Transcript of the webinar PEAT Talks: The ADA and Accessible Workplace Technology, featuring Bobby Silverstein of Powers Pyles Sutter & Verville, PC and recorded on July 21, 2016.
Good afternoon everyone. Thank you for joining us. I'll ask leaders, Bobby, to unmute your phone so you'll be able to talk here momentarily. I want to welcome everyone to PEAT Talks. This is a virtual speaker series from the Partnership on Employment and Accessible Technology. On every third Thursday of the month PEAT Talks showcases various organizations and individuals whose work and innovations are advancing accessible technology in the workplace.
My name is Josh Christianson and I'm the project director for PEAT. I'll be hosting today's special talk, and I really appreciate you all joining us. Before we get started I'm going to quickly review a few logistics. We will have time for questions and answers, so please enter your questions into the chat window as we move along, and we will leave time at the end to address some of those. You can use the chat window if you're having any technical difficulties, so if you have any issues with the plan form or questions at all, you can put them in there and our team will respond to you as best we can.
And, just so you know, you can also download the presentation on peatworks.org if you're having any issues with Adobe and the player itself. And following this, we will have an archived recording, which will be posted online after the event, which you can access and share as well. You see the information on the logistics slide there as well, but please chat if you need any support.
We'll also be live tweeting today's event from our account, which is @peatworks, that's @p-e-a-t-w-o-r-k-s, so feel free to join us and follow along the discussion there using the hashtag peattalks, that's #p-e-a-t-t-a-l-k-s, and we can continue and have a multiple conversation there.
So without further ado, I'm very excited to introduce our special guest, we are pleased to welcome Bobby Silverstein, who is and has been a critical member and part of the PEAT Project. Bobby was staff director and chief counsel to the Senate Subcommittee on Disability Policy and chief aide to Senator Harkin, the sponsor of the American Disabilities Act. So huge role in all of the work that went around the building, the super important policy and action, and we're glad to have him. He is currently a principal at the law firm at Powers, Pyles, Sutter & Verville. I hope I got those names right; Bob.
Thank you. Bobby is joining us today to talk about the ADA, specifically about accessibility workplace technology. The topic is at the core of what the PEAT Initiative focuses on, so we're glad to have him with us to share his expertise and information and answer any questions you may have. Of course with the 26th anniversary of the ADA coming up next week, on the 26th, this is an important conversation to be having. Today Bobby will be sharing details with us about the current Department of Justice open comment period regarding the supplemental advanced notice of proposed rule-making, which proposed accessibility requirements for online services, programs, and activities provided to the public, whether it's by state or local government. So we're going to talk a little bit of that, including many employment-related tools and resources.
And in this conversation, we'll also talk about the sell agreements between the DOJ and employers and other entities, so really going to tap into his expertise on the ADA and what's currently happening, the conversation as it relates to workplace technology.
So, again, we'll be doing this Q&A style with myself and Bobby as kind of an interview format but also encourage you all to use the chat box on Adobe to put in your own questions, and we'll field those as we can. So, Bobby, thanks again, and without further ado, I think we'll jump in here.
So 26 years ago, when the ADA was being crafted, I'm curious kind of what you all were thinking about technology and future needs regarding the laws and the Act, if at all.
Well technology certainly played a central role in ensuring effective and meaningful access for people with disabilities. Whether we're talking about elevators or lifts on buses or captioning, provision of auxiliary agent services to people with disabilities, relay systems for folks who are deaf and hard of hearing, technology definitely played a central role. Now if you ask the next question, what about the Internet, well, clearly, the Internet, as we know it today, did not exist at that point in time. But in 1991, when we had our first set of regs, it was very, very clear by Department of Justice that they wanted to make sure that the regs would be interpreted, over time, to keep pace with developing technology.
Great. Which is really why PEAT is around and why it exists. So I want to get into that question. And it's a good distinction, I think, for our audience to understand that PEAT really is focused on accessible IT and the Internet communication. So, within the context of the ADA, what is the argument for accessible ITT as it relates to employment? You alluded to the fact that it's supposed to — the Act is supposed to keep up with emerging technology. So what's the argument for successful ITT and employment?
Let me go start with the specific answer, then go general, and then get back to specifics if I could.
I totally agree with statements by the Department of Justice, including a statement recently made that there is no doubt that the ADA covers website accessibility, no doubt whatsoever. Now let's get more specific now or explain what I mean in an employment context and how one would reach that conclusion. And I think you have to start with framework under both Title I, employment, and Title II, state and local government, where what the ADA regs and the statute says, it's unlawful to discriminate on the basis of disability in regard to recruitment, advertising, job application procedures, and all other terms, conditions, and privileges of employment. In other words, what is discrimination? It is the failure to provide opportunities that are as effective and meaningful as those provided to others. So the regs say that you cannot contract or make arrangements with anybody else, including vendors, if that relationship has a discriminatory effect. The regs will say —
Bobby, sorry to interrupt. Can you give me a concrete example of what that might look like.
Well that's where I'm going.
But, first, let me jus try to give you the general and then I'll give you specifics.
But, see, let me lay the conceptual foundation. And then there's this other provision that says you can't adopt criteria or methods of administration that have the effect of denying effective and meaningful opportunity. So if you take that broad framework, then you ask the question is, well, how do you make information and data available to applicants, to employers? And the answer is, it has to be made in an effective and meaningful way. And so when an employer uses the Internet or an Intranet to make data and information available it is clear that that information and data made available through the Internet must be accessible to people with disabilities.
Okay. Thank you. So, speaking of — we alluded to talking about the DOJ earlier and we were going to cover that today. In the past few years, there has been an increasing amount of interest and activity from the Department of Justice in the form of settlements. Could you give us a recap of what has happened and what the potential kind of ramifications and consequences for those are?
Sure, I'd be glad to. One of my projects was to read the 167 settlement agreements between Department of Justice, employers, public and private sector, private entities, and state and local governments. And state and local governments is part of a program of project civic access. So in these 167 settlement agreements, they, DOJ has addressed a number of issues. And let me try to give you a quick overview. First issue was employment websites. And a typical settlement agreement between DOJ and an employer requires that the employer ensure employment opportunity websites and job applications conform to what's called the "Web Content Accessibility Guidelines," WTAG 2.0, level AA success criteria. And what this means is that not only is the information and data provided on the website for nondisabled folks, it must be made accessible for people with disabilities in accordance with specific international standards.
Now that's only one of the many things that these DOJ settlement agreements deal with. Not only do they talk about, again, specifically in terms of employment, but they talk generally about websites. They talk about accessibility of mobile applications. They talk in terms of all kinds of different forms of information and communication technology. They also, interestingly enough, make it crystal clear that, again, using the general concept that I described before is employers or other covered entities, entities covered by the ADA, cannot make arrangements with vendors if those arrangements or contracts have a discriminatory effect. So an employer can't say —
So what does that mean? Yeah, what does that mean?
That means if the vendor — if the employer says, "Listen, I have a vendor who does my website," the person with a disability, it doesn't matter whether it's the employer or the people that contract with, the employer has that obligation to make sure the website's accessible.
Everyone is kind of covered by it, and there's no workaround, per se.
By contracting with somebody else and blaming, a job, blaming it on the vendor who designed the website.
That's not okay.
So I'm glad you read the 167 so that we don't all have to. I'm excited to tell folks we are taking some of the work that Bobby's done and going to pull out some of the highlight threads and post that on our site and share that resource, which is really exciting, because there's not anything out there that really looks at all of the settlements, and we hope to track them and see how they relate to employment.
I wonder, Bobby if you could kind of give us one concrete example of one of the settlements that had one of the strongest correlations to employment and what was it about and what was the issue at hand? Well, again, all of them really dealt with the same — the employment ones dealt with the same issues; that you and I know that in 2016, that the gateway to employment is often the Internet, because job applications — job applicants, they research opportunities online, they use the Internet to learn about potential employers, and employers use them to conduct job-related testing, provide training to employees, and share information about fringe benefits.
So there was a recognition that the employers used them for not only to announce but no actually review job applications. And DOJ said explicitly that not only the employment opportunity websites must be accessible but the job applications must also be, and they must conform to specific standards.
Now what's also interesting in some of these settlements, Josh, is that they go beyond just the requirement and the standards. They also say that you have to adopt policy. You have to distribute the policy to your other employees within the company, as well as to vendors. You have to evaluate. You have to test. You have to develop accessibility plans. You have to ensure feedback by people with disabilities. You must provide training and guidance, and you have to identify a responsible individual or office to coordinate. So what they're saying —
All of that is part of the settlement?
All of that is part of the various settlement agreements. Some of them include some of that, some of it include all. But when you look at the settlement agreements in their totality, that's what is required; in terms of requirement, a set of standards, that you can't have contracts or arrangements and then what we call these methods of administration.
Great. Thank you. So I want to encourage folks, don't forget, if you've got questions, I've got a few more, but we're going to leave time for you all. So if you want to get questions into Bobby, be sure and put them in the chat box.
Before my next question, which we're going to stay with the Department of Justice, I do want to make a quick plug, because you mentioned, you know, career platforms and the application process, and for especially employers that may be on the line, I want to just plug the Talent Works tool, which is collaborative effort, and Bobby has helped on that. But we have on our website peatworks.org. You can go to Talent Works and get tips and tricks, leading practices to make websites and career platforms accessible. And if you don't see what you need there, there's places to give feedback and ask for more. So I would encourage folks to check that out. As Bobby just outlined, it is required.
So, speaking of the Department of Justice, they recently put out a supplement advanced notice of policy rulemaking in regards to Title II of the ADA. Bobby can you explain a little bit of what this is and how people can get involved.
Sure. What we had, again, back in 1991, when we had the original set of regs, we had those general statements of policy; that you had to ensure equality opportunity effective and meaningful opportunity to review and use the data and information. And we didn't have the Internet. We have it now. And so over time, DOJ has looked to determine whether or not they needed to clarify the standards that would apply with respect to accessibility of ICT, particularly, websites. So in 2010 they issued what's called an "advanced notice of proposed rulemaking," articulating the direction they were going and asking a number of questions.
Very recently they published in the federal register a supplemental advanced notice of proposed rulemaking. And in that document they asked 123 specific questions where they want the public to provide comments on, and the comment period is open until August 8th of 2016. And let me give you an example of the kinds of the topics for which they are looking for comments.
They're looking for what is the meaning of web content? What do we mean by web content? What standards for web access should we use WTAG 2.0 AA. What's the timeline for compliance? Should it be immediate? Should it be in the year? Should there be differences with respect to different aspects of web content information? Should it be different for captions for live audio content? So they've asked questions about what should be the timeline for coming into compliance. They've asked should there be special alternative requirements for small public entities and special districts. And, remember, Josh, what's important is that this supplemental advanced notice only deals with state and local government. They have decided to have a separate proposed rule at some point in time for public accommodations.
They've also asked for comments about certain exceptions. Should there be exceptions of different policies for archived web content, for preexisting conventional documents, for content that is referenced, third party web content that's referenced on a website? And these are a number of the kinds of specific questions that they are asking. And, again, they have identified for the public 123 question that is they would like comments for.
Thank you. And as I recall, because I reviewed the summary we have on peatworks.org, I would encourage people to check it out there. There is a brief summary about all of this. You do not have to answer all 123. So you can go on and look at the questions and answer which ones, you know, interest you. You do not have to go through all 123. You can answer one if you want. So you can find more information about that and where to go to answer the questions on our website. I encourage folks to check it out.
We've got some questions coming in. I want to get one more to you, Bobby, before I start fielding them from the crowd here. So, in regard, you just kind of outlined what this "SANPRM" means — I mean, what it is. But I wonder if you could tell us a little bit, in your opinion, what do you think it means? What are the potential consequences related to kind of future regulations?
Again, the Supplemental Advanced Notice of Proposed Rulemaking" will provide the basis for a proposed rule, which will include clarifications to the requirement that exists and has existed since 1990 when the ADA was passed. So what I expect, I expect — and it won't be in this administration because there won't be time — that the next administration will be issuing a proposed rule and, ultimately, a final rule, not only for state and local government Title II of the ADA, but Title III as well, public accommodations. And at some point in time, I expect you'll see more clarity from the EEOC, Equal Employment Opportunity Commission, with respect to the application of the Title I regs to accessible IT as well.
Great. Thank you. We had some questions come in, and you have sort of addressed them, but just to be clear and make sure that they're addressed, someone was writing about, you know, do state governments have to adhere to these regulations? And they basically said they have heard within their departments sometimes that, you know, state regulations are there. That it's not necessarily — they don't have to maintain the federal regulations and they don't apply to that state. And also that, you know, the state has said we just don't have the budget to adhere to those accessibility guidelines. Could you address that person's inquiry and concerns.
Sure. And, again, of the 160 — what did I say — -67, -68 settlement agreements, between the Department of Justice and agencies, it's 167, I'd say three quarters of them are with state and local governments. And what that means is, and what the settlement agreements do, again, is they say you have to comply, you have to comply with specified standards, and you have to comply within a specified period of time. And, if you're part of the settlement agreement, you may have to do those other things as well, including share with DOJ at specific policy, do ongoing evaluations testing, develop accessibility plans, provide feedback training guidance and identify responsible office. And in some of these settlement agreements with state and local governments they're requiring you to hire an outside consultant.
Thanks. Thanks, Bobby. We had another question come in, which we have resources for. But it basically asks about guidelines that exist between — responsibility between the employer and the employee as it relates to access to technology, and especially with the costs advancing and technologies changes, you know, is the employer fully responsible or does the employee bear some responsibility to make sure their own employment experience is accessible?
Well, with respect to individuals, if we're talking in terms of what is not a reasonable accommodation for a particular individual, that is subject to the general rules of reasonable accommodations. Assistive technology is listed as an example of an accommodation. So when you look at the general rules you look at whether or not a person has a disability, whether there is a documented need, there is an interactive process, and, ultimately, you look at the preference and priority of the individual. But the ultimate decision is whether or not the employer makes the decision as a specific accommodation. But the ultimate standard is does it ensure effective and meaningful opportunity for the individual? In the case of accessibility, we're talking about the same opportunities to — same information, same tasks, same privileges and opportunities.
Now, whether this person it knows it or not, they also raise a fundamental conceptual question, and I have a personal opinion on that. And that is whether or not —
I'm sure you do.
— whether or not websites and other ICT should be treated in a way comparable to the way we treat buildings and facilities. And what I mean by that is we don't wait for an individual with a disability to walk up to a building. We expect that the premises will be accessible, with or without an individual making a request. And to me, and I've seen this stated by state CIOs; that we're talking about digital access, where the website is kind of form of an infrastructure that needs to be accessible, whether or not there is an individual with a disability who is an applicant or an employee.
Awesome. Thank you. I'm going to wrap us up with one more question. I see people are typing. You can go ahead and put those in there. We can address those after the fact. You could send them to us at email@example.com. We would be happy to address your questions. So even though I'm going to wrap up and get Bobby off the line here, feel free to get those questions coming and we can circle back somehow.
So, just in light, to close up, I know I am and the PEAT team and many, many people here are celebrating the ADA and all the hard work that and others put in to get that landmark piece of legislation through. So that's next week, it's the 26th, 26th year. But if you had to look forward and guess where you think we'll be in ten years, do you have any sense of how the ADA might be applied in new and different ways in the future?
Again, I can't tell you what the future will look like, but I can tell you — and, again, if I sound like a broken record, it's intentional. Because when we talk about access to data, access to information, what we're talking about is something very simple, and it's a very simple question you have to ask; are we ensuring effective and meaningful opportunity, the ability to access the same information, to be able to perform the same test, to receive the same privileges and opportunities as everybody else? And so I can't foresee what ten years, the new technologies, but I can tell you that that standard will apply today, tomorrow, ten years from now, and 50 years from now.
Great. Great. Well thank you for making that happen, and thank you for taking the time to discuss that with us today. We've answered some questions in the box here. We're going to wrap up for the time being. That's all the time we have for today. I want to, again, ask people not to forget, we do this every month, and we have a PEAT talk next month on August 18th at 2:00 p.m. and our guest will be Rob Sinclair from the International Association of Accessibility Professionals. And he's going to be discussing their very, very recent merger with the global initiative G3 ICT, so I would encourage you to come here about their combined efforts and, you know, how that relates to the professionalization of accessibility technology, which is really exciting. You can find the registration link of peatworks.org or look for an e-mail from PEAT with more information.
So without further ado, I'd just like to give Bobby a special thanks for speaking with us today. It's an honor to have you on and to work with you always. And for everyone out there who took the time to join us, appreciate it, and hope you have a great rest of the afternoon. Thanks everyone.