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Lainey Feingold on What the ADA and Digital Accessibility Laws Look Like Going into 2018

  • text: understanding digital access law with Lainey Feingold. Image: Lainey Feingold's photo

    In the current digital accessibility landscape, there is both a lot to keep up with and a lot at stake.

    The number of recent cases involving the Americans with Disabilities Act (ADA) alone is overwhelming enough.

    So, to give readers an idea of where digital accessibility law is heading in the new year, how the courts are interpreting old laws for new technologies, and what to keep in mind for accessibility at your organization going into 2018 and beyond, we employed the help of internationally-recognized disability rights lawyer Lainey Feingold.

    In her recent 2017 Legal Update webinar on digital access cases in the United States, Lainey demonstrates how websites and digital technology have essentially always been under the umbrella of the Americans with Disabilities Act (ADA) and other longstanding disability rights laws. As many courts are recognizing, these technologies have become integral for people with disabilities to fully and equally participate in contemporary society.

    Here are some of our favorite quotes and anecdotes from Lainey’s presentation that make pre-internet accessibility laws easy to understand in today’s technological context and give us a glimpse into the future of IT accessibility as a whole:

    On the ADA’s application to today’s tech…

    text: Web regulations are inactive... but the ADA isn't!

    Titles II and III of the ADA prevent discrimination on the basis of disability and require equal access to public accommodations for people with disabilities.

    Over the past seven years or so, there have been a lot of efforts in federal government to try and add language to the ADA that specifies how the law applies to new technology.

    But as Lainey points out, those efforts are essentially moot because the ADA was written in 1990 with the intent to keep pace with emerging technologies. And a growing list of court decisions support this claim:

      Between 2010 and 2017, there were no regulations put out under either Title II, state and local government, or Title III, private sector. And there aren’t going to be any because they are officially on inactive status. So the question is, does it matter? …The ADA already embraces participation and inclusion and prevents discrimination. And so, therefore, the ADA already requires websites to be accessible.

      …People say, “Oh, no! There are no regulations. We don’t have to do anything” …A couple scattered courts are saying, “that’s true.” But most courts are saying “that’s not true.”

    Her one-liner for remembering this is “Web regulations are inactive… but the ADA isn’t!”

    A 96 year-old judge sides with web accessibility…

    text: A cruel irony

    In the Andrews vs. Blick Art Materials case, the presiding judge — who happens to be 96 years old — allowed a class action lawsuit against the company to move forward. His reasoning was simply that the ADA was always meant to make the world accessible to people with disabilities, stating:

      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.

    Accessibility is about creativity

    text: Don't put your accessibility coordinator in the law office

    It’s a pretty simple concept. When you consider the 56 million Americans with a disability who are less likely to use digital technology because it is not accessible, you can reach a huge demographic if you embrace accessibility at your organization.

    So, Lainey suggests, if you’re going to hire someone like a web accessibility coordinator at your organization, think of it as an opportunity to get creative and innovative. Let them work with marketing, IT procurement, developers, and other departments to bake accessibility in at “step one” of all new projects and initiatives so that you’re reaching the hundreds of millions of people worldwide who have a disability. As Lainey says, don’t just put the accessibility coordinator in “the law office”:

      One thing I like to say is don’t put the web accessibility coordinator in the law office because accessibility, again, should be a motivator. It’s creative. It’s a way to bring more people into your business and more students into your school.

      And if you stick it in the law office or you get too many lawyers involved, it’s going to become something of a checklist and a compliance matter and something that’s constricted and narrow. So decide where to put your web accessibility coordinator.

    The Big Picture

    text: the legal roads are leading to access

    Lainey’s presentation covered the big wins, losses, and developments of many different digital access cases from around the country and over time.

    For digital accessibility advocates, the path of progress across the legal landscape is often dizzying. But from Lainey’s perspective, from working in digital access law since the 1990s, the road will always eventually lead toward access. Part of the reason she makes this claim lies in the observation that corporations are learning an important lesson — making tech accessible is not only legally required but also sensible and cost-effective:

      Don’t be distracted by the losses because the legal roads are leading to access. […] Kind of a bumpy road, but that’s how it’s going to be. It shouldn’t be preventing your policy, your departments, your web developers from doing accessibility. Because even in these few cases where the companies are winning, they’re spending a ton of money fighting accessibility when accessibility has [so many] advantages…

      You might have one court district that says, oh, websites need a nexus, but you’re running your websites in all 50 states. So the idea of fighting it instead of putting money into building accessibility doesn’t make sense to me. So again, spend money on access, not on lawyers who have a pile of money.

    About Lainey Feingold

    Lainey Feingold works primarily with the blind community on technology, digital, and information access issues. She is internationally recognized for negotiating landmark accessibility agreements, and in 2014 and in 2000, she was honored with a California Lawyer of the Year Award. Her book about Structured Negotiation was published in 2016. And this year, Lainey was the individual recipient of the John W. Cooley Lawyer as a Problem Solver Award, and was selected as one of 13 Legal Rebels for 2017 by the ABA Journal.

    Follow Lainey’s blog at LFLegal.com.

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