(Part 1) In Conversation with Lainey Feingold, Legal Rebel
Lainey Feingold is a disability rights lawyer who has worked to make the digital world more accessible since 1995. She helped negotiate the first web accessibility agreement in the United States in 2000. Lainey developed and practices Structured Negotiation, a dispute resolution and collaboration strategy that avoids lawsuits, focuses on lasting change and relationship-building, and has been used to advance accessibility for more than a quarter century.
She is the author of Structured Negotiation: A Winning Alternative to Lawsuits, and is also a consultant and an international speaker and trainer on issues including collaborative problem solving (Structured Negotiation), the digital accessibility legal space, accessible procurement, and best practices for baking digital accessibility into policies and practices of organizations large and small.
In 2017 Lainey was selected as an American Bar Association Legal Rebel — a group of “innovators who are remaking the legal profession.” She has twice been recognized with a California Lawyer Attorney of the Year (CLAY) award (in 2000 and 2014).
Evinced was lucky enough to chat with Lainey about her career in disability rights, and get her thoughts on the landscape of assistive technology today. Here’s the first part of that conversation.
There are many roles people embody in the digital accessibility space. Please describe your role and relationship with digital accessibility.
My name is Lainey Feingold, and I’m a disability rights lawyer representing blind people on digital accessibility issues. I work out of my house in Berkeley, California. And my roles have been many since I first entered this space in the mid-1990s. I helped negotiate the first web accessibility agreement in the US in 2000.
So I do that lawyer thing and some consulting, but I also do public speaking. Over the years I have seen myself become a bridge between what’s happening in the legal space and what the accessibility community needs to know about what’s happening in the legal space. I do the digital accessibility legal update several times a year for various organizations. And I keep my website updated with a lot of content written in plain language. Most recently I updated my digital accessibility global law and policy page with contributions from accessibility leaders around the world. And last year I put everything under a Creative Commons license so people can feel free to use site content to advance digital inclusion
In addition to public speaking and educating through content, I’ve written a book about the way I practice law, which is with collaboration instead of conflict. The book, Structured Negotiations — A Winning Alternative to Lawsuits, came out in 2016 with an updated Second Edition published in 2021.
Digital accessibility is a newer term and one we find ourselves explaining frequently. How would you define digital accessibility?
In my view, digital accessibility is the quality of technology and content that enables people with disabilities to use, consume, and create both.
I like to say digital accessibility is a bridge. When I give talks, I often get an image of a local bridge wherever I’m speaking and say, “On one side is the technology and content of today, which is everything we do on our phones and our computers. And on the other side are people with disabilities. And accessibility allows people with disabilities to use, consume, and create the content.”
What influenced you to pursue work in the disability rights space?
I had been a lawyer for ten years. I was doing union-side labor law and traditional civil rights, meaning race and gender civil rights. But then, I got fired. I always like to share that, especially with young people, because people see me at the other end of the career spectrum and think, “You got fired?!” But, you know, that did happen.
My kids were little, my husband worked in the nonprofit sector, and we had just bought a house. I was scrounging around for a job. I saw a four-month-long opportunity at the Disability Rights Education and Defense Fund (DREDF), and I took it, knowing nothing about disability. Looking back, this is shocking because I had lived in Berkeley since I was 20.
So, four months turned into four years. And during those four years, I got my first exposure to blind people and their need for technology access. I worked with some really skilled, tech-savvy blind people as we were developing ATMs that talk. We ended up working with three major banks on that without any lawsuits in a process that became known as Structured Negotiation.
What made you open up your own shop?
My kids turned seven and 10! By then, I was the litigation director at DREDF, and it was just too much. So I took a leap of faith and came home, here to the extra bedroom upstairs. And I’ve been working from my home office ever since.
What is the elevator pitch for “Structured Negotiation?”
Oh, I should practice an elevator pitch! Structured negotiation is collaborative problem-solving. And I think the reason it works so well in digital accessibility is that we’ve been able to bring blind people into the room with decision-makers. I’ve seen lightbulbs go off in people’s heads.
For example, the case that started the whole concept was about accessible ATMs in the 1990s. We worked with banks and blind people to find solutions so blind people could access their accounts and the bank would meet ADA requirements. I recently found an email from a banker who said, “when I saw your clients unable to get $20 out of an ATM of their own money…” well, it was like “bingo!”
And I’ve seen that repeatedly happen over the years.
Structured Negotiation means that disabled people have a seat at the legal table, which differs from traditional legal strategies. It’s a form of negotiation, with intentionality, around long-lasting change and relationships. Because another thing about digital accessibility is it’s not a one-and-done, you know? Every release is an opportunity to break something. Every new paragraph of content is an opportunity to break something. With a process like Structured Negotiation that focuses on relationships, the lines of communication stay open. It’s less likely that an exec signs a piece of paper and thinks they’re done with the lawsuit — done with accessibility — and goes back to business as usual.
A traditional legal process is more divisive; it forces people to wear hats. Blind people have to wear a plaintiff’s hat. The word plaintiff has its roots in a French word meaning “wretched complainer.” This is how plaintiffs are seen. Whereas in Structured Negotiation, we can say, you have a problem, and we want to help you solve it.
Still, Structured Negotiation is based on the law, and we have a solid legal foundation in the United States. But I do a lot of training and speaking on structuring negotiations, and I often say, “be a dolphin, not a shark.” Structured Negotiation is practicing being a dolphin, not making assumptions, and asking if you don’t get what you want, why is that? Is it because they’re just trying to screw you over? (This is the mindset you must have in litigation.) Or do they need help understanding the issue? Do they not appreciate accessibility as a civil right?
This process gives us a chance to discuss the benefit to the company of doing the right thing for people with disabilities. It gives us a chance to frame accessibility as a civil right, as the difference between inclusion and exclusion, instead of simply a legal requirement.
Could you please share some examples of Structured Negotiation? Some favorite cases, perhaps?
One case that stands out is my work with Major League Baseball. Before that, I worked on accessibility with finance companies, where privacy issues are very apparent. Where, without accessibility, people have to share their PIN or their credit card number with strangers to buy groceries. I always say accessibility is privacy. We also worked on some healthcare issues, which everyone understands. No one wants to share health information. But without accessibility, disabled people have to share confidential information.
When I was first approached to work with Major League Baseball, I thought, well, compared to health and finance, you know, how important is this? But, it made me see that everything that is designed to be done online is intended to be done independently. And that means privacy is always an important aspect of digital accessibility.
We worked with some great blind baseball fans who wanted to listen to the games from their announcers wherever they were in the country or to check out the statistics of their favorite players. And they didn’t want to have to ask for help or share their MLB password. And while an MLB password might not be the same caliber as your health or checking account information, the truth is the digital world was made for independent use. And accessibility is the thing that makes independent use possible for disabled people.
So we brought blind baseball fans together with MLB executives, and the barriers came down. The MLB execs didn’t see someone suing them; they saw fans. They saw baseball enthusiasts, not adversaries or enemies. And we were able to work together.
Another great case was with a young woman named Rio Popper, who was only seven when we started working with Cinemark to provide audio descriptions at their theaters. Rio was blind, and her mother, Helen, was a great activist and advocate for her daughter and for other blind people. Originally, it was a hard sell. I talk a lot about the win-wins and successes, but not every introductory letter is met with an open, collaborative mind. Structured Negotiation is a strategy to get to that point.
But with Cinemark, after involving other blind movie lovers, we eventually did get there, and Cinemark wanted to test the audio description solution with our clients. This is so transferable to the digital world at large. Anyone at any company who has an idea should make sure disabled people are in the room as early as possible to create truly accessible experiences.
Anyway, a group of myself, my colleague Linda Dardarian who was also working on the negotiation, Rio, Helen, and others got to have a private showing of the Cars movie in downtown San Francisco. I think there were seven blind people. And the head guy from Cinemark witnessed these people — these customers — experience the movie with audio description. Although there’s a slight delay with audio description, Cars was a funny movie, and people were laughing and enjoying themselves. The executive got to see that for himself and what an impact the audio description had on the moviegoers.
Those moments are the highlights. I can’t say every case was as successful, but bringing people together in the same room to see commonalities is always a highlight. I think developers and designers want to make their technology available to as many people as possible. They want it, though they might not understand how to do that for users with disabilities yet. So that’s our collective job in this community, bringing people together.
You have a slogan: “spend money on access, not lawyers.” Can you please expand on that?
Yes, I do say that. But I also need to say that the ADA is a civil rights law, and it depends on lawyers enforcing it. I’m not saying “no lawyers,” and we’re not saying “no lawsuits.” Lawsuits are always an option. And there are a lot of ethical lawsuits that get filed — that need to be filed.
However, whether you’re in a lawsuit and pivoting to Structured Negotiation, which some people have started to do, or you approach it like my clients and me and skip the lawsuit altogether, it’s much better to spend money on a solution than fighting. That’s another way to say it: spend money on making accessible solutions instead of fighting.
Really, it’s the same concept as shifting left — spend money on shifting left by thinking about and implementing accessibility in the design phase, instead of waiting to spend money to fix mistakes later.
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For more from Lainey, please visit her website: LFLegal.com