Moving the Ball Forward on Digital Accessibility: A Conversation with Attorney Lainey Feingold

Lainey Feingold, Law Office of Lainey Feingold

photo of Lainey Feingold

Lainey Feingold represents persons with disabilities under federal and state law, primarily in matters seeking class-wide relief. Her principal work is with the blind and visually impaired community on technology and information access issues.

Along with co-counsel Linda Dardarian of Goldstein, Borgen, Dardarian and Ho, she has developed “Structured Negotiations,” an alternative to litigation emphasizing collaboration and focusing on solution. Using this method, she has negotiated more than 50 settlement agreements without filing a single lawsuit with some of the largest institutions in the United States.

Lainey has long worked with the blind community nationally in successful efforts to obtain Talking ATMs, accessible websites and mobile devices, tactile point of sale devices, accessible (audible) pedestrian signals, talking pill bottles, audio description equipment, and alternative formats including braille, audio, electronic and large print.

Lainey was a founding steering committee member of the Disability Rights Bar Association, a national organization of disability rights lawyers. In February 2014 Lainey received one of 57 California Lawyer Attorney of the Year (CLAY) awards.

Lainey Feingold is a nationally-recognized disability rights lawyer who primarily represents  people who are blind or visually impaired on technology and information access issues. She is known for negotiating landmark accessibility agreements and pioneering the collaborative advocacy and dispute resolution method known as “Structured Negotiations.”

PEAT recently spoke with Feingold about her work around digital accessibility and its impact on the employment of people with disabilities.

PEAT: Can you please tell us about your background? How did you get into disability advocacy and, in particular, your work involving digital accessibility?

Feingold: When I graduated from law school in 1981 I represented labor unions and workers. Not surprisingly, my career took some twists and turns, and in 1992 I went to work for the Disability Rights Education and Defense Fund (DREDF) in Berkeley, California. I stayed at DREDF for four years, and during that time I began working with the blind community on access to banking services, including ATMs. The ADA was still a relatively new law at that point. Initially we focused on Talking ATMS that people who are blind could use independently and on alternative formats for print materials like bank statements.  Later we expanded the effort to include online banking and mobile applications.

PEAT: What types of individuals and organizations come to you for representation? 

Feingold: Right now I represent only individuals who are blind, and blind advocacy organizations. In the earliest banking accessibility cases we represented the California Council of the Blind, an affiliate of the American Council of the Blind (ACB), as well as many individual Californians who are blind. Since then I’ve represented blind individuals from around the country, ACB and its affiliates in many states, as well as the American Foundation for the Blind. All of the issues I work on start with a call from a person with a disability or an organization frustrated with a lack of accessibility and unable to resolve the problem without legal help.

PEAT: You’re well known for pursuing "Structured Negotiations" instead of filing lawsuits in most cases. What are the advantages of negotiating rather than taking a company to court?

Feingold: Structured Negotiations is an alternative dispute resolution method that avoids the expense, negativity, and procedural battles of traditional litigation. One of the many advantages of the process is that it allows companies and their customers with disabilities and members of the public to meet, form relationships, and work on solutions. Especially when you’re talking about websites and mobile applications, technology is always changing. When a company gets to know people with disabilities at a round table instead of a deposition table it helps ensure that future policy and technology decisions are made in ways that will avoid accessibility problems. Structured Negotiations is more cost effective than litigation because you are not paying lawyers to fight about procedural issues unrelated to the real access barriers. Information sharing is more efficient because there are no formal depositions or written discovery. Instead, needed information is shared informally and (mostly) without arguments about what is and is not relevant. And unlike in litigation, experts aren’t battling each other, but are jointly helping everyone resolve technology challenges. 

Of course, Structured Negotiations can only work when a company says “yes” to an invitation to negotiate. Fortunately, most often the companies we’ve approached have said just that.

PEAT: What are some of the outcomes you're most proud of over the course of your career?

Feingold: Well, the initial Talking ATM initiative was very successful. When we started there were no ATMs that talked in the world. The first three banks we worked with—Bank of America, Wells Fargo, and Citibank—now have ensured that every ATM is a Talking ATM, and the technology continues to spread across the globe. I’m also proud to be part of the community of advocates, experts, lawyers, corporate and educational champions, and technologists who are making the digital world accessible to everyone. I’ve negotiated web and mobile accessibility agreements with some of the country’s biggest entities, including Bank of America, Major League Baseball, Weight Watchers, and WellPoint (an owner of Blue Cross/Blue Shield companies in the U.S.). I’m also proud to be currently working on efforts to make sure that people who are blind can safely and privately take prescription medications, negotiating agreements for talking prescription labels with Walmart, CVS, Walgreens, Caremark and others.

PEAT: What are some of the key policy issues impacting your clients and other accessible technology stakeholders? Are there any regulatory developments you're particularly excited about about?

Feingold: First the good news—I’m excited about the enforcement work that the U.S. Department of Justice (DOJ) is doing to make sure digital content is available to everyone, regardless of disability. For example, DOJ reached an important settlement with edX, the provider of online Massive Open Online Course (MOOC) software, to make sure it is accessible to and usable by people with disabilities. And the DOJ recently filed court papers in cases brought by the National Association of the Deaf against Harvard and MIT reaffirming that the ADA covers websites and that websites must be accessible. I’m disappointed, however, that there’s been a delay in the DOJ issuing web and mobile accessibility regulations under the ADA. Even though the law already requires it, regulations would help raise the profile of digital accessibility and bring the stragglers on board.

In other regulatory news, I’m looking forward to December 12, 2015, which is the date by which airline websites have to be accessible under new Department of Transportation rules. And of course, we’re cautiously optimistic that the U.S. Access Board will finalize the so-called Section 508 refresh before the end of 2015, updating the federal standards on accessible information and communications technology.

PEAT: What general advice related to digital accessibility do you have for employers and businesses?  

Feingold: My advice is simple: all digital content must be available to everyone. It’s not only the law, but it’s good for business and it’s the right thing to do. If you don’t have a plan in place, today is the day to start; not tomorrow and not next week—today. And let the public and your customers know of your efforts. Too many companies are afraid of saying anything about digital accessibility for fear of criticism. I disagree entirely. Every website should have an easily findable accessibility information page with a phone number and an email address that can be used to report problems. And most importantly, feedback that comes in through those channels must be taken seriously and acted on. Identified barriers must be eliminated. If site owners followed this advice, you’d see a dramatic drop in the amount of legal activity around digital access. I’m all for taking access and usability out of the hands of lawyers and into the hands of developers, designers, content providers, and policymakers.

PEAT: Do you have tips for workers and job seekers with disabilities related to employment and digital accessibility? 

Feingold: Earlier this year the DOJ signed settlement agreements with three cities requiring online job applications and other employment information to be accessible. This is critical, but much more work needs to be done to make sure the employee-side of the digital world becomes and remains accessible. The burden should not be on job seekers and employees, but unfortunately it’s going to take advocacy to make digital employment tools available to everyone. Job seekers and workers who need accessible technology need to insist on their right to apply for, get hired, hold on to, and be promoted into jobs based on their abilities. Federal agencies and the private bar should be looking for model cases to bring awareness to the fact that employee-side software must be fully accessible. Third party software vendors must be held to task and not be allowed to sell software that cannot be used by all employees.

PEAT: In your opinion, what are the most important things employers could do to improve the accessibility of the technology they use in the workplace? 

Feingold: Employers should test all new software and all upgrades and refuse to purchase anything that is not accessible to and usable by everyone. Employers should include language in all requests for proposals (RFPs) and purchase contracts requiring both accessibility and quick remediation of accessibility bugs. Employers must listen to their workers with disabilities to better understand their needs and the barriers that prevent their full participation in the workplace. And if an employer says they have no employees with disabilities? Change your hiring practices!

PEAT: In addition to the law, what are some other key tools for promoting and increasing digital accessibility? Do you have thoughts on how a collaborative group like PEAT can be effective in these efforts?

Feingold: Law is only one tool for promoting and increasing digital accessibility, and frankly, it should be a tool of last resort. Advocacy organizations and internal industry champions have been critical for moving the accessibility ball forward. Efforts like PEAT are vitally important. PEAT starts with the word partnership, and it’s a word I value. True and lasting accessibility must be integrated into all aspects of an entity’s operations, and to do that partnership is required. People with disabilities, employers, vendors, content providers, web developers, C-suite decision makers, quality assurance (QA) folks, usability teams…these are just some of the people needed to create a robust digital accessibility landscape in corporate America. Partnership and collaboration are the glue to hold it all together.

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Comments

Submitted by Kelly Pierce on Mon, 2015-07-20 07:00

To clarify Lainey’s comments on talking ATM’s on the banks mentioned, only Wells Fargo installs every ATM as a talking ATM. Bank of America and Citibank only provide one talking ATM at each location, the minimum required by law. I know because I have stood in line at both banks to use the talking ATM when the other, inaccessible ATMs were not being used.