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2018 Legal Update on Digital Access Cases with Lainey Feingold [TRANSCRIPT]

ELISA: Hi, everyone. We’re about to get started. Would you all mind just raising your hand to let me know that you’re hearing all right? Great. Thank you.
Thank you for joining this webinar, 2018 legal update on digital access cases with Lainey Feingold. We’re about to get started, and I just wanted to let you all know that this webinar will be recorded and available for replay after the webinar. We’ll be having about an hour and 15 minutes of presentation time with some time at the end to answer questions. So please type in your questions to the Q&A tab throughout the presentation, and we’ll be compiling those at the end. And this webinar is also being live captioned, and you can view those captionings by clicking on the link that was just sent out in the chat window.
So my name is Elisa. I’ll be moderating today. And I’m joined by Lainey Feingold, who has a wonderful presentation prepared for you today. So with that, I’m going to hand it off to Lainey, and we can get started.
LAINEY FEINGOLD: OK. Now I just have to remember. I know to share my screen. OK. All right. OK. Almost there. And go. OK.
Thank you, 3Play Media. I’m glad to be doing this update, which I did last year around this time, and a lot has happened. I have up here my website, which is LFLegal.com. I share a lot of legal updates under the Legal Update tab, as well as posts on various aspects of digital accessibility, as well as structured negotiation.
I also have my Twitter up here, which is @LFLegal. I am a big fan of Twitter for accessibility issues. There is a lot of great people in the global community on Twitter that very generously share information. So I recommend being on Twitter and following accessibility people, including myself, which again, I’m @LFLegal.
So the not so fine print of this presentation is that what I’m going to say today is not legal advice. I know everybody is looking for legal advice because there is so much activity in the legal space. I do these types of presentations and talks and writings to share information. I sort of see myself as one of many people who are a bridge between the legal space and the real work and accessibility that gets done by many, many, many of you in many, many different roles on this call.
I know there’s a lot of people listening to this webinar, which I appreciate. You’re all coming at it from different directions. You all have different roles. You’re all interested in the law for different reasons. But just know that this is basic information. If you think you have a legal claim, or if you get hit with a lawsuit, or if you’re an organization who wants to do better and know your legal obligations, this is not legal advice. You need to find a lawyer.
So the goals of this webinar is to help you make sense of the legal landscape, which is changing rapidly, to help shift from fear to motivation. Those of you who know me or who have heard me speak before, I really don’t like how the legal space has turned into a space of fear for many people. And I like to do these webinars to try to dispel some of that fear and help people see civil rights law as really a motivation. As a motivation for accessibility.
As I said, you all have different roles. I wish we had more time, and I could find out what roles you have and try to speak directly to them. But I know there are lawyers on the call as well as developers and policy people, accessibility experts, managers, designers. So whatever your role is, I’m hoping you’ll have a takeaway that the law can help you advance accessibility in your role.
And I also am hoping to help you make sense of what’s going to happen tomorrow. Because I can guarantee something will happen tomorrow that I will not discover today. So I use this image of put the law in your pocket.
We used to have this picture with regular tools, like a hammer and a screwdriver [INAUDIBLE] people on the call aren’t using those tools. They’re probably using their iPhone. So the law can go in your pocket too, no matter what your role, and hopefully, you’ll take some away that will be helpful to you.
We’re going to talk about accessibility as a civil right. We’re going to talk about the legal foundation for that. We’re going to talk about how the law is being used. And we’re going to talk about some best practices coming out of the legal space.
So we’ll start with accessibility as a civil right. So why is the law part of digital accessibility to begin with? Why are you all here listening to a lawyer, and why is everyone thinking about accessibility, which has to do with inclusion and design and coding and development and so many other things. Why is the law part of it?
Well, the law is part of it because accessibility is a civil right of disabled people. Civil right, human right, in different countries, different terms are used for this purpose. Pretty interchangeable.
I am illustrating this slide with a picture of a demonstration leading up to the passage of the Americans with Disabilities Act in 1990. And a man named Tom Olin, who is really one of the key documenters of disability rights history in the United States. He took this photo, and Senator Tom Harkin is in it. And it’s led by people using wheelchairs. There’s a service dog there.
And there’s two signs being held up. One is “we shall overcome,” and the other is “access is a civil right.” So this is just illustrative of the fact that accessibility is a civil right, like voting rights and many other rights that we have in the United States, and we have to continually be fighting for. Accessibility is one of those. And I love this picture. I updated it from a picture I usually use. So this one isn’t as familiar.
The woman in the wheelchair carrying the sign that says “access is a civil right,” in 1990, she wasn’t talking about access to web or mobile technology. She was talking about access to transportation, to employment, to housing, to all the issues that are embodied in the ADA. And now digital access is also embodied in the ADA, as we’ll see.
So accessibility is a civil right, and that’s why the law is in this space. Not because of some hammer and random idea of imposing obligations, but because accessibility is a civil right. And disabled people have legal rights. Accessibility is about, as I say, the civil and human rights of disabled people, disabled people with legal rights.
So instead of thinking, when you hear about law and lawsuits of plaintiffs, I really encourage you to think about the people behind legal activity, students, shoppers, patients, customers, tax payers, investors, employees and applicants, sports fans, citizens, voters, diners, people go to restaurants. People want to eat. And homeowners. And whatever your role is, you’re thinking of the people that you’re serving in a certain way. You’re either thinking of them as users or students. Somehow people get into the law, and they’re just thinking plaintiffs.
And in my book, which is called Structured Negotiation, a Winning Alternative to Lawsuits, which is about how I’ve worked in the accessibility space for the last 20, almost 25 years now, without doing lawsuits, but using these same laws to enforce civil rights. I talk about the word “plaintiff” has roots in a French word that means wretched complainer. And I think that carries out in how people are thinking of the law now, instead of thinking about civil rights enforcement.
And we’ll talk in a minute about how people use different strategies. But the core value of the Americans with Disabilities Act and the reason that law is in the accessibility space is because accessibility is a civil right, and there are people enforcing it. People with disabilities who need accessibility.
So I have a slide here with two people on a computer, and they’re thinking. And what are they thinking about? They’re thinking about their exact [INAUDIBLE] selves. They’re designing, developing, planning for people who look like them, who use technology like them.
And the best way to stay ahead of the law in all the work you’re doing, whatever your role, is to think in your work about people who might not necessarily be like you. People who are blind, veterans who use wheelchairs. These are all cartoon graphic images of people with disabilities. One is deaf. There’s a woman with a hijab in a wheelchair.
And so it’s important, no matter what your role is, the best way to stay ahead of the law is when you’re doing your work, remembering that all the people that you are serving are not necessarily like you are in terms of how they use technology. So with accessibility, all those people, the students, et cetera, are able to participate, are included, and have equality. And without accessibility, people are on the outside looking in, which is why I used this picture of a sad looking woman looking into a window from the outside.
Without accessibility, people are left out, excluded, and discriminated against. And that is why the law is part of this. And so if you get wrapped up in a legal conversation, or you don’t like– yes. I’m not saying every lawsuit being filed now is something I support. I do not. But the core, the core of it is inclusion in the civil rights of people not to be discriminated against by being excluded.
And I’ve been saying this for years. And now, with more and more cases, we’re seeing more and more judges agree with it. And I don’t usually like to put text on my slides, but some of these court decisions are really so beautiful that are coming out of the accessibility space, and I just want to put one quote in here for you.
“Today, internet technology enables individuals to participate actively in their community and engage in commerce from the comfort and convenience of their home. It would be a cruel irony to adopt the interpretation of the Americans with Disabilities Act–” that in this case was against Blick Art Supplies. They were adopting an interpretation “which would render the legislation that was intended to emancipate the disabled from the bonds of isolation and segregation obsolete when its objective is increasingly within reach.” I just love that, that a judge can recognize that it would be a cruel irony to have an interpretation of the ADA that doesn’t cover websites or says there has to be regulations, whatever, because it’s the opposite of what the ADA is about.
And the judge who wrote this quote in the court order about Blick, which you can find on my website, is Judge Weinstein. He’s a federal judge in New York. And he’s 96 years old. And I like saying that, because he’s 96, and he gets it. We all need to get it too.
Accessibility is also in the legal space because it’s about confidentiality, and security, and privacy, and the right to information. And if you’re designing or developing or deploying websites or mobile apps or technology or educational products that aren’t accessible, you are denying people with disabilities confidentiality, security, privacy, and the right to information. Imagine having to ask for help to access your confidential medical records or to look at an app that has very confidential information about your health or your finances. So this is another reason that accessibility is in the legal space.
No matter what your role, you have a choice. You can either do your work so it opens the door to inclusion and participation, or you can do your work that leaves the door shut. And these are the values behind all the laws in the digital accessibility space.
So that’s the civil rights context. That context is baked into the legal foundation that is supporting all the legal activity that’s been happening and, in fact, has happened for many years. Like I said, I started in digital accessibility in the mid 1990s, working on talking ATMs using the Americans with Disabilities Act to support the rights of blind people to independent access of their money. So there’s a lot more happening now, but the legal foundation goes way back. So we’re going to talk about the legal foundation next that incorporates these concepts.
The foundation is strong, which is why I always use this illustration of a very strong foundation being built. Because we have laws and policies and regulations in the US that support disabled people’s rights to accessibility. Regardless of what you may think of some of the strategies being used now, the foundation is something we all really need to be proud of and motivated by. That it is good that in the United States and also in many other places in the world, there are laws that recognize that disabled people have a right to participate in the digital world.
So real quick, we’re going to do an hour and 15 minutes here. We could do five hours together. There’s just one slide on the laws that incorporate the idea of civil rights. We have the Americans with Disabilities Act. As you know, it covers the public sector, the private sector, employment. Requires effective communication.
I don’t have K-12 ed as a separate bullet point, but all schools and higher ed are either public, private, or some combination. So the Americans with Disabilities Act is a very, very strong Civil Rights Act that has proven adaptable and flexible into the digital age, and we’re going to talk about that in a minute.
We have laws about federally funded projects and programs that have to be accessible. That’s called section 504 of the Rehabilitation Act. We have laws requiring accessible considerations in employment. That’s section 501 and 503. We have Federal Procurement, which people are most familiar with on this webinar, which is section 508 of the Rehabilitation Act, that deals with federal purchases.
And all these federal laws, I know there’s so many regulations, and you have to really dig deep into knowing all the details. But the bottom line of these laws, again, goes back to the civil rights principles. If you’re going to take federal money, if the federal government is going to spend money, it can’t pick and choose about who is going to be the recipient.
Disabled people have a right to be part of federal programs, to be part of federally funded programs, to be included when federal dollars are spent. That is the core. We need the expertise and the details, but we also, all of us, need to remember that core value that you don’t spend federal money and exclude disabled people. That’s an example, when I talk about putting the law in your pocket, you don’t have to drill too deep down into subsections of statutes to know that federal money should not be spent unless the result of them spending is going to be available to everyone.
We have a separate law in the United States for airlines, that by and large, are not covered by the ADA. That requires digital accessibility. We have the 21st Century Communication and Video Accessibility Act, the CVAA. I think 3Play has a separate webinar on that, which I encourage you to look at, which has to do more with telecommunications issues and certain browser issues.
And Section 1557 of the Affordable Care Act deals with accessibility in health care expenditures. So this– I mean, just look at how many words are on this slide. Part of that strong foundation of laws and policies that recognize that inclusion is a core value. And in 2018, you cannot have inclusion without having digital accessibility.
Do we have ADA web regulations? We do not. We do have the 508 regulations, like I said, which deal with federal procurement only. And they were recently updated to incorporate the Web Content Accessibility Guidelines. We have specific regulations about the Web Content Accessibility Guidelines incorporated into the airlines accessibility act, which is called the Air Carriers Accessibility Act, if you want to look deeper into that. But under the Americans with Disabilities Act, we don’t have any ADA web regulations.
The web regulations are inactive. There’s a lot written on my website if you’re interested in the history of it. Initially, they were going to do regulations in 2010. A lot of us were involved in public comments and writing. And fast forward to 2018. We have no regulations. They’re currently inactive.
But the ADA is not inactive. I used to have the little Twitter bird on some of these slides to say this is a good thing to tweet if you’re a tweeter. Because people need to remember that the ADA web regulations are inactive, but the ADA isn’t. And this is another thing to put in your pocket.
I just want to express sympathy, empathy to people on the call who I know it would be helpful if there were regulations, and in your job, you could point to a specific section that says, our color contrast is no good. We’re violating the ADA because we don’t have this regulation satisfied. But we don’t have that now. It’s more complicated because we don’t have regulations. But the ADA is still there as part of the very strong foundation.
So the absence of web regulations does not mean that the ADA does not require accessible technology. And again, this is something that I have said for years. And you can go back in the Legal Update tab. And I used to do the legal updates a couple of times a year and do them all [AUDIO OUT] too much going on for that. And I usually just put up posts by case. But you can go back two years, three years, where I’ve been saying that the ADA is strong, even though we don’t have the regs. Now we’re starting to have judges say the same thing, which is very gratifying.
So I have a picture here of a Blue Apron mail delivery box, because that’s one of the cases where the judge said “the court will not delay in adjudicating plaintiff’s claim–” adjudicating just being a fancy word for hearing the case in court– “the court will not delay in adjudicating plaintiff’s claim on the off-chance the DOJ promptly issues regulations it has contemplated issuing for seven years but has yet to make significant progress on.”
And there is a link to the whole Blue Apron decision in a post I have on my website. You can search Blue Apron. And this was 2017. We’re practically in 2019. So we’re going on nine years.
“The court will not delay.” And that’s basically what most courts are saying. We’ll see in a minute, there’s a few exceptions. But basically, the courts are letting the cases stay in court, even though there are no regulations specifically requiring that the Web Content Accessibility Guidelines are satisfied, because the ADA is so strong.
Even the Department of Justice agrees. Even the current Department of Justice. And I have on this slide old-fashioned ink to represent a letter that the Department of Justice wrote to congressman Budd. Sorry I’m not remembering what state he is from.
In September– well, back to [AUDIO OUT] July. In July, about 103 Congress people asked the Department of Justice to issue regulations because they saw that as a way to stop many of the lawsuits being filed. And the Department of Justice answered the letter. It was organized by Congressman Budd. Maybe someone can put in the comments where the congressman is from.
And the September 25th letter is reprinted in full on my site because I thought it was important for people to read. I wanted it inaccessible format, so you can find it there. And in the letter, the department said, we’re not going to issue regulations now. And then it went on and said, the Department of Justice first articulated its interpretation that the ADA applies to public accommodation websites over 20 years ago. Over 20 years ago. And quote, “the absence of specific regulations does not serve as a basis for noncompliance with the ADA.”
So the current department of Justice is agreeing, yes, we don’t have regulations, but websites have been part of the ADA for 20 years. The letter goes on to say that basically, noncompliance with WCAG– they don’t mention WCAG, the Web Content Accessibility Guidelines, they call it a voluntary technical standard. But that’s what they’re referring to.
“Noncompliance with WCAG does not necessarily indicate noncompliance with the ADA.” I would agree with that. There could be possible technical violations that don’t equate to exclusion or lack of effective communication, et cetera. But the bottom line is that the Department of Justice recognized that the ADA still covers websites, even though there aren’t regulations.
One more thing about the Department of Justice. They have a page. It’s at the URL ada.gov/access-technology. And on that page, you can find all the Department of Justice’s work from 2004 through 2017. I don’t think they’ve posted anything on there afterwards.
All the cases that the Department of Justice was involved in, primarily during the Obama administration, on web accessibility and supporting disabled people’s rights to accessibility. Very little has been done in the current administration. But in 2018, there is a settlement on the Department of Justice website, the ada.gov website, where they did a settlement with Denver, and they require web accessibility. So they have web accessibility provisions very similar to the ones that were done under the Obama administration, requiring WCAG 2.0 compliance and accessibility consultants, accessibility statements, et cetera.
So today’s courts, as well as the Department of Justice in this one decision, are really relying on yesterday’s DOJ when they’re looking to the Department of Justice. But of course, the Department of Justice is a lot less important right now because they’re not really doing any activity. But all the activity that the Obama administration Justice Department did still stands, and you can still find it on this access-technology page.
OK. So the bottom line takeaway is that yes, the ADA web regulations are dead, but the ADA is alive and well. The regulations are dead, but the ADA is alive and well. OK.
So we’re still talking about the foundation. In addition to the ADA, the map up here is the state map of the United States, showing every state in a different color, because every state– many states, not every– has their own laws, separate from all the federal laws, that allow for participation and recognize accessibility.
So US state laws basically fall into three categories. Many have procurement statutes, just like section 508. They call them little 508s or State 508s. And it’s basically the same idea. The State is not going to buy things, web content, mobile apps, technology, that everybody can’t use.
Many states also have the state funding requirement that’s analogous to Section 504. Again, the state’s not going to spend money– the state is not going to fund other projects, other schools, higher ed, unless the money is going to be able to be used by everybody.
And many states have anti-discrimination laws. So you’ll see in the cases that there are California, Florida, New York, some of the states have stronger laws than others. That’s where you’ll tend to see more lawsuits based on state law.
Again, this is all part of the foundation, and we don’t have time to go into all the laws. I’ve done talks in various states where I’ve been able to spend more time on particular state obligations, but the big takeaway, the thing to put in your pocket, again, is that the foundation is very strong, and it includes both federal and state laws.
Also international. Here’s a map of the world. The United Nations Convention on the Rights of People with Disabilities has very, very strong language supporting digital accessibility. Again, we could do a whole presentation on this, and I do, but not right now.
Implementation and enforcement is an issue around the world, as it is everywhere with laws. But the UNCRPD puts down a blanket of accessibility potential, you could call it, around the world. The W3.org website– it’s W3.org/WAI/Policy. That’s a new updated page where you can read a lot about laws in various countries. The European Union has a relatively new directive.
I also have an international page on my website. You can go to LFLegal.com and look in the topics page and find International, or you can search for some different countries. And I share this to say that whether you’re– some of you on this webinar may be working for organizations that have operations outside the US, so I share it for that reason, but also to know that if you’re on this call, and you’re thinking of digital accessibility, you are really part of a global community of people working on this issue.
And I believe– and I did some speaking this year outside the country– that I don’t care what happens in any individual case in the United States. This is a forward motion thing. The world is requiring more accessibility. And the US legal system can get caught up in cases and issues, and we’re going to talk about those next, but the bottom line is, as Martin Luther King says, the moral arc of the universe bends towards justice.
And that’s what is going to happen. And I think the thing to put in your pocket is not just federal laws in the US. It’s not just laws in your state. And there’s even some local jurisdictions. New York City has its own law. Massachusetts has a good constitution. California has a law for its websites. And all over the world this is going.
So anyone on this call who is slightly inclined to fight this, I would say to think harder about it. And we’re going to go into some of those cases now. And quickly, before we do, all these laws we’re talking about, they have a variety of remedies.
Many laws give people the right to get the problem fixed. They call that injunctive relief. Many of the laws in the US, the Americans with Disabilities Act in particular, give disabled people the right to have their attorneys paid when there is a discrimination, when there is a lack of access.
So companies or organizations who decide to fight it risk not only paying for their own attorneys, but having to pay attorneys for the people who are bringing the lawsuits. The Americans with Disabilities Act does not have money payment for people discriminated against, by and large, in the private sector, but many states do have damages for plaintiff claimant.
And another thing that happens when you go into court or you go into a legal process, you end up with court supervision, and you take away some of your own– you lose some of your own control. So these are things to think about when you are faced with a legal claim. Again, this is not legal advice, but how much– these aren’t just civil rights ideas. They’re concrete laws that are part of the foundation, and they have ramification in these remedies.
–foundation. And here you see a picture of just the foundation without the building. Because without advocates and strategies, all you have is a foundation. And so now we’re going to talk about how the law is being used to go off of that foundation, to take that foundation and to put it into practice.
In the US, the legal strategies are several. And the first is disabled people’s advocacy. People with disabilities are using the law every day to try to get things fixed. I always say, and I so believe this, that people with disabilities do not want to file lawsuits. They do not want to do structured negotiation, even though it’s more collaborative and client-centered. They want to be able to use technology like anyone else. Get in, get out, get the work done.
And every day, the fact that we have a strong foundation is helping disabled people use that advocacy. But sometimes individual advocacy isn’t enough. So there are lawsuits. There are federal agency complaints. And there are structured negotiation, like I say, which is a process I’ve been using.
I want to say one thing. I used to go through the strategies and start with structured negotiation and do the lawsuits. The climate is different now, and I want to start with this, to say lawsuits enforce civil rights. They always have in the United States, from various groups, women, racial minorities, gender, LGBT, people with disabilities. Lawsuits are a critical enforcement tool. And the lawsuit strategy can be misused. And it can be misused on all sides. There’s a lot of focus on too many lawsuits being filed, too many of a certain type of lawsuits being filed.
There is also a lot of different ways to defend a lawsuit or to respond to a lawsuit if you get it. So I’m really big on not throwing the baby out with the bathwater, despite the environment that we have, which is why I like this old [AUDIO OUT] woman actually looking like she’s throwing the baby out with the bathwater. We can’t say all lawsuits are bad. We can’t say all lawsuits are good, either. We have to look at each case, and we have to remember the civil rights aspect, and we have to try to build an accessible world, so we won’t need so many lawsuits as a motivator.
So let’s talk about how law is being used. Let’s talk about the lawsuits. Most cases are in their early stages still, because the law is very slow. And I think it’s fair to say that most defendants are losing in this early stage. Now, not every defendant is losing, and things are going to happen next week that I don’t know about. But right now, I think there’s agreement across the board that in the early stages, most defendants are losing.
And that’s why I have this picture of a trash can with money. Stop wasting money fighting lawsuits. It is much, much better to spend money and build in accessibility than to spend money fighting lawsuits. I’ve read a lot of these decisions in the past six months, and I’ve read a lot of them this week to get ready for this webinar. And there’s so much money being spent not on accessibility, just on arguments about accessibility. And we’re going to talk about some of those now.
But it literally almost breaks my heart to see, instead of civil rights being used as an affirmative motivator, to see the law just getting into, I mean, scuffles. Fist fights. I don’t know how else to say it. So, yes. Let’s stop wasting money fighting lawsuits.
[AUDIO OUT] couple of big cases. Winn-Dixie, many of you on this call know, was the first trial under the Americans with Disabilities Act. The first case that went all the way to trial under the Americans with Disabilities Act on web accessibility. Most of the cases are still being argued about, should the case stay in court to see what happens, or should it get thrown out early. Winn-Dixie went all the way to trial, and the plaintiff won. And the judge issued an order saying that Winn-Dixie website had to be accessible, and they had to do training. They were responsible for third party content. It was a very strong order.
It is now on appeal in the 11th Circuit. That’s the Federal Appeals Court that covers– this case happened in Florida. It covers Florida and others. Sorry, I don’t have all the states right off my head, here.
The argument was [INAUDIBLE]. And you can listen to it. I put it on Twitter this morning. I could not find a captioned version of the 11th Circuit argument, and I hope there’s one out there, and someone will correct me. So we will have to wait and see. There will be a court decision about whether or not Winn-Dixie District Court made the right decision. And we’ll get a little more idea from the 11th Circuit about where web accessibility stands.
There are 11 circuits in the United States and the federal courts. That means all the federal courts in each state are divided into 11 groupings. So we’re going to get some information about Winn-Dixie from the 11th Circuit.
Domino’s Pizza, which I have– this is my favorite slide because it’s really yummy looking broccoli pizza here. That’s happening in the Ninth Circuit, which is the West Coast, California, Hawaii, Alaska, some other Western states. That was also argued in October. And I also put the link to the oral argument up on Twitter this morning. Again, my Twitter handle is @LFLegal, if you want to try to find it there.
This was one of the very few cases where a court said that the case could not stay in court because the DOJ had not issued regulations. And like I said before, the ADA regs are dead, but the ADA is alive and well. This court did not see it that way and threw the case out of court, saying it wasn’t fair to Domino’s because there weren’t any regulations. Well, that’s also on appeal. It was argued in October. And so we’re going to have more ideas from the Ninth Circuit about where web accessibility stands.
Another one I want to point out is GNC, which is a vitamin, supplement kind of company, so I have a big picture of vitamins here. That case, the plaintiff also won on [AUDIO OUT] which is an early way– before you have to have a trial, the judge saying who should win the case.
And it’s interesting. And I will write something about it for my website. And you can find the case online. Because there was a lot written in the court about who’s an expert. And the defendants had hired an expert in the case, and the plaintiff– sorry. The court basically said, this expert is not an expert, and they threw the expert out. And the reason was because the expert didn’t really know anything about the success criteria and didn’t really know about WCAG, and didn’t do the testing himself.
And I put it up here just to remind you. I think part of the fear that’s being created around all this legal activity is that when you do get a demand letter or a lawsuit, somehow people panic, and they throw their common sense out the window, and maybe they rush to hire an expert or rush to hire a lawyer without vetting and without making sure that if you’re going to hire an expert, make sure the person works within your culture. Make sure you treat it like any other vendor and interview different people. Make sure that– I’m thinking the phrase “vet before you get,” which the folks from the University of Massachusetts have great presentations on.
Don’t just run out and hire an expert because you’ve got a lawsuit. Another thing that’s happening in this space is that there’s a lot of new people taking on the role of consultant and expert. And it’s really important, if you need help with accessibility, to get good help that works for you. And so I think this case, GNC, is really a warning to all of us that once these things get into the legal space, the courts look at the experts to see if they really have expertise.
Whisper Lounge. This is another relatively new one that came out of California and is based on the California law, where California does have money damages. And again, the defendant lost the case. The judge said the Web Content Accessibility Guidelines apply to the website, and the plaintiff got $4,000 as well as attorney’s fees.
It says here on the slide, money once, because the judge said for one website, you can only get the $4,000 once. That’s another question that can come out differently in different courts. So that’s another. I’m just trying to give you some of the highlights of the cases. I can’t possibly give you every case that’s out there, but I’m just trying to give you a feel for what’s out there.
One question in that Whisper Lounge case that’s still driving me crazy is that the judge said that the phone is not an equivalent for a website. And this is what happens with the law. The truth is, law, I mean, it’s great that we have the laws there to be enforced, but the law is very slow. So judges– no one in the real world thinks the phone can be an equivalent for a website, but this is still a legal question.
And when I say, what’s going to happen tomorrow, maybe tomorrow you’ll read about a judge somewhere who says, well, you could call on the phone, and therefore, the website doesn’t have to be accessible. But we all know that the phone is not equivalent to the web. So in that Whisper Lounge case, they have some conversation about it. I think there are some other cases out there. But I am not concerned in that big picture, the law is going in that direction. Because the web cannot be, in my mind, the equivalent of a phone.
The Alameda Voting case, I have up here because this was the first settlement that incorporated WCAG 2.1. 2.1 is an expansion of 2.0 that came out this past June. And this was a settlement that the National Federation of the Blind and Brown Goldstein and Levy were the lawyers.
They used structured negotiation to reach this settlement with Alameda County. It has to do with the voting machines, as well as the county’s voting website, that has information about candidates, et cetera. I have a new post up on my website where you can read about this settlement.
And also, if you’re a WCAG geek, I put in there some of the past– when was WCAG 1.0 passed, and what was the first legal settlement with that, and what about WCAG 2.0? But this was a first with WCAG 2.1. And as I said, it was agreed through a structured negotiation. They did not have to file a lawsuit. So that’s another relatively new development.
Dunkin’ Donuts– I’m sorry for the blurry picture here– is another case that people are talking about. And again, from the 11th Circuit, which is the appeals court that heard the Winn-Dixie appeal. We don’t know what they’re going to say about Winn-Dixie.
I bring Dunkin’ Donuts to your attention because this was a case where the district court threw the case out early. It was one of the few cases, like I said before. Most of the early cases, the plaintiffs are winning. But in this case, the court threw the case out, so the company won. Great.
Well, then they went on appeal, and the appeals court said no. The case should not have been thrown out. Think of how much money is being spent, first in the trial court, now in the appeals court. And it was all about whether the plaintiff could find Dunkin’ Donuts locations and could order a Dunkin’ Donuts gift card. How much would it have cost to make the damn website accessible? Instead, all these motions and arguments and hearings, and now we have another case where, again, the plaintiffs won in the court of appeals.
Credit unions. There’s a lot of activity around credit unions. I don’t know if there’s any credit union people on the webinar. I want to say two things about credit unions. One is the credit union, it’s called BECU. It originally was Boeing Credit Union or Backlash. That’s my question.
With the Boeing Credit Union, which I think is called BECU now, there was a great settlement reached by Brown Goldstein and Levy and the NFB. Again, a lawsuit wasn’t necessary, and the credit union agreed to make its website and mobile app accessible.
The San Francisco Federal Credit Union had a great settlement a couple of years ago now, where the platform that credit unions use for websites was part of the settlement. And that was going to be accessible. Again, I wasn’t involved in either of these cases. No lawsuit was required there either.
I say BECU or San Francisco Federal Credit Union or Backlash because there have been a lot of lawsuits filed against credit unions, and the [? Credit ?] Union Organization of America has been very vociferous in defending its members. And it’s another thing that kind of breaks my heart, because credit unions are community organizations. And there’s so many people within credit unions– like I said, San Francisco and Boeing– who did the right thing when approached in the right way.
So there’s a lot of activity with credit unions. They’re the ones who started the Congress to write the letter to the Department of Justice. And I think this shows that we have a strong foundation and we have a lot of strategies available. And how you use strategies and which one you choose determines what kind of results you’re going to get and how people are going to feel, how people are going to feel about the law.
So I hope the credit unions can focus on the Washington State and the San Francisco credit union activity and become the leaders that they could be and they have been. Small fact, the very first talking ATM in the entire United States was installed by the San Francisco Federal Credit Union. So it is my hope that we will stop seeing the influx of lawsuits against the credit unions, and we will stop seeing the backlash.
US Department of Education. I invite you to look up 3Play Media’s presentation done by Paul Grossman, who is longtime Office of Civil Rights, with the Department of Education. He’s a friend of mine. He does a wonderful webinar on higher ed and the Department of Education. And I can’t do justice to the issue in this webinar except to tell you to go listen to Paul Grossman’s webinar on 3Play Media.
The most recent thing to say is they’re using the phrase “mass filer regulations.” So as many of you know, there were thousands of complaints filed about inaccessible websites, which led to a retrenchment by the Department of Education on the regulations, which led to a lawsuit that was filed against the Department of Education, saying that they changed their rules for processing complaints in a way that violated the law and that wasn’t fair. And that was a lawsuit filed both by the disability community as well as the civil rights community interested in race cases in K12 and higher ed.
So just last week, in response to this lawsuit, even though they’re not admitting it’s in response, it must be in response, they changed the mass filing regs. And I use these words mass filer, so you can easily find it on Google. And there’s many articles that have been written in the last couple of weeks. They changed the regs back. We don’t quite know how the complaints are going to be handled, but they have changed the regulations so that they’re not automatically throwing complaints out just because one person filed many complaints.
For higher education lawsuits, this is another area where there is many, many cases being filed. Just in the last couple of weeks, there was a report on 40 cases against mid-Atlantic colleges and universities in a very short time period. And I recommend this link. bit.ly/HigherEdLaw. And this is a website maintained by Laura Carlson of the University of Minnesota, where she does a very good job in reporting on higher education cases and settlements.
And there are some great settlements that have been reached in higher education. I think the most recent one to look at is Miami University of Ohio, Atlantic Cape Community College is good. University of Montana. And if you’re in higher ed, rather than getting distracted by all these lawsuits, I would recommend looking at the best practices that come out of the agreements that have already been reached and following those.
There’s a little– whoops, sorry. In employment, there’s cases being filed about inaccessible job applications. There’s been a long-running lawsuit on software in the employment setting. We’re going to see the law more and more involved in this area.
Employment law is different than public accommodation. The Employment Title I of the ADA is different than Title III. So we may not see that mass type of lawsuits because employment is more individualized. There are no court decisions yet that I’m aware of. Most of the cases get filed, and then they quickly or not so quickly get settled. But it’s something that we should be paying attention to.
In audio description, there have been two good settlements with Netflix and Hulu. And I recommend those for you to look at. And if you have video, and you don’t have audio description on your to-do list on your agenda, you need to. And these cases are good examples of that.
Digital access is more than websites. There’s starting to be more and more activity around kiosks. I did a post on my site. It’s LFLegal.com/2018/01/kiosks18, where I talk about the cases that I’m aware of around kiosks. And I’m updating that as new cases come available. But it’s very important.
The law is kind of slow. And the law is still focused on websites, even though technology is talking about artificial intelligence and virtual reality and mobile apps and a million other things. But the law is going to catch up here, and there’s starting to be digital accessibility issues around kiosks.
The most recent one is a case we all need to watch that was filed against Walmart for its self-check kiosks not being accessible. And this goes back to that core value of accessibility being about privacy. The plaintiffs in the case couldn’t use these machines independently because they’re not accessible. Asked for help, and they were robbed by the person who was supposed to be helping them. Their money was stolen. So that’s a lawsuit that’s recently been filed. There’s nothing to report on it yet except that it has been filed and something we need to pay attention to.
A couple of unusual twists. I reported before on there was a whistleblower case against Teach for America by someone who said that she was fired because she was advocating internally for accessibility. That case has been settled, and it’s not public. But that was out there.
There’s also one case I’m aware of, and if anyone knows of more, please tell me afterwards, where the web developer was sued. The case was against a restaurant chain called Wet Willies. And the website said, this website designed and hosted by Sabre Technologies. And so the lawsuit is against Wet Willies and Sabre.
And I just learned, as I was preparing for this webinar, that that case is still in court. And the developer tried to get it thrown out in the early stage, and it was not thrown [? out. ?] There was a motion to dismiss. That’s what they call it when the defendants try to throw the case out early. And it was September 12, the court order, you can find it online. It didn’t deal directly with the developer’s responsibility, the site owner, but it said, this case can stay in court.
OK. Three legal concepts I want to talk about really quickly. One is standing, which I have represented by these upside down people standing on their hands. In law, standing has to do with who can bring the lawsuit. Who can bring the lawsuit. So a lot of the cases you’ll hear about, many of the cases getting thrown out early is because the person who brought the lawsuit didn’t really have the right to bring the lawsuit.
This is something that’s happening in some of the credit union cases. If you have a credit union that is only for employees of the CIA, you really don’t have standing to bring the lawsuit if you’re not an employee of the CIA. So some of these cases where defendants are winning are for that reason.
As a person who’s always represented disabled people, I think that it’s very important that the person bringing the case is someone who has standing, who’s been impacted by the barrier. So that’s the idea of standing, and you’ll see you’ll see some cases on that.
Let’s see. Can the same company get more than one lawsuit? That’s called mootness, or moot. And I have these darts there, like can you get hit by more than one lawsuit. And the answer is yes. The main case on that is a case against Hooters. Just because a company settles a lawsuit with someone doesn’t mean the next person can’t sue. And of course, how do you avoid that? You actually bake accessibility in and fix problems. If you get a lawsuit or you get a demand letter, take it as a wake up call so you don’t get the next lawsuit. But you will see some cases on that, and they call that mootness.
And then the other one, does the website have to be connected to a brick and mortar place? And they call that nexus. And there are a lot of cases about that and a lot of discussion. As I said, the United States is divided into 11 circuits. Some of those circuits say you have to have the nexus, which is a connection between the brick and mortar place and the website.
So for example, if you are going to the website to find out where the store is, or to build a shopping list, or to purchase a card that you can use in the store, then a judge is going to say you have a nexus. If it’s just a web only, then a judge in these circuits might say you don’t have a nexus.
So there’s about 14 states that are in circuits that say you need a nexus, but there are many states who aren’t. So I guess you could say if you have a website that only operates in Kentucky and doesn’t have a brick and mortar [INAUDIBLE], you don’t have to worry about it. But in real life, websites are ever– if they’re in Kentucky, they’re also in Massachusetts and Vermont, where a nexus is not required.
So there’s still a lot of legal discussion on that. I don’t think it’s so important, to be honest. It’s important if you’re in a lawsuit. But if you’re a designer or a developer or a person spending money, deciding on budgets in your company or in your college, your website is going to be operating in a place where there is no nexus requirement. And judges understand this.
There’s a pothole here, and there’s a judge who said, “a rigid adherence to a physical nexus requirement leaves potholes of discrimination in what would otherwise be a smooth road to integration.” And you can look up the word pothole on my website, and you can find that case. “A rigid adherence to a physical nexus requirement leaves potholes of discrimination in what would otherwise be a smooth road to integration.”
Foundational cases. I’m just going to read these off and not discuss them. But the ones we’ve been talking about so far are the relatively new cases. The foundational cases came before, thus, foundational. The Target case. Netflix being foundational because they said no nexus was requirement.
Miami University, as I said, great example of a good high-read settlement. A lot of important voting cases. A case against Scribd, which is the Netflix of books. Another case that said you don’t have to have bricks and mortar. These you can all find more information about in [AUDIO OUT] links to the agreements or the court orders on my website.
Bank of America was the very first company in the United States to sign an agreement on web accessibility, in 2000, that was reached in structure negotiation. I was involved in negotiating that. Major League Baseball, Anthem, E-Trade, these are all companies that worked in structured negotiation– I tell stories about them in my book– to come up with their web and mobile accessibility programs.
Blick, Blue Apron, Hobby Lobby, and 1-800-Flowers are some of the recent cases with really nice opinions, and I invite you to read them. They just remember that this whole subject matter is about civil rights. There’s a picture in the corner of someone taking a test, to represent a settlement with the BARBRI, which is the big test preparation company for preparing for the bar exam.
Lawsuits. There’s a lot of them. In 2015, there were 57 lawsuits. So far, first half of this year, there were 1,000. We’re on the road to close to 2,500 this year. I recommend to you the Seyfarth Shaw blog, adatitleiii.com. They do a good job of keeping track of the numbers. That’s where I learn about numbers, from them. 2016, there were 262. 2017, there were 814. So yes, there’s a lot of activity in the legal space, but it’s really important to just take a deep breath and try to hold on to the big picture of the civil rights and the fact that spending money fighting lawsuits doesn’t make a lot of sense.
So don’t be distracted by court cases. I like this picture. Weapons of mass distraction, where they have Facebook, Twitter, YouTube, weapons of mass distraction. The courts can be that too, the legal system. We can get too wrapped up into what’s happening in the legal space and forget that accessibility is about people.
I meant to say earlier that there’s a million reasons other than civil rights of disabled people to make things accessible. Good SEO, an opportunity in creativity and larger markets, and those are so valid and valuable. We didn’t talk about them so much here because this is about the legal space, [? which ?] is kind of its own.
So let me just talk a little bit about best practices, so we have time for questions. Good strategies bake in access. And this is a picture of cookies. And it says, bake accessibility into your organization’s culture. I first did the cookie presentation at [INAUDIBLE] last year with Microsoft’s lawyer, Sue Boyd, and we completely agreed on what it takes to bake accessibility into an organization’s culture. And that, of course, is the best way to stay ahead of the legal curve.
And I have a post on my website where I go through all the ingredients, and we actually serve cookies. These cookies were served in New Zealand, when I gave a similar presentation in New Zealand last month about baking [? steps ?] [AUDIO OUT] in your culture as a way to stay ahead of the legal curve. And the cookies have tons of ingredients. And these were the ones from Zealand, that really had a lot of ingredients. Nuts and M&Ms, and coconut, and all this, to say whatever your role. We have a lot of people in this webinar. I’m sure we’re covering every role. Whatever your role, you have a role in baking in accessibility.
So just really quick. The best practices which have always been the best practices, and now the law is starting to recognize them. Many of these, like I said, were in Winn-Dixie and are referenced in many of the other court cases.
Your program has to cover web and mobile plus anything technology. I put here WCAG 2.1 AA. There haven’t been any court decisions referencing to 0.1 yet. If I’m wrong, I hope someone will correct me afterwards. But the courts now, we used WCAG 1.0 back with the Bank of America agreement. We used WCAG 2.0 back in 2010. Now there’s starting to be court cases that recognize WCAG 2.0.
You need to have a coordinator or someone who’s responsible, an independent consultant. The courts are starting to reference that in accessibility policy. Training, making sure everybody’s trained. And check it out yourself.
I have a picture phone here because I once did that in a meeting [? with ?] [? a big ?] company. And they’re like, I think [INAUDIBLE] is fine. I said, I don’t think so. Let’s call up the 800 number and see what happens. And sure enough, one call showed that it wasn’t really working.
Like I said, people with disabilities, they want to call up. They want to get an answer. They want to talk to someone who doesn’t say, can’t you mother help you with this, or look at the red button on the top left. They want to make a phone call to a trained person and not make a phone call to a lawyer out of frustration.
Accessibility statement. Brand new this morning. The w3.org website accessibility initiative published its resource about how to put together a good accessibility statement, and they have something called an accessibility statement generator. I really recommend that. It’s w3.org/WAI/planning/statements/.
I also have a post on my website that I have been keeping up since 2013. It’s on the front page, or you can search the word Hitachi, because that’s the only place Hitachi appears, where I have links to accessibility statements from companies, organizations, schools all over the country and some from outside the country, and I also put up– the European Directive now talks about accessibility statements, and this morning, I just put up this new way statement.
So I have a picture here of a wheelchair builder building a wheelchair. A wheelchair rider building a wheelchair, because you do not have to reinvent the wheel when you do an accessibility statement. One of the things that’s happening in the legal space is fear. And sometimes lawyers say, oh, don’t say anything about what we’re doing with accessibility, because I’m afraid that will bring in new lawsuits. Not my experience. Really recommend accessibility statements.
Adding accessibility to performance evaluations using a testing tool. Vendor contracts, so important to avoiding accessibility errors. I co-wrote an article with Eve Hill, which you can find at lflegal.com/2018/04/vendor contracts, where you can get some tips about– we wrote this for business lawyers. The American Bar Association published it. So having a good system to control your vendor is so important.
And accessibility culture. That is the bottom line of it. And I have a post on my site– and I’d like to add to it, so please send me information– where I’m posting articles that companies are writing about the culture of accessibility. Because in the cookie presentation, the law is just one ingredient. This stuff matters. I’m a lawyer. We all care about law, civil rights matter.
But in an accessibility culture, remembering the civil rights and not getting all wrapped up in what’s happening in a particular court and on a particular day is going to lead to better results. So I really encourage you to take a cue from companies that not only have an accessibility culture but are talking about it. The link is at lflegal.com/2018 /05/accessibility-culture/.
And I just felt I had to put in this picture of Microsoft here. Because all the companies that were mentioned originally had a problem and came out of the legal space. Microsoft hasn’t had any lawsuits. They are really– I put in here, you’re not alone.
Because when I went to New Zealand, I was trying to encourage– I know it’s hard for organizations to be the only or to be the first. And I’m not saying Microsoft’s perfect. I know they wouldn’t say they’re perfect. But such a role model. And I have their logo and a picture of Jenny Lay-Flurrie, who’s the chief accessibility officer, and the Ceo’s book, Satya Nadella, called Hit Refresh, which I really recommend. Lots of good information they’re putting up [INAUDIBLE] value of accessibility in various aspects of corporate culture and also as a way to avoid lawsuits.
So when you think about digital accessibility law, please try not to think about the shark. Which is why I have a big red X. Please try not to act like a shark, which is why I have a picture of a cute little fish with a shark fin. Please try to remember that it’s about civil rights, and that should be encouraging and motivating.
I have a few resources on here. We’re going to have time for a few questions. On my website, LFLegal.com, on the Contact page, I do have a mailing list. This year I only sent out two emails. So if you want to know what they are, you can sign up.
The Legal Update tab, I try to keep everything updated. I have a Speaking tab, where I talk about the kind of talks I give, if that would be of interest to you. And some of them, when they’re recorded, I put all the recordings up there. Like I said, I recommend ADATitleiii.com blog by Seyfarth Shaw.
Last year’s 3Play Media update can be added to this one, and you can find out more about cases that happened in 2017. We are going to have a legal summit in March. You can find out information at Accessibility.legal. And we’re going to try to talk about some of these legal issues in a focused way.
And I get a lot of my information, like I said, on Twitter and from the kindness of people who send me articles and cases and also from Accessibility in the News, which is a newsletter from Micro Assist which I can recommend. They send out– I find out a lot of information from that.
So yes. This is a picture of my book cover. You can read more at LFLegal.com/book. And the publisher has a 20% off with LFLEGAL20 on shopaba. It’s not just for lawyers. And it’s about not being a shark when you’re talking about digital accessibility law. So 3Play, do we have any questions?
ELISA: Thank you so much, Lainey. We have a couple questions here now. And I want to encourage everyone to keep asking questions in the Q&A chat if anything else comes up. So the first question that we have is, isn’t the ADA the regulation? Would it be correct to say that the ADA regulation requires accessibility but doesn’t have specific standards referenced?
LAINEY FEINGOLD: That’s a good question. And I’m going to do a better job next time [AUDIO OUT] that. So the ADA is the law, and there are regulations under the ADA that require effective communication, that require non-discrimination, that require participation. So we’ve had those regulations, and those are called the ADA Title III regulations. Title II, they have regulations as well.
So you’re right. We have ADA regulations. We don’t have any regulations that specifically say a website must be accessible. A mobile app must be accessible. WCAG is the standard. That is what we don’t have. But the effective communication regulations are very strong and are a big part of the underlying foundation for saying that the ADA covers websites and requires accessibility.
ELISA: Great. Thank you so much. The next question that someone’s asking is is WCAG the prevailing guideline for specific steps to implement in order to be ADA compliant?
LAINEY FEINGOLD: Yes. That’s a good question. So WCAG, the Web Content Accessibility Guidelines, are guidelines for developing web content, the ones we’re talking about here, for developing web content. And if you follow those guidelines as well as follow the best practices that include, for example, usability testing. We didn’t really have time to talk about testing.
I just spoke at a testing symposium, and there was two days focused on testing and the importance of disabled people being part of the process and meeting WCAG as well as doing accessibility and usability testing. If you do all those things, chances are people are going to be able to access your information and goods and services, and that’s what the ADA is about.
So the Department of Justice letter said a technical violation of WCAG is not necessarily a violation of the ADA. And conversely, if you meet all the success criteria, it is possible but very unlikely if you have the success– if you’re meeting WCAG 2.0 AA, 2.1 AA, and you’re doing usability testing. Again, it’s not legal advice. But if you’re doing all that, and you have a program of responding to problems.
That’s another big piece of this. We talked about the accessibility statement. One of the things in the accessibility statement is having a phone number and an email where people can contact you if they have a problem. And that is often where many things break down, even in companies with good programs, with good developers who are trying to meet WCAG. You’ve gotta have a quick response system if a problem comes up. So all that taken together, that’s how you stay ahead of the legal curve.
ELISA: Great. Thank you. The next question that we have is, when I try to fix documents from academic journals, especially PDF files, I can clash against copyright laws. What efforts are being made to reconcile copyright law and accessibility law?
LAINEY FEINGOLD: That is a good question, and there– I’m not an expert in this. And I know there’s someone on this webinar who can maybe put it into the comments. There was a case to reconcile those issues, so there wouldn’t be a problem. And I’m just right now blanking on it. I can send it to 3Play afterwards, and they can put it in the show notes for this.
ELISA: Great. That would be perfect, and we’ll send it out with the recording tomorrow. Oh, someone actually just answered, and they said it’s the Chaffee Amendment.
LAINEY FEINGOLD: Yes. The Chafee Amendment, and there’s also a case having to do with [INAUDIBLE]. Hopefully someone will quickly tell us what it is. [LAUGHS]
ELISA: Cool. And if not, like I said, we can send it out tomorrow. So the next question that someone is asking is, for policies that are built around the revised Section 508, what would be the simplest way to say something like, Section 508 and WCAG 2.1 standards?
LAINEY FEINGOLD: Section 508 and WCAG 2.1 standards. That sounded good to me.
LAINEY FEINGOLD: I don’t want to make light of it, because that’s good. Because the revised Section 508 is WCAG 2.0 AA. And so adding in 2.1– I mean, basically, for those of you who are new to the space, 2.1 added some success criteria, primarily focused on people with low vision and access to mobile that linked accessibility and all its advantages.
So if you are meeting 508, and you can add in 2.1, that is great. And I’m all for plain language. If that’s what you’re doing, that’s what you should say. And I don’t think there’s any magic words to say it.
ELISA: Thank you. The next question is about the recent news that the Education Department will no longer dismiss complaints en masse. Do you think this will have much of an effect on institutions?
LAINEY FEINGOLD: [SIGHS] Well, probably your audience members can answer that better than I can. Basically, like when I did the presentation with Microsoft last year, we went through all the ingredients for accessibility that include the things we were talking about, coding and testing, transparency. And then if you do all those things, of course you check against the legal requirements, but probably you’re already meeting the legal requirements. And if you’re not, the work to meet the legal requirements won’t be so onerous or won’t feel so onerous.
So how institutions respond to this mass filing rule, when the old rule– when they said, we’re not going to process so-called mass filing cases, no one should have breathed a sigh of relief and said, oh, great. We don’t have to make things accessible. Because regardless of what’s happening with the complaint process, students have a right to access education. And so I don’t know how institutions are going to respond.
I hope that honestly, it’s kind of on the back burner. Because compliance– we didn’t have time to talk about this. But too much focus on compliance, I have a post on my site that’s like, if you’re asking about compliance, you’re asking the wrong question. Because I was asked in a webinar, my captions are 65% accurate. Does that comply?
Well, who would think that 65% of information is the same as 100%? Only someone too focused on legal compliance as separate from the real world and [? rights. ?] So I don’t know how institutions will respond, but I hope that they will just continue plugging away at making courses and documents and everything else that goes in education accessible.
ELISA: Great. Thank you, Lainey. The next person is asking, I have been getting pushback from leadership and HR at providing training such as WCAG for staff because they say the law does not mandate training. It seems to me that the law implies training. Any suggestions for what I can say to them?
LAINEY FEINGOLD: You know, in the Winn-Dixie case, I think part of the injunction was that they had to have training. I am pretty sure that’s in there. You could send me an email afterwards, or I could put that in the show notes, too, or whatever you call it. The idea of training is to avoid getting caught up in the legal morass.
I don’t really know how to answer that. I mean, I like to think of things in a practical way. Like how much could training cost versus getting yourself stuck in a legal vortex? So I think the idea of accessibility as a brand differentiator and making staff feel good about doing the work really has a high value. It’s hard to monetize, but it really has a high value.
I have another– I do a talk where I show– I worked on talking prescription labels with many the largest pharmacies in the United States in structured negotiation. And CVS took out a billboard at an airport that said, for people who can’t see, pill bottles that talk. Now, that billboard wasn’t for blind people. It was for the entire public to get a good feeling about CVS. I talk about that in the book.
Same with training. I mean, why wouldn’t you do training if it could motivate your staff and make people feel part of this global community that we’re all part of and avoid getting trapped in the law. So I don’t know. I mean, another thing to do is bring in speakers– I didn’t have a chance to say this. The more you can bring disabled people into your processes– ideally as employees, of course. That’s an important part of the cookie ingredient.
And for usability testing and even just for lunchtime chat or conferences or things like that, where people can meet people with disabilities. And then that can sometimes just crack it open. Just even 20 minutes with a speaker with disabilities. I have some ideas on that if people want to write to me.
ELISA: Great. Thank you. The last question that we have is are all these legal remedies beneficial to plaintiffs or to people who have disabilities? What do you mean they lose control of court supervision?
LAINEY FEINGOLD: OK. I want to apologize for that. It’s really hard doing all this in an hour and 15 minutes and not being in the room. So that might have gotten lost in translation. Court supervision is something that happens when if you win a lawsuit, and you have a settlement, then the court is– if there’s a problem, the court is still supervising the settlement. And that can be very good. That can be very good for plaintiffs and people with disabilities.
In structured negotiation, I’ve done agreements with many large companies. Like I said, BofA, Major League Baseball, E-Trade, CVS, we don’t have court supervision, because we have relationship, and that’s able to make sure that the commitments are fulfilled. So court supervision for companies, and I know many of you on here are in large organizations, it’s not the ideal thing.
Companies don’t want to be supervised by a court. And it’s one of the risks to factor in if you choose– if you get a letter or you get a lawsuit, and you choose to fight it, this is something at risk. Court supervision can be good and important for the people with disabilities who need to make sure the commitments are actually carried out. Does that answer the question?
ELISA: Yes, that was great. Thank you so much. That is all that we have for today, but thank you so much for such a wonderful presentation. And thank you, everyone, for joining us. Just a reminder to keep an eye out for an email tomorrow with a link to view the recording and slide deck and some of the other information we mentioned today. And I hope that everyone has a great rest of the afternoon.
LAINEY FEINGOLD: Thank you very much.