Q&A with Legal Rebel, Lainey Feingold
Updated: January 4, 2018
2017 has been a turbulent year for digital accessibility.
Here to give us the full report is Lainey Feingold, an internationally recognized disability rights lawyer.
Since her last webinar with us in 2016, there have been many key cases, government activity, and important developments that are important to know as a navigator in the digital accessibility sea.
Below is a snippet from the webinar Q&A, but make sure to watch the full webinar entitled,”2017 Legal Update on Digital Accessibility Cases with Lainey Feingold.”
What strategies would you suggest when you’re met with the perception from a supervisor or upper administrator that claims ‘we don’t need to address accessibility issues until we get a complaint?’
LAINEY FEINGOLD: I think one of the best ways to change people’s mindset is to get them in a room with disabled people. In fact, the judge in the Blick Art Materials case in October is going to have a technology day so people can come to court and he can learn more about the technology.
So I think one of the reasons structured negotiation has been such a successful method in this space is because the companies, the government agencies, we’ve worked with have been able to establish relationships and I started doing this work with talking ATMs and I could see the light bulbs go off in the bankers heads when they saw a blind person try to use an ATM that didn’t talk. And it takes it out of the abstract. So that’s one possibility.
The other thing is it just costs more money to wait because if you do get the lawsuit, not only do you have to hire your own lawyer to respond, and hopefully you hire a lawyer who responds in a collaborative way, but you have to pay that lawyer. But under the Americans with Disabilities Act and other discrimination statutes, if the company or the school loses the case, they have to pay the lawyer for the disabled person. That’s called fee shifting, and that’s how it works for all what they call protected classes, like race discrimination, gender discrimination. So the legal costs alone are reason enough to start being proactive.
If an organization hires an outside developer to make their website, does the legal onus lie primarily on the organization or the developer?
LAINEY FEINGOLD: That’s a third party vendor issue, as in the in Winn-Dixie where the judge said that required third-party developers to make the site accessible. I had a situation that I was working on a case once and they hired someone to build the mobile app and they had some language in their agreement, their contract, that said deliver an app that meets the law. And the app was totally inaccessible and they had to go back. And sometimes, there are even lawsuits.
I think the most important thing here is to make sure your contract is very specific about what you want. I got a new website, and I love my developer at Purple Pen Production, Natalie MacLees.
“I think the most important thing here is to make sure your contract is very specific about what you want. ”
She’s a real accessibility expert. And so we just built into our contract that I wanted the site to meet WCAG 2.0 AAA because I’d like to be a model. Most companies use AA.
I wanted the site tested by disabled people throughout the process. So we had a specific thing. It’s very important for it to be very specific. Have it tested before it’s delivered, have it tested by disabled people. You can’t just assume. You have to really spell it out.
There are many products that are considered WCAG 2.0 level AA compliant, or claim to be, but may not be accessible to all users. This is a significant issue that undermines efforts to persuade versus threaten. Do you have any advice for this?
LAINEY FEINGOLD: I think that the stamp of approval for WCAG 2.0 AA has to go hand in hand with user testing. Like we say, oh, disabled people or clients or users, depending on what space you’re in, has to go hand in hand because sometimes it does happen that you can technically meet the standard and have usability issues.
Also, it’s really important to have an accessibility information page and a fluid ongoing process because maybe something’s accessible, maybe it gets broken. Maybe you don’t know until somebody uses it and has trouble. So you really have to have it be an ongoing process.
And I think we just have to do a better job of holding the vendor’s feet to the fire. The ADA specifically says that you can’t discriminate either directly or by contract, or other, I think they call it, method of administration.
So the ADA, the law, the Brick foundation says you have to make sure that your contracts don’t end up having you be a discriminator. So we just have to hold the vendors’ feet to the fire more on that. Write it really specifically in the contract.
I’m not a contracts lawyer, and I don’t represent companies. This isn’t legal advice, but it seems to me that the more specific you are on what the vendors are delivering, the more legal rights you’ll have if the vendor screws up.
Can you sum up the Section 508 refresh going into effect beginning next year and who it affects?
LAINEY FEINGOLD: The 508 refresh has to do with federal procurement. One of the most significant aspects is that it did adopt WCAG 2.0 AA for both websites and electronic documents.
There’s a website, section508.gov, where you can get all the details and they have a lot of implementation issues around that. But it’s about federal procurement. It’s not about federal spending. It’s not about the private sector. It’s not about states. It’s about what the federal government buys.
What are your thoughts on caption quality? Are automatic captions considered accessible?
LAINEY FEINGOLD: The basic legal requirement is for effective communication.
So again, it’s not some abstract thing. [With automatic captions one might ask] are we off the hook if we do automated captioning? But does it effectively communicate what’s in the video? And too often, like YouTube auto captions, they just don’t do that. Again, it’s not a checklist. It’s about real people and it’s about real communication.
“If you see big differences between what’s being said and what’s in the captions, then you know it’s not good enough.”
I think it’s very important to look at it and say, would this be effective for me? If you’re not disabled, would this be effective for me? If you see big differences between what’s being said and what’s in the captions, then you know it’s not good enough.
Can you talk a bit about what was covered in the MLB accessibility settlement?
LAINEY FEINGOLD: The agreement is public on my website under the Settlements tab. [With the MLB case] we had one agreement and then we had another agreement.
Let me just say the end of the story is Major League Baseball is now a leader in captioning sporting events. The agreement itself put captioning off for a later date and wasn’t a specific date, it was a requirement to begin and to look into it, but not a specific requirement.
But at the end of the day, they did do the captioning and they really are a leader in the field. I think they actually offer their services in this to other sports giants that all should have accessibility.
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