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Lainey Feingold Shares the 2017 Legal Update on Digital Accessibility Cases

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    Lainey Feingold is an internationally recognized disability rights lawyer and is widely known for negotiating landmark accessibility agreements. Lainey joined us to present a webinar entitled, 2017 Legal Update on Digital Accessibility in which she gave us the full scoop on digital accessibility in the legal space over the last year.

    Accessibility Through a Legal Lens

    Lainey Feingold provided a really powerful explanation as to why accessibility is a legal matter, reminding us that accessibility is about the right to information and the right to participate. Without making the digital world accessible, people are left out and excluded – that is discrimination.

    Information is key to participation in all different aspects of life and society including education, transit, health care, employment, entertainment, and so on. Without accessibility, individuals don’t have an opportunity to be an equal – whether that’s an equal student, shopper, patient, or customer.

    A Foundation; A Motivator

    Often, the law is thought of as something to fear. In accessibility, we are better off if we think of the law as something that is motivating us, rather than something to fear. With the understanding of why accessibility is such an important legal concern, it’s much easier to start thinking about the law as a foundation and a motivator. Trying to understand and be in compliance with the laws should help us do what we already know is right and create content and information that is available for all. Accessibility laws are meant to guide us to do so.

    Think of the law as a foundation. With a solid foundation you can build anything you want. Individuals that work in the accessibility sphere utilize this foundation and put it to the test to ensure that accessibility perseveres. The equation for building accessibility really is quite simple:

    Accessibility Equation: foundation plus disability rights and accessibility advocates, plus strategy, equals an accessibility win.

    The laws and regulations provide a solid foundational structure. Add in the advocates who use the laws and regulations every day, and the strategies, too. The sum of it all is accessibility winning.

    US Accessibility Laws

    With the laws being the base of the equation, understanding exactly what the laws say and what they mean is crucial. In the United States, we have federal laws – the ADA and the Rehabilitation Act, as well as state-specific laws.

    The fact that there aren’t regulations is no excuse for anyone to be ignoring accessibility.

    Americans With Disabilities Act

    The ADA requires effective communication of information, and is meant to broadly protect the civil rights of individuals with disabilities. However, the ADA Was passed in 1990 before the internet was really around. Because of this, the ADA doesn’t have web regulations that specifically require websites to be accessible or tells people precisely how to do that.

    In 2010 the Department of Justice said they wanted to add regulations to the ADA, but nothing ever came of that. It has since been put on inactive status. However, that does not mean that the ADA doesn’t require web accessibility. Even though it would be helpful to have a specific regulation, when we think back about digital accessibility and the fact that it’s a civil right to have equal information and participation, the ADA unarguably covers web accessibility. The fact that there aren’t specific regulations or a “how-to” is absolutely no excuse for anyone to be ignoring web accessibility.

    Rehabilitation Act

    Section 508 was just refreshed this year (going into effect beginning next year) and focuses on federal spending. The most significant aspect of this refresh is that it officially adopts Web Content Accessibility Guidelines (WCAG) 2.0 AA as the standard for both websites and electronic documents.

    Sections 501 and 503 of the Rehabilitation Act govern federal employment. And with Section 504, anything the federal government is going to spend money on has to be accessible to people who are disabled.

    Section 1557

    There’s another specific regulation in the Affordable Care Act – Section 1557. This requires that health care programs which utilize technology are accessible to all individuals including those who are disabled.

    The Foundation With the Lawsuits Is Strong

    There have been many web accessibility lawsuits over the last few years, and many which are still pending. There was the case with Target, where ultimately the decision was that a website had to be accessible, only if it had a connection to a physical place (a nexus), which Target’s website did.

    On the contrary to this, was the Netflix case. Netflix, an online video streaming service, doesn’t have a connection to a physical place. In this case, Judge Ponsor did not agree with the nexus rule and decided: It would be “irrational to conclude” that “places of public accommodation are limited to actual physical structures.” Therefore, Netflix ended up captioning all of their videos. This was a huge win for the foundation of web accessibility!

    Other foundational lawsuits that are leading us in the right direction include a case with Miami University in Ohio, several cases about voter information and accessible ballots, and a case with Scribd – another company that doesn’t have a connection to a physical place. Other pending lawsuits include:

    You Win [Most], You Lose Some

    There have been four new wins over the last year. There was a significant case against Florida grocery store chain, Winn-Dixie. A judge argued that they would not be throwing the case out of court. This led to a trial, which was the first trial under the ADA about web accessibility, and since the website has a connection to a physical place, it must be accessible.

    Blick Art Materials was a long decision. In this case, a 96 year old judge gave an extraordinarily powerful take on what web accessibility means. He wrote, “Today, internet technology enables individuals to participate actively in their communities and engage in commerce from the comfort and convenience of their home. It would be a cruel irony to adopt the interpretation of the ADA espoused by Blick, which would render the legislation intended to emancipate the disabled from the bonds of isolation and segregation obsolete, when its objective is increasingly within reach.”

    Two other wins include Hobby Lobby and Five Guys. But, of course, with several wins, comes at least a few losses. In the case of Domino’s pizza, they were successful in convincing a judge that the case should be thrown out of court because there are no regulations. The other cases said it doesn’t matter that there are not regulations because the Justice Department has been saying since the 90s that the ADA covers websites.

    The Big Picture

    It would be impossible to keep up with every single lawsuit. It’s important to keep in mind several key takeaways from recent cases – both wins and losses. Most cases are being initially won by the plaintiff and then settled.

    1. Some judges rule a connection to a physical place is needed in order for websites to have to comply with accessibility laws.
    2. One court said that regulations are needed for web accessibility to be required, however most courts are saying that a lack of regulations does not mean you can just skip out on web accessibility altogether.
    3. The final takeaway is to not be distracted by the losses. Overall the the legal roads are leading to access. There are going to be some bumps along the way, but the truth is that even in cases which result in a loss, they’re still spending a lot of money. The bottom line is put your money into access, don’t spend it on lawyers.

    While there’s still a lot of work to be done, there’s a lot that we can point to in the quest for greater accessibility. There are 1700 and counting complaints filed in the department of education, but school districts are settling claims and are increasingly building accessibility in. All of these cases will be used to set precedent to keep moving forward in a direction that prioritizes and increases accessibility.

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    Watch the full webinar here!

     

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