep talking to us about their website, and in 2000 the bank and our clients signed the very first web accessibility agreement in the United States. Because our strategy of negotiating instead of suing worked so well, we decided to name it and use it in other cases. Structured Negotiation was born, and it is how I’ve been practicing law ever since.

Can you tell us about a settlement agreement you’re particularly proud of? What was it about that agreement that was so impactful?

That is a hard question! I’m proud of the early Talking ATM and bank website cases because they focused on financial privacy and changed the banking industry across the country. I’m proud of our work with the City and County of San Francisco on accessible pedestrian signals because they made San Francisco a safer city for everyone. And I’m proud of our work on talking prescription labels, most recently with CVS, because access to prescription information is really a question of health and safety / life and death.

Another settlement that had a broad impact (actually two settlements) came out of the Structured Negotiation with Major League Baseball. (I write about this in an appendix in my book titled “The Elements Come Together: Structured Negotiation with Major League Baseball.”) MLB was a great Structured Negotiation because the process brought together blind fans and MLB decision-makers in a way that really drove home (pun!) the need for online access.

Listening to games, poring over statistics, and researching favorite players were things blind fans wanted to do and that MLB understood. Our first settlement (2010) addressed the accessibility of mlb.com and all the individual team sites. Our second settlement (2012) addressed the accessibility of MLB’s award-winning mobile app. As far as I know, it was the first agreement about app accessibility. It emphasized to me the value of Structured Negotiation because the relationship between the American Council of the Blind (ACB) and MLB – so hard to achieve in litigation – was key to the accessibility initiative.

And I’d say lastly, an agreement I’m proud of is the one negotiated in 2021 with Discord and the American Council of the Blind about its web and app accessibility. I mention it here because 22 years after our first agreement in Structured Negotiation, it shows the staying power of this way of resolving accessibility issues. And in the agreement, we reference both WCAG 2.1 AA and also the Authority Tools Accessibility Guidelines (ATAG). This emphasizes that disabled people don’t just consume digital content but are creators too.

These and other agreements I’ve worked on are described in my book and are listed on the Settlements page of my website. I’m curious what your readers think are the most impactful cases!

You’ve released the second edition of your popular “Structured Negotiation.” What’s new or different in the new edition?

The second edition has a new preface, a new chapter, and two new Forewords. One Foreword is by disability rights lawyer and best-selling author Haben Girma. The other is by Susana Sucunza, president of the Association of Collaborative Lawyers in Basque Country, Spain. Her organization is currently translating the book into Spanish.

The new preface shares what I’ve learned about Structured Negotiation from readers and audience members since the book was first published by the American Bar Association in 2016. One thing I describe is how non-lawyers have used Structured Negotiation strategies to advance accessibility in different contexts.

Josh Kim, a web designer in Washington, DC, tells how “Your book made me a successful accessibility designer and a happier human being.”

Sassy Outwater, a blind technologist and advocate here in the United States talks about how Structured Negotiation helps her “project manage her advocacy work.”

And Gisele Mesnage, a blind activist in Australia, shares how the tools of Structured Negotiation help her and her organization advocate for a stronger legal framework for digital accessibility in her country.

For an author, this kind of feedback (and second edition content) is really thrilling. Equally exciting to me was learning how lawyers have used Structured Negotiation even after a lawsuit was filed. Both the preface and the new chapter share some examples of how that happens, creating an oasis of cooperation even when a case is on file. The new chapter 17 also included stories of cases I worked on since the first edition as well as cases by others who used Structured Negotiation to avoid lawsuits entirely.

One last thing about the second edition of “Structured Negotiation, a Winning Alternative to Lawsuits”. There is a new cover with a quote from Jenny Lay-Flurry, the Chief Accessibility Officer at Microsoft. When I started in this field, I could never have imagined that a company as large and powerful as Microsoft would have an accessibility champion in the C-suite, let alone someone as phenomenal as Jenny Lay-Flurrie. Even though we have a lot of work ahead of us to build and maintain a truly inclusive digital world for disabled people, Microsoft’s leadership is a testament to how far we’ve come.

Lainey on stage speaking

What potential issues do you see with artificial intelligence for people with disabilities that could lead to legal issues?

Artificial intelligence holds great promise for people with disabilities while at the same time there are significant concerns to beware of. AI is all about data sets and one big concern is the absence of disabled people in the data. Another key issue is the intersection of race and disability discrimination when it comes to image recognition.

For example, during the pandemic, when academic and licensing exams shifted online, there were examples of how AI proctoring software failed to recognize Black faces and disabled faces, putting a particular burden on Black people with disabilities. In 2010, I wrote about the impact of iris recognition software on blind people who don’t have irises, and those concerns are vastly multiplied a decade later in the current AI environment.

For anyone interested in these issues I recommend following the work of Lydia XZ Brown who speaks and writes about algorithmic bias in all its forms, and the We Count project at the Ontario College of Art and Design University, focused on creating a disability-inclusive data ecosystem.

On the issue of web accessibility for people with disabilities, the biggest ethical issue with AI right now is the exponential growth of web accessibility overlay tools. These tools claim to remediate accessibility barriers with one line of code and no effort on the part of site owners. After more than a quarter-century in the digital accessibility space, I know that digital inclusion for disabled people takes effort and cannot be accomplished with one line of code. I would be the first to sign up if AI could ethically and truthfully create accessible websites. It cannot. Even worse, installing one-line-of-code overlays can make a website harder for people with disabilities to use.

I urge your readers to learn more about these overlay tools and spread the word about them by visiting the Overlay Factsheet and Overlay False Claims. The Factsheet includes links to resources and media reports on overlays, including two articles I’ve written.

What is an accessibility barrier you would like to see solved?

All of them! And right now! But since I don’t have a magic wand to make that happen, I’m going to say workplace software barriers that limit disabled people’s ability to apply for and obtain jobs and thrive and advance at work. (This is another worrisome place for Artificial Intelligence. A recent Accenture / Harvard Business School Report found that as many as 75% of employers rely on AI hiring technology that potentially excludes a large number of applicants including those with disabilities.)

Digital accessibility at work depends on many things, including strong accessible procurement programs, something I’m involved with through my work at Disability:IN. Despite all the progress the global accessibility community has made in the last few decades, the percentage of disabled people in the workforce is still far too low. We can change that with commitment and action around eliminating digital accessibility barriers at work.

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