This article is based on an A11yNYC talk given by Lainey Feingold, a disability rights lawyer, public speaker, and author.
What is digital accessibility? Accessibility is captions. Accessibility is alt text. Accessibility is management, policy, training, and design. It’s everything.
Lainey thinks of digital accessibility as a door and a bridge. The door part is if we don’t build accessibly, then it locks disabled people out of the 21st Century. Because there’s nothing that’s not digital. And it’s not just talking about locking the doors for consumers. It’s also about locking the doors for creators, employers and employees.
A lot of times accessibility is thought of as who is going to visit the website. But we’re trying to create an accessible world where people with disabilities are building or designing websites, as well as apps and all other tech.
If you don’t have digital accessibility, you’re locking people out. And if you do have it, you have a door that’s open. Building accessibility is opening the door to people. People in accessibility are door openers.
Accessibility is a bridge between disabled people on one side and the technology of the world and the content of the world on the other. Without accessibility, people with disabilities are stranded on one side of the bridge. They cannot cross over. There are many things that build the bridge. People in accessibility are bridge builders.
Accessibility barriers are stairs. You may or may not know about the Capitol Crawl because it’s not often taught in history. The Capitol Crawl was part of the run-up to the Americans with Disabilities Act.
People with disabilities said enough is enough. They left their wheelchairs, crutches, and mobility devices behind and crawled up the steps of the United States Capitol. Today’s digital accessibility barriers are stairs that block participation, inclusion, and communication. Hence, people in accessibility are also ramp builders.
Digital accessibility is like privacy and security. Companies need to treat accessibility like security. Nothing can go out if it’s not airtight. Nothing should go out if it’s not accessible. But accessibility is not just like security, it IS security. If there’s no accessibility, there is no privacy and security for people with disabilities.
Because the whole idea of accessibility is to allow for independent use. If there’s not independent use, then you must ask someone outside the circle. Thus, security is broken.
Digital accessibility is essential to diversity, equity, and inclusion (DEI). It’s essential to environmental, social, and governance (ESG) — a standard for responsible investing. Accessibility belongs in all these things. People need to understand that. Accessibility is an ethics issue. If you’re in a field, you have banking ethics, financial ethics, medical ethics, and so on. If they don’t have accessibility in there, disabled people will be left out.
U.S. Framework for Accessibility
Digital accessibility is a civil right and human right for people with disabilities. (Some areas refer to civil rights as human rights.) That’s where the law comes into play with accessibility. Civil rights are baked into laws. “The legal framework gives us permission to dream what is possible,” said Lizzie Kiama (Kenya) at the Microsoft Ability Summit in 2021.
The United States has a very strong framework. The U.S. has the Americans with Disabilities Act (ADA). The U.S. has Section 504, which says the federal government shouldn’t spend money on things if disabled people are excluded from those things. Section 508 requires all information and communication technology (ICT) purchased, developed, maintained, or used by federal agencies to be accessible to people with disabilities.
The Air Carrier Access Act (ACAA) is about airline access for disabled people. Right now, it’s weak and trying to be strengthened. It does have strong requirements for accessible kiosks and websites. In the U.S., if you tell the federal government or state government that you’re delivering something accessible and you don’t, then someone can file a false claim lawsuit.
Section 1557 is about accessibility in the healthcare space. The 21st Century Communication and Video Accessibility Act (CVAA) is mostly focused on accessibility for deaf people, blind people, deafblind people, and other people who face communication barriers. There are also state and local laws in many states and local governments. New York and New York City have some of the strongest accessibility laws at the state and local levels.
New laws are popping up. For example, Maryland has a new procurement law related to K – 12 technologies for students. It requires technology to be accessible.
Maine has a Digital Accessibility and Usability Policy for their state government websites, where 5.1 says, “The expectations are that accessibility and usability for all current and potential users will be considered, and that accessibility will be addressed natively; without relying on third-party products to improve accessibility that could potentially interfere with an inclusive user experience.” It’s anti-overlay.
All these frameworks have legal remedies. The remedies vary. Lainey’s United States Legal Updates and Global Law and Policy pages have more information about these laws. Lainey’s one tip regarding proposed accessibility laws and regulations is to don’t wait. Move forward. Don’t wait for them to become a reality.
They may not become a reality, or they could be years away. They often end up referring to Web Content Accessibility Guidelines (WCAG) as the standard. It’s a global standard with no competing standards and all organizations can begin using that standard today.
About U.S. Federal Agency Guidance and Regulations
It’s important to be aware of what the federal agencies do as they do more than issue regulations. Some courts will listen to federal agencies. It depends on the judges. Recently, the U.S. Department of Justice (DOJ) and the U.S. Health and Human Services (HHS) issued great telehealth guidance on the importance of accessible telehealth.
There’s also a U.S. DOJ and Equal Employment Opportunity Commission (EEOC) guidance regarding hiring technology that discriminates against disabled applicants. Using artificial intelligence (AI) as a hiring tool can discriminate against people with disabilities.
Organizations may be using AI hiring tools like resume scanners, or videos that watch to see whether the candidate makes contact. However, some people with certain disabilities can’t make eye contact easily. A disability may cause resume gaps that can be explained and must be accommodated.
The U.S. Department of Education (DOE) is trying to update its regulations. But since they could not get the regulations out quickly, they wrote a Dear Colleague letter about higher education digital accessibility.
It’s the federal government explaining to U.S. higher education institutions that digital access means that more than websites need to be accessible. Other technology that needs access for full participation include social media, learning platforms, and podcasts.
Sometimes when U.S. federal agencies cannot issue regulations, they’ll issue guidance. Issuing regulations is a more complicated process.
Implementation
Without implementation, you’re stuck with raw cookie dough. Ideas for implementation are baked into the laws. Countries outside of the U.S. are developing a lot of good laws and policies. Lainey is not aware of the kind of implementation seen in the U.S. where laws are implemented by disabled people, lawyers, government agencies, and of course organizations that are proactive about protecting civil rights.
When a disabled person in the U.S. can’t see something, can’t hear something, or can’t find something, they’re talking about lack of access. Government agencies can file complaints and get involved in lawsuits.
Since 1995, Lainey has been using Structured Negotiation instead of filing lawsuits to advance accessibility. The process emphasizes collaboration. When a client experiences an accessibility barrier, lawyers who use Structured Negotiation first contact the company or other entity
Lainey started doing this work with efforts to make ATMs accessible in the 1990s. Lainey and her co-counsel and clients wrote to different banks saying the lack of access was a legal violation, but they preferred to work with the company rather than sue them.
Lainey wrote “Structured Negotiation: A Winning Alternative to Lawsuits” to teach people to talk in a way that engages the people we’re trying to reach. She did not file any lawsuits as she’d reached an agreement with companies using the Structured Negotiations approach. Settlements in structured negotiations list agreements with many companies using this approach.
Disability Rights Legal Cases
Lainey’s favorite cases are ethical cases that try to solve problems with real people.
California’s $66 million website
The first one is a $66 million website case. The California Park System hired a company to build a website for them. It included a reservation system. Considering California is one of the largest states, they paid $66 million for the website.
The vendor promised the website would be accessible. Unfortunately, it wasn’t. That leads to a pending lawsuit that says it’s a false claim. The vendor claimed it was accessible, but blind people and their lawyers argued that this claim was false.
The lawsuit is trying to get the money back for the state. They’ve sued the contractor and web developer as well as the subcontractor on the project called US eDirect. An announcement on this case is expected soon.
Education
Two blind students and the National Federation of the Blind brought a lawsuit against the Los Angeles Community College District (LACDD). The district’s math and other courses were not accessible to blind students who used screen readers. The two students were awarded more than $240,000 by a jury because of the LACCD’s discrimination.
Most of these cases start with the disabled person trying to get the problem fixed on their own. While it’s not required under ADA, it’s best practice to try to get it fixed. Blind students were denied equal access to education.
Laura Carlson’s web design references email newsletter references articles related to accessibility lawsuits in education. She maintains a webpage with links to information about higher education accessibility lawsuits.
These cases and settlements are good ones to follow because they give you a good road map of how to do things when it comes to inaccessibility. These cases aren’t just about websites. They cover learning platforms and student communications.
Employment
Employment cases, like the education cases, tend to be by real applicants or employees who couldn’t apply for a job or weren’t able to do the job, because technology wasn’t accessible. There was a very nice settlement with ADP and the blind community. ADP is a payroll company. That was a case that was filed as a lawsuit but then pivoted to structured negotiation.
While Lainey has used Structured Negotiation without a lawsuit, sometimes people feel more comfortable with the lawsuits on file. But that doesn’t mean you have to fight the lawsuit with everything you’ve got. You can still collaborate and use the Structured Negotiation ground rules and other strategies. That’s what happened in ADP. They switched to Structured Negotiation. They paused the fighting to try to work it out.
There’s a case that was against the FBI, by someone working in tech in the backend. It was the first case that said an individual blind person could file a lawsuit under Section 508. There may be more lawsuits under 508 as a result.
Meanwhile, lawyers and clients who need access to kiosks are using lawsuits and structured negotiations to make kiosks accessible.
American Council of the Blind (ACB) brought a class action against Quest Diagnostics. The case had a week-long trial in Los Angeles in 2022. The court ruled that Quest violated the ADA by installing self-service kiosks. Blind and low vision patients could not use the kiosks independently. The court’s judgment requires Quest to add accessibility and conduct training.
This was a big victory for kiosks. Lainey’s website has a page devoted to kiosk accessibility. It’s easy to make kiosks accessible. It’s critical that patients should be able to use them independently to avoid sharing their medical and private information. When a patient is forced to ask someone for help to use a kiosk, it’s a major violation of their privacy.
Virtual Reality (VR) Captioning
Panarra versus HTC Corporation is about virtual reality captioning. This was the first virtual reality-related lawsuit Lainey is aware of. It was a lawsuit against HTC Corporation for offering and building things that weren’t accessible to deaf people because there were no captions.
The first thing that happened was that the company tried to get the case thrown out of court. The judge said the case will stay in court. And after that, it settled.
Voting
A lot of work is being done in voting, which is important because of participation and citizenship. There are cases about accessible ballots for absentee voting, about accessible voting machines, and about voting information. A voting case in California, resolved with Structured Negotiation, was the first case to use WCAG 2.1.
While WCAG 2.2 is now available, it doesn’t mean every lawsuit or settlement is going to immediately apply WCAG 2.2.
Podcast Accessibility Lawsuit
There is a pending case brought by the National Association of the Deaf versus SiriusXM. When there are no captions or transcripts on a podcast, people are locked out. They cannot access the content of the podcast.
When you’re doing big first-time cases like podcast accessibility, it’s important to consider the ramifications in the legal system. If you can’t make the settlement public, because not all companies will agree, at least do a press announcement. Unfortunately, many of these lawsuits — not this one, but so many of these other lawsuits — you never know what happens to them.
They get a big splash of press. This company got sued. This celebrity got sued. And you never hear what happens to them. Part of the ethical picture is, especially when you’re impacting something as big as podcasts that are everywhere, to be transparent. Lainey is following the NAD vs. SiriusXM case and will write about the outcome when it happens.
Parts of the Accessibility Legal Space that Lainey Doesn’t Like
According to UsableNet lawsuit tracker, in September 2023, there were 327 digital cases filed. Out of those, 56 were against defendants who have been sued before and 58 were against companies using an overlay.
UsableNet’s numbers for one year in 2022 show 4,016 digital cases field. More than 600 of those were against defendants previously sued. More than 600 were against companies using an overlay. At 97%, most of the cases were related to websites.
Do these numbers help or hurt accessibility? So many lawsuits make people afraid. Fear is not a good motivator. Companies start thinking accessibility isn’t important and forget about it as soon as the lawsuit is over. That’s why it’s important for accessibility leaders and professionals to talk about accessibility as a civil right, door opener, ramp builder, and bridge builder. Companies forget accessibility is about people.
These lawsuits are referenced by the name of the company getting sued. They rarely mention the name of the person who brought the lawsuit. Hence, people are left out of the process. Someone made a video disagreeing with Lainey. The person said lawsuits help because they raise awareness. This is true. But is it good awareness?
Overlays and SLAPP
Lainey’s opinion is that one-line-of-code overlays are a negative side of what’s happening in the digital accessibility space. Check out the Overlay Fact Sheet if you haven’t already. There are plenty of articles and media about overlays. Share these resources. The people purchasing or licensing the overlays are not to blame for this problem with the abundance of overlays.
Lainey believes that it’s overlay companies that have significant amounts of venture capital to put into advertising and marketing that are responsible for the situation of many companies using overlays.
Then there is SLAPP, which is a Strategic Lawsuit Against Public Participation. Globally recognized accessibility expert Adrian Roselli was sued for saying negative things about an overlay company.
It’s not just happening in the U.S. There are two overlay lawsuits in France filed by a French overlay company. One is against a woman who owns an accessibility company. The other is again a woman who has a two-person accessibility shop.
Testers Suing
In civil rights law in the U.S., testers have played a really important role. In the 1960s, civil rights groups would send a Black couple and a white couple into housing to see if they could buy or rent the house. Nine times out of ten, the Black person would be denied, and the white person wouldn’t. They were never planning to buy the house. They were testing the civil rights laws. So testing is a very important civil rights concept.
There’s an important ADA rule that you must post information about accessibility in hotel rooms. Do you have a roll-in shower or a level entry? That came up in the U.S. Supreme Court Case About Hotel Websites. Laufer has filed many cases about that regarding hotels she never intended to visit.
Laufer does not want to pursue the case anymore. The hotel company doesn’t own the hotel anymore. Even though they had the oral argument recently, Lainey thinks the chances are good that the court is going to say they can’t decide these things when neither the plaintiff nor the defendant wants to pursue the case. This is called being moot. We will find out next year what the Supreme Court decides to do.
How to Stay Ahead of the Law
Accessibility is delicious. The accessibility cookie’s first ingredient is to hire and engage disabled people. That’s the number one ingredient. The ingredients in accessibility include having transparency in feedback, testing, training, ethics, procurement, and policy and culture. Also, shift design and development as far to the left as you can.
Some organizations depend on the policy. However, when you understand how many parts of your organization accessibility touches, then that’s the best way to stay ahead of the legal curve. Human resources (HR), marketing, communications, and collaboration. They’re all part of the accessibility cookie. No shortcuts, no overlays.
Don’t forget the law. The law is the salt because bakers know you can’t get a sweet cookie without a little salt. And if you put in too much salt, you get a bad cookie. So, knowing and understanding the law and being able to talk about the law helps you stay ahead of the curve.
However, don’t let the law drive your decisions as that can be a problem. The best, most advanced companies know the law. Talk about accessibility in the ways people talk about privacy, security, diversity, inclusion, belonging, and independence. Say it’s good for business.
And be sure to talk about people instead of lawsuits. Say things like shouldn’t blind workers be able to check their vacation time for help? Manage their healthcare without help? Shouldn’t deaf learners be able to access podcasts? These are what ethical lawsuits are about. They’re really about people trying to gain access to the digital world.
It’s important to understand who you are talking to when talking about accessibility and the law. Every organization, every person, every supervisor, every boss, and every company, sees themselves in a certain way. If they don’t do accessibility, then they’re missing a part of themselves.
What do they care about? How do they see themselves? They may claim the company is people-centric and puts their employees first. But if the company doesn’t include accessibility, then they can’t say they care about their employees.
What are their values? Accessibility fits into every value because accessibility is ethics. Accessibility is including 1.3 billion people around the globe who have a form of disability. What are they worried about? They’re worried It’s going to cost too much. Then, talk about the cost of a lawsuit versus building accessibly from the start.
And finally, don’t talk about accessibility with fear. “Fear is the path to the Dark Side. Fear leads to anger, anger leads to hate, and hate leads to suffering,” Yoda in “The Phantom Menace.”
In other words, don’t be a shark or act like a shark. Don’t reduce accessibility to a checklist. This tends to leave people out of it. Instead, be a dolphin. They collaborate and communicate.
Resources
- Air Carriers Access Act
- AI hiring tool guidance
- Dear Colleague letter from the Department of Education about higher education digital accessibility
- Lainey Feingold website
- Laura Carlson’s web design references
- Los Angeles Community College District case
- Maine digital accessibility and usability policy. Refer to Section 5.1.
- Telehealth accessibility
- Virtual reality captioning case
Video Highlights
- What is digital accessibility?
- Legal framework for accessibility
- Federal agency guidance and regulations
- Implementation
- Accessibility legal cases
- Least favorite parts of the legal landscape
- How to stay ahead of the law
- Q&A with Lainey
Watch the Video
Bio
Lainey Feingold is a disability rights lawyer, author, and international speaker 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 dozens of companies and public sector organizations on accessibility initiatives since then.
Lainey is the author of Structured Negotiation: A Winning Alternative to Lawsuits (2nd Edition 2021). She was named a Legal Rebel and Problem Solver of the Year by the American Bar Association in 2017 and twice received a California Lawyer Magazine Attorney of the Year Award.
Lainey serves on the Board of Teach Access, a nonprofit collaborating with education, industry, and disability advocacy organizations to bridge the accessibility skills gap. Learn more about Lainey at LFLegal.com.
