Shifting from Fear to Motivation when Talking about Digital Accessibility Law

Digital accessibility is about people. Deaf students who need the content in an assigned video before the next exam. Blind banking customers who want to keep their online account information confidential. Seniors with failing vision and hearing whose online communications make their day. The retired veteran without arms who loves video games.

Without access, disabled people are excluded from the benefits of websites, mobile apps, or other technologies. They (we) can’t participate. Privacy and independence are compromised.

Remembering that accessibility is about people is the foundation to building (and maintaining) accessible technology. Scientist and inventor Josh Miele calls this “Accessibility from First Principles,” using a physics term stretching back to Aristotle. The ancient philosopher defined first principles as “the first basis from which a thing is known.” More recently engineer, investor, and Tesla developer Elon Musk brought first principles into the 21st century:

“First principles is kind of a physics way of looking at the world. You boil things down to the most fundamental truths and say, ‘What are we sure is true?’ … and then reason up from there.

Miele is right: we are sure that it is true that accessibility is about people.

Remembering this doesn’t just help ensure that products and technology are built so that everyone can use them. (And by everyone I don’t just mean consumers of tech and content. I mean employees, makers, tool users of all sorts.)

Putting people at the center of accessibility also explains why the law is part of the digital accessibility landscape. And it helps us speak of the law as a motivator for good, instead of a hammer designed for annoyance (or worse).

***

I negotiated my first web accessibility agreement (with Bank of America on behalf of blind banking customers) in 2000 in a dispute resolution method known as Structured Negotiation. Structured Negotiation is a way of resolving legal claims without lawsuits. It is premised on the idea that if people sit down and actually talk to each other with trust, patience, and listening skills, problems — even legal ones — can be solved.

Structured Negotiation is a process that depends on relationships and therefore it is particularly suited to resolving claims about digital accessibility. Structured Negotiation gives site owners the chance to meet site visitors as people with disabilities: as customers (“users” in #ux lingo) instead of as plaintiffs in a lawsuit. And disabled people have an opportunity to better understand what happens behind the scenes as accessibility is implemented.

Since that first agreement with Bank of America, one of the largest financial institutions in the United States has become an accessibility champion. And I have worked with my clients and co-counsel to resolve digital access claims in Structured Negotiation with a host of other organizations. Charles Schwab, Anthem, Inc., Weight Watchers, Walgreens, Major League Baseball, and Houston’s public transit agency are just some of the entities that have participated in Structured Negotiation to improve access to websites, mobile applications, and other technologies without lawsuits or runaway expenses.

Stories about some of the people behind these negotiations are shared below. But first, let’s look at how disabled people use the web and the legal foundation for both Structured Negotiation initiatives and the growing number of lawsuits being filed in federal and state courts. That foundation is comprised of laws embracing the rights of disabled people to participate in the online world.

The ability to participate — accessibility — is an integral part of the online world, and always has been. Sir Tim Berners-Lee invented the World Wide Web in 1989, and eight years later launched the Web Accessibility Initiative (WAI), a program of the World Wide Web Consortium (W3C). In the April 1997 release announcing the Initiative, Berners-Lee put accessibility front and center:

“The power of the Web is in its universality,” he said. “Access by everyone regardless of disability is an essential aspect.”¹

How Do Disabled People Use the Web?

Sighted people often express surprise when I talk about blind people (my clients, friends and colleagues) using computers and mobile devices. “How do they do that?” Software and hardware, often referred to as assistive technology, can read text aloud, provide navigation shortcuts, enlarge text, or produce braille output.

The needed technology may be built in (as it is in every iPhone, for example), or an after-product, like a refreshable braille display that produces constantly updated braille output from web pages at a blind user’s fingertips.

The most common type of software for blind people is called a screen reader. Screen readers, such as VoiceOver built into all Apple products, access back end code to read aloud screen content and speak navigation cues, such as links and headings. Screen readers allow blind users to skim pages, screens, documents, and tables with designated keystrokes. Blind people can use iOS flat screen devices with a series of swipes, taps and double taps while listening to audio output.

Accessibility is not just about blind people. People with a wide range of disabilities—and the growing senior population—need accessible websites and use assistive technology. Curious about why and how? A great place to start is People with Disabilities on the Web, in-depth content on the website of WebAIM, a nonprofit organization based at Utah State University.²

Another helpful resource is a series of short videos from the W3C’s Web Accessibility Initiative. Each explains, with a focus on a different disability, that “accessibility is essential for some, useful for all.” ³

Too often, accessibility is thought of as a “compliance matter,” something to be checked off a list. While compliance is important, First Principles remind us that accessibility is a “people matter.” Think of accessibility as something without which real people are left by the wayside of the digital world. Because without accessibility, they are.

Legal Support for Digital Accessibility in the United States – and Beyond

The law in the United States and around the world provides a strong foundation for fulfilling the promise of Tim Berners-Lee’s vision for an accessible web. While a full review of every law, regulation, treaty, and constitution supporting the rights of disabled people to participate in digital society is beyond the scope of this article, an awareness that the legal foundation exists is important to understanding how advocates are using the law to advance digital inclusion.

Each block of the legal foundation reflects that accessibility is a civil (human) right because without it, part of society is excluded.

The Americans with Disabilities Act (ADA) is a sweeping civil rights law that prevents discrimination and fosters full inclusion of disabled people in all aspects of society. In its three major “titles” the ADA covers employment of disabled people (title I), activities of state and local governments (title II), and public accommodations (private businesses serving the public, title III). In the digital age, an inaccessible website is akin to a “Do Not Enter” sign posted to keep out computer users who are disabled. A mobile app not coded to international accessibility standards is akin to offering a service to some users while excluding others. For these reasons and others, accessibility is an ADA issue.
The ADA has many implementing regulations, adopted by the United States Department of Justice in the 27 years since the statute passed. One of those regulations requires covered organizations to provide “auxiliary aids and services” — a somewhat awkward term that is defined to include “accessible electronic and information technology; or other effective methods of making visually delivered materials available to individuals who are blind or have low vision.” Bingo! Accessible technology is required.

But regulations specifically addressing standards and other implementation issues around web and mobile accessibility are not part of existing regulations. After continued delays those potential regulations are now in “inactive” status. But the absence of a particular type of web or mobile accessibility regulation does not diminish the ADA’s broad sweep or its application to the digital world. ADA web access regulations are currently inactive. The ADA is not.
Section 508 of the Rehabilitation Act of 1973 is a procurement statute designed to ensure that technology purchased by the federal government is accessible. Regulations implementing Section 508 are known as the Information and Communication Technology (ICT) Standards and Guidelines. These standards and guidelines were recently “refreshed” after a decade-long process, finalized in January 2017. The recently updated regulations include the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA as the standard for web, mobile, and electronic documents.
State and local laws in the United States enacted to prevent discrimination against disabled people also provide a foundation for digital accessibility settlements and lawsuits. For example, in a June 2017 order, a federal judge in New York rejected Blick Art Supplies effort to throw a case out of court that claimed its website was inaccessible. The Judge said the New York City Human Rights Law (“NYCHRL”) and the The New York State Human Rights Law (“NYSHRL”) could be part of the lawsuit.
Convention on the Rights of People with Disabilities (CRPD) is an international treaty recognizing the rights of disabled people to live fully in the world. As of this writing, the treaty has been ratified by 174 nations, but the United States is not one of them. Articles 9 and 21⁴ of the CRPD address digital accessibility, and the CRPD is driving accessibility efforts around the globe. Among other things, these Articles require state parties to “promote access for persons with disabilities to new information and communications technologies and systems, including the Internet.”
International laws: In the global economy, knowledge of international accessibility laws is critical. The Web Accessibility Initiative maintains a list of web accessibility laws and policies around the globe, as does my law office.⁵

Keep these laws “in your pocket.” Remember they are designed to make sure disabled people are allowed to fully participate in public and private life. Why be afraid of that?

U.S. Advocates and Legal Strategies Keep Accessibility Moving Forward

Introduction

Legal building blocks supporting digital access have little value without advocates and strategies that build upon that foundation. For the past two decades there have been three principle legal strategies in the United States that have made the digital world more accessible: lawsuits, Structured Negotiation, and administrative complaints.

Of course, there have been many non-legal strategies too. Every day disabled people are forced to advocate for access to content that those of us without disabilities (yet) take for granted. Calling customer service, submitting complaints, going on Twitter, reaching out in every way possible to get needed access. Most disabled people do not want to go to court, file an administrative complaint, or even use a kinder, gentler dispute resolution process like Structured Negotiation. They just want to participate in the online world.

These advocates, though, keep the law in their pocket, supporting their quest for inclusion, relying on both the foundation and the results of effective legal strategies advancing access.

And of course, many organizations – including giants like Microsoft, Google, and Apple — have embraced accessibility not just to include the disabled public in products and services, but because of the many benefits of accessibility in addition to protecting civil rights.

Accessibility supports SEO, increases market share, creates corporate good will, and improves the digital space for everyone. Apple CEO Tim Cook is lauded in accessibility circles for Apple’s commitment to digital accessibility, and most famously for his 2014 statement that “When we work on making our devices accessible by the blind,” he said, “I don’t consider the bloody ROI [return on investment].”

Structured Negotiation Brings Accessibility Results for Two Decades

Structured Negotiation began in 1995 when my co-counsel and I wrote letters to Bank of America, Citibank, and Wells Fargo on behalf of three groups of blind banking customers and an advocacy organization. The issue was ATMs: not a single one in the United States talked. This meant that not a single blind person could use the rapidly proliferating technology of financial privacy and convenience.

We wrote those letters as an alternative to filing lawsuits, offering to negotiate with each bank about the development of Talking ATMs and other services and technology for blind customers. Four years into the negotiations, with no lawsuit on file, our clients told us about a new issue: online banking. Without accessibility, this new financial industry technology would be off limits to blind account holders.

Because we were in negotiations, and not a lawsuit, it was easy to add a new issue to the mix. In 2000 Bank of America became the first company in the United States to sign a web accessibility agreement with its blind customers. Ever since, the banking giant has been a leader in accessibility. And Structured Negotiation has improved digital accessibility across the country.

After the success of the first banking negotiations, we named that process Structured Negotiation. As I explain in my book, Structured Negotiation, A Winning Alternative to Lawsuits, the name was intended to capture the idea that negotiating without a lawsuit on file, using a particular (and far less expensive and people-centered) structure of opening letter, ground rules document, information sharing and more, was an effective way to resolve legal claims. For the past seventeen years, that has proven to be true.

Major League Baseball, Houston’s transit agency, Denny’s, the nation’s credit reporting companies, Charles Schwab, Kaiser, and Anthem, Inc. are just some of the companies that have engaged in Structured Negotiation with the blind community to improve the accessibility of their websites and mobile applications. It is not a coincidence that Structured Negotiation developed at the intersection of technology and disability. Key aspects of Structured Negotiation are particularly suited to digital accessibility claims.

Structured Negotiation gives clients a seat at the table. Without formal depositions and lawyers arguing about procedural issues, clients in the Structured Negotiation process have a voice in the outcome. Since at its core accessibility is about people and not the law, this is a big advantage of resolving ADA claims about digital access without lawsuits. Structured Negotiation with Major League Baseball about the websites of all thirty teams was successful because the company met blind baseball fans. Equally important, those fans met MLB decision makers.
Structured Negotiation welcomes expertise in a cost-effective non-confrontational manner. The litigation system is broken and expensive when it comes to the use of experts. In Structured Negotiation, without expert affidavits, depositions, and disputes, expertise is introduced when needed and cooperatively. Joint experts are the norm, and client expertise — a valuable aspect of digital accessibility cases — is welcomed.

The Charles Schwab Structured Negotiation was successful because the blind options trader who was the claimant shared her expertise as a daily site user. After the first Bank of America settlement the Structured Negotiation process helped financial institutions around the country launch accessibility initiatives with the help of joint experts.
Structured Negotiation recognizes the value of small steps. An accessible website or mobile application does not (cannot) appear over night. With the cooperation engendered in Structured Negotiation, parties have been able to adopt enhancement schedules that work for everyone. E*Trade became an accessibility champion through Structured Negotiation, rolling out accessibility improvements to its website, mobile app, and complex online trading platform over a two-year period. Denny’s improved access to its smaller website, mobile app, and email offerings over twelve months.
Structured Negotiation is flexible. The early Bank of America Structured Negotiation demonstrated the process’ flexibility. Without being bogged down in a procedure-heavy system, the parties could begin discussing web accessibility four years after the start of negotiations on the topic of accessible ATMs. Something similar happened in the Major League Baseball negotiations. When those discussions began in 2008 the app store had not yet opened. When it did, and the sports giant’s first app included accessibility barriers, we were easily able to incorporate mobile app accessibility into our negotiations. We extended our first agreement, MLB put out a second press release, and has assumed a leadership position in the digital accessibility space ever since.

Structured Negotiation has allowed my clients and I to use the law as a motivator — as a reason to do something beneficial. What’s frightening about that?

Administrative Options — Past, Present and Future

Throughout the Obama administration, and even earlier, the United States Department of Justice was a champion of website accessibility. The agency pursued investigations, filed statements in court, and joined private parties in litigation. The Department published a webpage to highlight its digital accessibility activities stretching back to 2004.

The same zeal for inclusion is of course not expected from the current administration. But while new DOJ-instituted actions may be limited, and no new regulations will be forthcoming, neither do I expect an active retrenchment. Accessibility is too well established in the corporate and government sectors, the foundation is too strong, and there is too much international pressure for accessibility, for the DOJ to halt forward momentum.

The United States Department of Education has also long been an advocate for digital accessibility, understanding that without access, students cannot learn. The DOE has investigated student complaints, entered into settlements, and participated in lawsuits. In June, 2016 the Department announced settlements with seven states, one territory to ensure website accessibility for students with disabilities.

Currently, the biggest news coming out of the Department of Education is a slew of web accessibility complaints filed by a Michigan woman against educational institutions around the country, over 2000 at last count. This activity continues despite the change in administrative priorities. Regardless of your opinion of this strategy, it is raising awareness of the importance of accessibility in educational settings and is leading educational institutions to focus — and include — students with disabilities in their digital offerings.

Courts Weigh In

In the first eight and a half months of 2017 there were 432 lawsuits filed in federal court in the United States about web accessibility barriers. This compares to the 262 lawsuits that were filed in all of 2015 and 2016 combined. The numbers prior to 2015 are even smaller.

With more lawsuits come more court orders. It is my strong belief that fighting about accessibility in court is unwise and expensive. Instead of spending money on lawyers to fight access, it is far better for enterprises large and small to spend money implementing accessibility.

Still, it is undeniable that court actions are currently playing a big role in driving accessibility in the United States. Some recent developments include the following:

On October 3, 2017, a federal judge in California rejected CVS‘ efforts to have a web accessibility case thrown out of court.
On August 1, 2017 Judge Jack Weinstein of the Eastern District of New York allowed a web access class action lawsuit against Blick Art Materials to move forward. The Judge rejected the idea that web accessibility cases could only be brought if there was a tight connection (“nexus”) between the web and a physical place. Judge Weinstein also rejected the argument that the absence of regulations precludes private ADA enforcement for accessible websites: “The court will not delay in adjudicating his 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.”
On June 13, 2017 a judge in the federal District Court of South Florida made history in a web accessibility lawsuit filed by a blind Florida resident against regional grocer Winn-Dixie. The lawsuit argued that the Winn-Dixie website wasn’t accessible and after a two-day trial the court ruled in favor of the plaintiff. The order is believed to be the first trial in an ADA case about website accessibility against a private company. The judge’s order is now on appeal.
In March of this year a federal judge in California’s Central District agreed with the plaintiff in a suit against Domino’s Pizza that the Defendant’s website must comply with the ADA. But the judge also stated that ordering compliance would violate Defendant’s due process rights because the United States Department of Justice (“DOJ”) has yet to issue regulations specifying a technical standard for conformance. This case too is on appeal.
On June 15, 2017 a different judge in the Central District of California refused to throw out a web accessibility lawsuit brought by a blind shopper against crafts chain Hobby Lobby. The Hobby Lobby judge specifically rejected the due process argument, ruling that “[f]or over 20 years, the DOJ has consistently maintained that the ADA applies to private websites that meet the definition of a public accommodation. . . .Hobby Lobby had more than sufficient notice in 2010 [the year the DOJ issued its Advanced Notice of Proposed Rulemaking about web accessibility] to determine that its website must comply with the ADA.

These recent orders build upon a body of accessibility law that has been slowly growing over the past 10 years. Among the highlights are cases against Target’s website, Netflix’s online video-streaming service, and the Scribd online library.

There has been other litigation too. About voting websites, tax preparation sites, and college and university digital properties, including online learning systems and MOOCs (Massive Open Online Courses). Transit websites and restaurant mobile apps. And the hundreds of cases now pending cover the gambut – from the websites of real estate offices to dentists’ offices. More court rulings are on the horizon.⁶

This is where the fear comes from. Fear of lawsuits and fear of lawyers. I wish people wouldn’t let that fear erase the human beings at the core of accessibility. I wish people would remember to go back to “First Principles.” Remember that the law is there to protect the rights of those human beings to read and interact with digital content.

Still, the lawsuits and other strategies are a reality. And as in many areas of law, the best defense when it comes to digital accessibility legal challenges is a strong offense.

Be Proactive: Best Practices for Digital Accessibility

When people are kept front and center, it is easy to remember that accessibility is more than a checklist. The law recognizes this, and a series of best practices for digital accessibility are evident in a large number of legal settlements and a growing number of court orders. Of course, these practices don’t need to wait for legal action. In fact, they shouldn’t.

Just as every responsible organization has privacy and security policies — and the infrastructure to support them — so too should every organization have an accessibility policy with related supports. The list below includes elements of robust accessibility policies and procedures that have been included in various settlement agreements negotiated in Structured Negotiation, as a result of lawsuits, or by administrative agencies. As more lawsuits about web access are filed, these practices will also begin to appear in court orders.

Implementing these practices should save organizations substantial legal headaches. Remembering “accessibility from first principles” will ensure that people are front and center (and behind) all your accessibility initiatives.

Adopt an Accessibility Standard: The international standard for web, mobile, and document accessibility is the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA. This standard is referenced in law and policy around the globe. While part of the federal procurement regulations (Section 508) and regulations governing airline websites under the Air Carriers Access Act, these standards, as noted above, have not been incorporated into ADA accessibility regulations. Still, courts are beginning to recognize the standard, and almost all private settlement agreements, including those reached in Structured Negotiation and after litigation incorporate them. Recently, a federal judge in New York refused to throw out a web accessibility case against Five Guys Enterprises, LLC, finding that “Plaintiff has identified steps that defendant can take to ensure equal access to its website by the blind, such as by using the Web Content Accessibility Guidelines 2.0.”
Designate a digital accessibility coordinator. Put someone in charge of accessibility so the buck has somewhere to stop. Decide carefully where that person sits. At Microsoft, Chief Accessibility Officer Jenny Lay-Flurrie has a C-Suite position. In his 2011 book Strategic IT Accessibility: Enabling the Organization, author Jeff Kline urges a “neutral placement” of the accessibility head so the position can reach across all the different silos that comprise today’s organizations. Kline defines “neutral placement” as “a location within an organization for a business function that is autonomous and not subject to the business agenda of any particular unit or subunit.” This makes sense to me because baking in accessibility (and avoiding legal problems) requires a careful look at many aspects of the enterprise, from development and design to procurement and training. While each organization must consider its unique culture and structure when deciding where any position goes, exercise extreme caution before placing an accessibility coordinator in the legal or risk department. Accessibility must move beyond compliance. Technology is creative and quick; legal departments are cautious and slow.
Include accessibility in all requests for proposals involving digital content and technology: The Americans with Disabilities Act regulations governing private sector public accommodations prohibits discrimination “directly, or through contractual, licensing, or other arrangements.” In the context of the digital world this means making sure you hire vendors who understand accessibility. Don’t just require “following the law.” Specify your accessibility standard and require testing by disabled people (see below) before product delivery.
Include accessibility in all technology contracts: Once a contract is awarded, make sure your accessibility requirements are described with specificity. Think about the level of detail you demand with security and privacy requirements and use that same high standard with accessibility. In the Winn-Dixie order (currently on appeal), the judge found that “the fact that third party vendors operate certain parts of the Winn-Dixie website is not a legal impediment to Winn-Dixie’s obligation to make its website accessible to the disabled. First, many, if not most, of the third party vendors may already be accessible to the disabled and, if not, Winn-Dixie has a legal obligation to require them to be accessible if they choose to operate within the Winn-Dixie website.”
Train staff (and maintain training). Training staff about digital accessibility is not only about educating coders, designers, and content writers about accessibility standards and accessible design principles. Every public-facing staff in your organization must be familiar with the basics of how disabled people use computers and other digital devices, and how to escalate issues to an appropriate person. In my book, Structured Negotiation, A Winning Alternative to Lawsuits, I share stories about a common trigger for many accessibility Structured Negotiations: consumers getting poor customer service from untrained staff. Not surprisingly, staff training was an element of the Winn-Dixie court-ordered injunction.
Adopt testing protocols that include disabled people. Settlements of web accessibility legal actions, whether in Structured Negotiation, at the end of litigation, or as a result of administrative actions, typically include requirements for ongoing testing to make sure accessibility sticks. There are two types of accessibility testing and both are important. Automated tools can provide useful data, but should never be used alone — human input is critical to any testing program. And testing by disabled people must be a regular aspect of a digital program. Usability testing can and should incorporate disabled technology users.
Hire a consultant if you need one. Treat accessibility as you would any other aspect of your organization: if you don’t have in house expertise, hire someone to help. To rely on an old proverb, digital accessibility consultants should not cook and serve you the fish; they should teach your teams how to fish. Always interview at least two or three potential consultants. Check their references. Taking accessibility seriously pays off.
Shout it from the rooftops: Have an Accessibility Information Page on your website. An Accessibility Information Page (AIP) demonstrates your commitment to accessibility to customers and members of the public. And it gives disabled site users a place to go if they encounter a problem — instead of calling a lawyer. Among other things, a good page(s) should clearly state the organization’s digital accessibility policies and services and include both a phone number and email address (or a simple and accessible form) for a site visitor to report a problem or get help. Most importantly, the person on the receiving end of the phone call or email must be prompt and responsive.⁷
Put accessibility enhancements in release notes. Another way companies can let the public know of their accessibility commitment is by including enhancements in standard release notes. In a 2016 settlement agreement I negotiated in Structured Negotiation (without a lawsuit), E*Trade agreed to “include information about accessibility improvements, as applicable, in the release notes for new E*Trade Mobile App releases.” This is one of many factors contributing to E*Trade’s leadership role in digital accessibility.
Make accessibility part of appropriate job descriptions and evaluations: If someone’s job touches accessibility, include accessibility in that person’s job description and their evaluations. This shows staff that accessibility is an important aspect of their work. It is a proactive way to avoid the type of problems that underlie legal action about web access.
Soup to Nuts: Evaluate your systems: Digital accessibility is not only about websites and mobile applications. Emails often contain accessibility barriers. Lawsuits have focused on the accessibility of learning management systems and streaming video services. Digital services are part of stand alone kiosks — kiosks that must be accessible. In 2016 Massachusetts Attorney General Maura Healey and the National Federation of the Blind (NFB) announced a settlement with Pursuant Health, Inc. to make its self-service health care kiosks accessible to blind consumers.

A 2014 settlement with Redbox Automated Retail, LLC, required accessibility of the company’s movie rental kiosks. Among other things, kiosk accessibility typically requires a tactile input mechanism or other means for a blind person who cannot see a flat screen to enter information, and audio output. Different teams may be responsible for different digital aspects of an organization, but a holistic approach to accessibility saves money, leverages in-house resources, and ensures that the public is not inadvertently left out of any aspect of the organization’s products, information, or services.

The goal of these best practices is to bake accessibility into the DNA of an organization. As each new type of technology or information is introduced, accessibility should be there from the beginning. Not an afterthought, which makes accessibility far more expensive, but as an integral way of doing business. Not as a compliance checklist, but as a fundamental aspect of the corporate culture.⁸

The law can help make that happen, but accessibility is so much more than a legal obligation. Accessibility is a civil right, an SEO-enhancer, an aspect of creative and modern web design. Accessibility is how we make the promise of the digital age available to everyone. That, and not fear of the law, should be our motivator.