Lainey Feingold Q&A: Web Accessibility Legal Trends in Higher Education & Enterprise
In one of the highest attended webinars of this year, we were very lucky to host disability rights lawyer Lainey Feingold who presented on web accessibility trends and updates from 2016.
Lainey Feingold is internationally recognized for negotiating landmark accessibility agreements with large corporations like Bank of America, Major League Baseball, and Walmart. She is also a pioneer of the dispute resolution method known as structured negotiation, and recently authored the book Structured Negotiation: A Winning Alternative to Lawsuits available now via the American Bar Association.
Our audience was full of great questions about web accessibility law as it applies to higher education and the corporate world. Read on for condensed highlights from the Q and A session, or watch the webinar entitled, 2016 Legal Update on Digital Accessibility Cases.
“ I […] think that we have more and more disabled students, more and more people growing up in the age of the ADA, recognizing their rights. ”
What would you say is the biggest change regarding the law and post-secondary education in the recent year?
LAINEY FEINGOLD: I myself haven’t done higher ed cases. I do know [about] the Department of Education’s investigations. There was a report out that 350 complaints or investigations opened have been filed. So I think this just heightened attention.
Higher education institutions are covered by the ADA either if they’re private or if they’re [public].
The ADA has required accessibility for a long time. But obviously, there’s heightened attention to it. All of you wanted to be on this webinar. Some of that has to do with the new players coming in and having a different approach and filing more demand letters. I also think that we have more and more disabled students, more and more people growing up in the age of the ADA, recognizing their rights.
I certainly see that in law school. When I started in, there were not that many blind lawyers. Now there are more and more younger blind lawyers, who are insisting on their rights, who are doing this work both for themselves and for clients. So I think that those all contribute to the heightened awareness of this.
Do you think companies see accessibility as a hindrance to developing and marketing new products?
“ [O]ur job is to say, we are in a country that recognizes that not everybody accesses digital the same way. Not everybody sees a screen. Not everybody hears video. Not everybody has hands to use a keyboard. ”
LAINEY FEINGOLD: I hope not. I hope not. It shouldn’t be. I think that’s all of our job[s]. I think all of us, everyone on this webinar is a champion in your own way, or else you wouldn’t be here. And our job is to say, man, we are in a country that recognizes that not everybody accesses digital the same way. Not everybody sees a screen. Not everybody hears video. Not everybody has hands to use a keyboard.
And that can encourage creativity, and that can enhance the options and the wide availability of whatever is being developed. And there’s a strong message that comes the other way. “Oh, my god, accessibility – it’s a burden, and the law is coming down” and blah, blah.
But it’s our job to see it in a different way, and that’s why I like doing these presentations, because it makes me sad when the law is seen as a real negative when I know from 20 years of working in collaboration in this space that when we do bake in accessibility, companies like it. They’re excited. Major League Baseball took the baton and ran with it. Bank of America, Weight Watchers, so many of the companies that we’ve worked with, when they understand it from the disabled person’s perspective and not as some force outside that is trying to interfere with their business, they like it. They like it.
On our campus, we have two camps. One camp is not as concerned about making the deadline, and the other is terrified. Do you think it’s better to wait for the discovery from the DOJ or to take proactive action now to prevent DOJ discovery?
“ I think when you are proactive, and you meet your students with accessibility, and you think of it as a process of inclusion and doing well by your students, people are going to want to do it. ”
LAINEY FEINGOLD: It’s too bad we don’t have a poll, because I would say, “what do you think I’m going to say?!”
Everyone would know that I’m going to say, be proactive. Be proactive.
I just don’t understand, honestly, in this climate where you have strong government, strong advocates. Each advocacy effort that’s undertaken sparks more […]. I think the Harvard and MIT lawsuits also elevated higher ed accessibility issues.
I don’t know what it’s called in higher ed. In law, it’d be malpractice, not to be proactive. But again, I’m not giving legal advice. But I think when you are proactive, and you meet your students with accessibility, and you think of it as a process of inclusion and doing well by your students, people are going to want to do it.
“ I don’t know what it’s called in higher ed. In law, it’d be malpractice, not to be proactive. ”
When you think of it as, oh, let’s wait for the DOJ to knock on our door and fight them, people are not going to want to do it. It’s human nature, which is why I like structured negotiation. I talk in the book about when you create a collaborative environment, everybody tends to be collaborative. It’s hard to be confrontational when people around the table are trying to work out a solution. And that’s what I’ve seen doing this work in this way for 20 years. That’s what I try to convey in the book, how we do that. So I’m all for proactive.
Are there settlements or decisions which speak specifically to the accessibility of marketing materials?
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LAINEY FEINGOLD: I’m not aware of anything where that is called out. [In] structured negotiation, we don’t file a legal complaint. We don’t file a negative press release. And I talk about it in the book. I have a chapter on media.
Well, our website is really just a marketing tool. We have a vendor. We don’t really consider it information like online banking or health, explanation of benefits. But in fact, it was content, [and] these days the line is very blurred [around] content marketing.
The more research that I conduct about technology accessibility, the more information I find about visual or auditory impairments. Are there additional needs that we should also be considering for individuals with differing abilities, not just hearing and vision?
LAINEY FEINGOLD: Yes. That’s a very good question, and a good place to start on that is the WebAIM website, webaim.org. They have a really good section on how people of different disabilities use the internet, so just two quick things.
There’s a woman I know, who doesn’t have hands, and she gets super frustrated by Dragon Dictate and without an accessible website and thinking about how people are using speech input are using the site. That’s one issue.
And there’s a lot of work going on right now for cognitive disabilities. The Web Accessibility Initiative has a cognitive task force. The Cognitive Disability Task Force is really looking at ways to make web content – and honestly, I think this is going to help people with and without disabilities – simpler, easier to access. And there’s a book by a law professor in New York named Peter Blanck called eQuality, about the law and cognitive disabilities and where that might go.
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