Q&A with Lainey Feingold: Digital Accessibility Legal Update

January 5, 2023 BY REBECCA KLEIN

Digital Accessibility Legal Update with Lainey Feingold [Free Webinar]


A lot happened in the digital accessibility legal space in 2022! Have you kept up?

At the end of every year, we’re always thrilled to welcome back Lainey Feingold for her annual digital accessibility legal update.

Lainey is an internationally recognized disability rights lawyer and is widely known for negotiating landmark accessibility agreements. Lainey joined us on Dec. 8, 2022, to present her 2022 Legal Update on Digital Accessibility, in which she gave us the full scoop on digital accessibility in the legal space over the last year.

In this blog, we’ll briefly recap Lainey’s presentation and share her answers to audience questions.

The Current Digital Accessibility Legal Landscape

In her digital accessibility legal update, Lainey spoke about what digital accessibility is, why accessibility is a civil right, current and proposed laws and regulations, best practices to stay ahead of the legal curve, and more.

Lainey explained digital accessibility as a bridge connecting disabled people to technology and content. On one side of the bridge exists people with disabilities, and on the other side of the bridge exists all forms of technology. Our work in accessibility is to build a bridge between them.

 

What’s on the horizon?

Besides offering an overview of existing accessibility laws and regulations, Lainey covered many proposals made within the past year:

Current proposed laws:

  • The Proposed Websites and Software Applications Accessibility Act
  • Communications, Video, and Technology Accessibility Act (CVTA)
    • The CVTA is a proposed update to the CVAA. If enacted, it would strengthen and expand captioning and audio description standards and requirements.

Current proposed regulations:

  • Proposed Kiosk Regulations
    • Kiosks, also called self-service transaction terminals, are often inaccessible to people with disabilities. To be considered accessible, kiosks must include audio jacks, tactilely discernible input controls, and screen reader software (speech output), among other requirements. In September 2022, the United States Access Board issued an Advanced Notice of Proposed Rule Making. Check Lainey’s website for updates.
  • Proposed Title II Accessibility Regulations
    • In July 2022, the Department of Justice (DOJ) announced its intent to establish new regulations providing technical standards for website accessibility under Title II of the ADA, The DOJ intends to publish its Notice of Proposed Rulemaking by April 2023 to amend its Title II regulation and to receive public comment by no later than June 2023.
  • Department of Education 504 Regulation Update

Current guidances:

  • Department of Justice Web Accessibility Guidance
  • DOJ and EEOC AI Hiring Tool Guidance
    • The DOJ and EEOC issued guidance on artificial intelligence in hiring tools in May 2022. The guidance explains how algorithms and artificial intelligence can lead to disability discrimination in hiring. Additionally, the guidance includes employers using another company’s discriminatory hiring technologies, which touches on issues of procurement. Accessibility must be baked into a company’s procurement processes.
  • HHS and DOJ Telehealth Guidance

Lainey also mentioned updates to certain digital accessibility lawsuits. These included lawsuits around education, employment, kiosks, podcasting, and virtual reality. Watch the webinar to learn more about these cases.

Answers to Audience Questions

Please remember: Nothing Lainey said in this presentation, and none of her responses to follow-up questions, is legal advice. In her 3Play Media webinars, Lainey offers general information about the law as it relates to digital accessibility. If you have specific legal questions about how the law impacts you or your organization, then you should contact a lawyer. Lainey also does talks and trainings for individual organizations that are more tailored to specific industries and sectors and the goals of presentation organizers. Visit Lainey’s website for more information.

Questions have been edited for brevity and clarity.

Is it appropriate to cite the ADA in accessibility policy or procurement requirements?

Lainey Feingold: Yes. Accessibility and Procurement policies can reference the ADA because the law as currently written prohibits disability discrimination and requires effective communication. Digital content cannot be effective for disabled users if it is not accessible. Reference to the ADA alone, however, is not enough. Policies are best when they talk about why the policy is being implemented, the accessibility standard being used, who to contact in the event of barriers, etc. The Web Accessibility Initiative of the W3C has a useful resource on accessibility statements, which are an example of a public-facing accessibility policy. Internal policies require more details, including who is responsible for pieces of the policy. (And more than one policy may be needed, depending on the size of the organization. For example, marketing and communications may want their own accessibility policy.)

Where can we find the agenda or plans of all federal agencies? I’m hoping to find info on when and where the agencies plan to make their online content accessible.

Lainey Feingold: You can find the Spring 2022 agenda here. On this page is a dropdown menu where you can choose the agency you are looking for.

I have not yet seen any accessibility progress with ADP. Do you have any updates on when their products will become more accessible?

Lainey Feingold: The settlement between ADP and the San Francisco LightHouse for the Blind is public. It is linked to the article I wrote about the ADP accessibility settlement here. The lawyers who handled the case are referenced in the article if you want to contact them.

Who’s liable for accessibility issues when it comes to purchasing software or a website?

Lainey Feingold: There is no quick answer to this question, but without offering legal advice I believe that both the purchaser and the vendor face potential liability. The 66 million dollar website lawsuit is a case against a vendor. It is scheduled to go to trial in 2023. A proposed law introduced in US Congress in 2022 would make the vendor’s responsibility more direct. Valuable resources on accessible procurement are offered by Disability:IN through its Procure Access Initiative, and the accessible procurement toolkit linked on that page. Lainey helped Disability:IN on these resources as a consultant.

Does The Proposed Websites and Software Applications Accessibility Act hold vendors accountable?

Lainey Feingold: Yes. My article about the Duckworth bill is here. It includes links to the text of the actual bill as well as frequently asked questions and a plain language summary.

Many city websites are not ADA-compliant. I live in a community in the SF Bay Area and the city site is not even close to being ADA-compliant. What gives with these civil sites?

Lainey Feingold: An inaccessible city website is frustrating. This is an issue the US Department of Justice may be interested in investigating. Information about complaint filing is on the DOJ website here.

Given the current regulations, do publicly traded corporations, who are federal contractors, have the same digital accessibility requirements as the federal government?

Lainey Feingold: Section 508 of the Rehab Act requires that the federal government buy accessible technology. You can learn more about 508 requirements on the federal 508 website. I am not aware of a distinction in this regard between publicly traded companies and those that are not.

Given the current regulations, are employees of publicly traded companies that are federal contractors treated any differently than customers of a publicly available website?

Lainey Feingold: In addition to Section 508, Section 503 of the Rehab Act has requirements about federal contracts not discriminating against disabled employees. You can learn more about Section 503 here. A pending case against the FBI by a blind employee is pending and will address the question of whether federal employees can file a lawsuit when technology is not accessible, or whether they need to focus on the administrative process for obtaining accessible tech. You can read a brief in that case on the NFB website here.

While everyone should be treated on a case-by-case basis, at what point would you recommend pivoting from an internally driven structured negotiation to a potential lawsuit? Does the extent to which ‘Reasonable Accommodations” are met impact the response to this question?

Lainey Feingold: You are right that this is a case-by-case decision. So much of the answer is about trust and good faith, about relationships and communication. Sometimes change takes longer than we want, but if we can trust that progress is being made, or the groundwork is being laid for progress, we can be more patient. Sometimes trust has been broken. Sometimes the lack of access impacts financial privacy or healthcare and the time frame to wait for resolution becomes contracted. My book talks about these types of considerations. Learn more about the book, Structured Negotiation, a Winning Alternative to Lawsuits here.

“Reasonable accommodation” is typically a word used in connection with employment issues. Any progress (such as working out a reasonable accommodation that is satisfying for the disabled employee) may convince a negotiator to stick to the process a little longer to resolve other issues. Again, this is a case-by-case decision.

Once a Structured Negotiation is completed, such as the one with Major League Baseball, what system is in place to ensure ongoing conformance with the Structured Negotiation?

Lainey Feingold: The Structured Negotiation settlements I’ve been involved with have processes in place to ensure that obligations are met while the settlements are active. These may include reporting, meetings, a system to resolve disputes, etc. Most of the agreements I’ve negotiated over the years are public (as transparency is important) and can be found on my website on the Settlements page. As with cases that are settled after a lawsuit is filed, agreements reached in Structured Negotiation have a term – a length of time they are active. If things fall apart after that, different strategies may be useful, including informal advocacy or a new Structured Negotiation. A lawsuit could also be filed, but my clients and I have not had to go that route. Again, what to do after the agreement is signed is something I write about in my book, Structured Negotiation, a Winning Alternative to Lawsuits (available in accessible digital format, in BookShare, and in paperback). For problems with companies I’ve negotiated agreements with, people can contact me to discuss possible strategies to resolve the problems. I can be reached through the contact page of my website.


Watch the full webinar below!

 

This blog post is written for educational and general information purposes only, and does not constitute specific legal advice. This blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

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