(Part 2) In Conversation with Lainey Feingold, Legal Rebel
Evinced was lucky enough to chat with Lainey Feingold, a disability rights lawyer, author, and speaker. Please find the first part of our conversation here. In part two, Lainey discussed overlay companies, important accessibility cases, and building a culture of accessibility in the workplace.
Let’s talk about overlay companies. How is it that they continue to market themselves as reducing legal risk, and yet they — themselves — keep winding up in lawsuits?
One reason there is significant marketing by some overlay companies is that they have received a lot of venture money and have put a lot of that money into marketing. My primary source for information about the numbers of lawsuits filed in the United States is the Seyfarth ADA Title III blog and the UsableNet annual report showing how many lawsuits have been filed year over year. That number is largely increasing, and some companies that have been sued before are being sued again. According to the report some of the companies being sued have used an overlay. It is not necessarily the overlay companies being sued, it is organizations getting sued that have an overlay on the site that was the subject of the lawsuit.
[Editor’s note: According to the UsableNet’s 2022 Year End Report, there were 4,061 ADA-based cases filed in 2022, up from 4,011 in 2021, and 3,503 in 2020. Over 600 lawsuits (19%) were filed against companies that had received a previous ADA-based case. Almost 600 companies with an accessibility widget on their website received a lawsuit in 2022. See the full Year End Report for more.]
That said, the numbers are somewhat distracting because the numbers, in my view, too often create fear, and fear leads to quick fixes and a lack of focus on true digital inclusion. I also have spoken to many site owners who don’t know that an overlay product does not create an inclusive digital experience for people with disabilities.
People must use due diligence when it comes to the accessibility of digital products — the same kind of due diligence when choosing any vendor. If you Google the term “accessibility consultant,” because of strategic marketing dollars, the top results might not be the best resources. For anyone new to the issue I recommend the Overlay Factsheet to learn more.
What are the three most important cases in accessibility law in the last year?
Well, things are happening so fast that it takes a lot of work to keep up. I write legal updates on my site, LFLegal.com, so that’s always a good place to find information about recent legal developments in the accessibility and disability space. I can think of a few things to keep an eye on.
First, I’m paying close attention to how two US Government Agencies have warned companies that some AI hiring technology can discriminate against disabled applicants. Companies and other organizations often use tech when hiring new employees. This tech may help a company review resumes, analyze video interviews, and offer information about a job candidate. But, this technology can make it harder for disabled people to get hired. For example, technology that analyzes a person’s voice may make it harder for someone with a speech impairment to get hired. This may happen even when the person is qualified for the job. Two parts of the US Government wrote about this kind of tech last year, explaining how to avoid discrimination against disabled people with these types of hiring tech. There is a pending lawsuit about one company’s use of AI hiring technology and I’m watching that closely.
Next, the proposed web and software accessibility legislation introduced in the United States Congress last fall is worth looking at. I’m in favor of the principles behind this bill. And I hope Congress does the right thing and passes legislation that firmly embeds accessibility requirements in our nation’s laws. Yet no one should wait for passage to make websites, applications, and other technology accessible.
There was also a recent settlement in a lawsuit filed by a deaf man who sued a company for failing to have captions on the virtual reality (VR) games and programs it offered the public. It’s the first case about captioning Virtual Reality content that I’m aware of. The man could not use the games and other aspects of the company’s VR service without the captions. At first, the company tried to get the case thrown out of court, but the judge disagreed and said the lawsuit could continue. The suit argues that not having captions violates the Americans with Disabilities Act (ADA) and laws in New York. Sometimes a single order in a case like this can significantly raise awareness of the need for accessibility for a particular type of technology or in a specific sector. I hope the settlement of this case has that impact when it comes to captions for virtual reality apps, games, and other programs.
Lately we’ve avoided the term disabled in favor of simply saying “users of assistive technology.” What do you think about that? (This is not a knock on anybody, we honestly don’t know and are asking everybody we know.)
I’ve been really influenced by this 2014 article by the wonderful Sara Hendren called “All Technology is Assistive.” Especially now with so much accessibility (often shortened to a11y for the 11 letters between a and y in the word) built into mainstream technology, I don’t use the term assistive technology much. I also think not using it is a good education tool. Like — I use a keyboard for input, some people use their voice, some people use a mouth stick, we can all input content if things are designed for everyone.
I don’t think there is a universal answer — after all, CSUN changed its name a few years ago and now calls itself the CSUN Assistive Technology Conference. I saw that move as a mistake, because they dropped the old name — “International Technology & Persons with Disabilities Conference.” A mouthful, but at least it had the word “disabilities” in it. People with disabilities are the heart of digital accessibility.
We love how you talk about accessibility being founded on relationships with people. Business is also founded on relationships with people; how can companies build a culture of accessibility?
A culture of accessibility is also about a culture of disability inclusion, about the culture of the company as a whole. A good culture of accessibility depends, I think, on both top-down and bottom-up actions. There has to be room for everyone to participate. I love champion programs and ERGs focused on disability. I love celebrating small successes.
One big key to a culture of accessibility is hiring and promoting people with disabilities. That’s job number one. I was talking to someone at a big company who was excited about a team that was doing a really great job with accessibility. She wanted to find out why that team excelled on digital inclusion, and found out that they had a deaf person on the team. Of course they did!
In addition to hiring, my recommendation is to bring disabled people in! Host lunch-and-learns, welcome nonprofits, pay consultants, and have a self-disclosure, self-ID program. Actively encourage a culture of disability inclusion and you will soon have a culture of digital accessibility.
What do you wish people would ask you, but don’t?
I do a lot of public speaking, and I like and value the questions audiences ask me. But, I wish people outside of our fields, outside of digital accessibility and disability rights law, were in the audience to ask me their questions!
I’ve been in the digital accessibility space for more than a quarter century and know I have a lot to offer mainstream organizations in a variety of sectors — HR companies, healthcare companies, procurement organizations and many more. I’d love for some of these sectors to recognize their need to learn about digital accessibility and the accessibility legal space. So it’s not so much “what” I wish to be asked, but rather “who” I wish would ask.
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For more from Lainey Feingold, please visit her website: LFLegal.com