Digital Accessibility

Five Things Every Lawyer Needs to Know About Digital Accessibility

Digital accessibility is about making sure technology is available to the broadest range of users, including people with disabilities. In the legal context, this means thinking about disabled lawyers, witnesses, law office staff, and clients (including potential ones) every time you purchase technology and offer content.

And it means keeping up to date about accessibility developments impacting the clients you serve.

Have a website? Send email? Share documents? Sign contracts? Thinking about a firm mobile app?  These are all points at which digital accessibility must be part of a lawyer’s conversation.

Have clients with websites, apps, and information? Or technology unique to their fields (#HealthIT? #FinTech? #MedTech? #RetailTech?) Your clients need to know about accessibility too.

The time to start is now. Here are five things every lawyer needs to know about digital accessibility.

Digital Accessibility Means Disabled People Can Use Technology

Digital accessibility recognizes that each of us uses technology differently.  Blind people listen to digital content or read it in braille instead of reading with their eyes. Software on computers and mobile devices, and specialized braille displays, coupled with information designed for accessibility, make this possible.

Deaf people need captions to consume video content. People who cannot hold a mouse (perhaps a senior with Parkinson’s or a veteran with injured hands) rely on a keyboard to navigate websites.

My blind friends and clients include lawyers, architects, professors, executive directors, psychologists, parents, and scientists. They depend on accessibility to do their work, interact socially, and build their communities.

That accessibility includes websites and mobile apps coded and designed to international accessibility standards, most commonly the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA. But good coding practices are not enough. Quality assurance procedures, testing designed to prevent and diagnose accessibility barriers, business process that remediate them, customer service protocols, and staff training are also necessary.

Accessibility is not a one and done aspect of any business, including a law firm’s.  It is an ongoing commitment that works best in a culture of accessibility.  Many companies have it, and are starting to talk about it.

Organizations like Microsoft, Capital One, and the BBC share stories of the accessibility culture; recognizing that accessibility is not just good for disabled people, but good for business.

Color contrast requirements and navigation tools make an accessible website easier for everyone to read, including boomers with failing eyesight. Captions aid all millennials checking devices in noisy environments. Accessibility improves SEO. These factors and others contribute to increasing awareness about the value of a culture of accessibility.

Accessibility Is an Issue for Lawyers and Clients—in All Practice Areas

Lawyers need familiarity with digital accessibility both for their own law firms and for the clients they represent. In every economic sector, organizations large and small have websites and mobile applications. Their employees need technology to do their jobs. If people with disabilities cannot interact with that content, your clients may be running afoul of the law (to say nothing of lost customers, lost talent).

At its core, accessibility is about people—disabled people who use technology.  As lawyers, we often think of people as “clients.”  Web designers might say “users.” Whether your clients call the people they interact with patients, employees, customers, tax payers, sports fans, investors, students, diners, homeowners, or simply members of the public.  If your clients serve these people, and countless others, digital accessibility should be on your radar as their lawyer.

And digital accessibility is not just about apps and websites. Digital devices of all sorts can be used by disabled people when designed with accessibility principles in mind.

Kiosks, for example, increasingly provide services in finance, retail, health, and government sectors.  Are the controls within reach for a wheelchair rider? Is there confidential audio output and tactile controls for blind users? Disability advocates are using the law to make sure digital services delivered through kiosks are available to everyone. Recent developments are discussed in Kiosk Accessibility: The Law is Paying Attention.

Don’t Buy Trouble; Buy Accessible

Lawyers write contracts; for themselves and their clients.  Whether purchasing law office technology, or advising clients on technology purchases, build accessibility into both requests for proposals and final contracts. Identify the accessibility you or your client expect, and specify how it will be tested, and how barriers will be remediated once the ink is dried. Treat accessibility as you would any other contract term: seriously and with consequences for a breach.

For more about building accessibility into technology contracts, see Technology Vendor Contracts and Accessibility: What Every Business Lawyer Should Know, published in Business Law Today.

Accessibility Is Privacy

As lawyers, we recognize the importance of privacy and security.  We counsel our clients to keep information secure and protect privacy rights.  We adhere to bar rules requiring confidentiality of client communications. Digital accessibility should be treated with the same focused attention.

Without accessibility, disabled people are deprived of privacy and security. If a healthcare website is not accessible, a blind person must ask for assistance in reading confidential medical information. A privacy breach or a potential HIPAA violation is on the horizon.

The confidentiality of financial information is compromised when a disabled person needs help to access a mobile application. Students’ school records lose their privacy when they are not independently accessible.

Whatever your area of practice, consider the privacy implications of failing to make digital content accessible to all users. Remember that people use technology in different ways. Lawyers would never advise clients (or your firm) to post content that has not been vetted for security purposes. Get the expertise you need to make sure such a breach (or a civil rights violation) is not inadvertently created with inaccessible content.

Accessibility as a Civil Right: Judges Are Weighing In

It is not an accident that I’ve placed the legal issues last on this five-part list.  Yes, accessibility is a civil right of disabled people under the Americans with Disabilities Act and other federal, state, and local statutes and regulations. But understanding the law is only one aspect of a successful accessibility program.

Too much focus on risk and legal obligations can hamper the creativity and advantages that accessibility offers organizations large and small.  (All the ingredients for a successful accessibility initiative were explored in a presentation I did with Microsoft at a recent accessibility conference titled “Staying Ahead of the Legal Curve: Bake Accessibility into your Organization.”)

Still, knowledge of the legal landscape is crucial for lawyers in all fields. One reason for this is the growing number of lawsuits challenging accessibility barriers on web sites. If metrics interest you, a good place to keep track of the numbers is the Seyfarth Shaw ADA News and Insights Blog.  Earlier this year the blog reported that “plaintiffs filed at least 814 federal lawsuits about allegedly inaccessible websites, including a number of putative class actions.” This number is up from 57 such suits in 2015.

So far there has been only one trial coming out of these cases—a  judge trial against the Winn-Dixie grocery chain resulting in a win for the plaintiff in June of last year. (The case, on appeal to the 11th Circuit, was recently stayed pending a bankruptcy filing.)

There have been many court orders on motions to dismiss, with the vast majority of rulings in favor of the plaintiff.  (You can read more about many of these orders both on the Seyfarth Shaw blog and on my website. See, for example:  Companies Are Losing Web Cases: Spend Money On Web Access, Not Lawyers and No ADA Web Accessibility Regs? No Excuses.)

Litigation, though, is not the only tool lawyers can use to ensure that disabled people have access to the digital world. I have been working in the digital accessibility legal space since 1995, and negotiated the country’s first web accessibility agreement (with Bank of America) in 2000. The agreement was negotiated using Structured Negotiation, a collaborative dispute resolution process that focuses on problem solving and relationship-building.  It has been an effective tool for resolving dozens of digital accessibility claims of the blind community for the past twenty years.

In an era of increased litigation in the digital space, conflict is not the only strategy. Structured negotiation is available to any party who wants to work on accessibility without becoming bogged down in legal procedures or runaway costs.

Accessibility doesn’t just happen. For lawyers it begins with an awareness that inaccessible technology excludes people from participation in all the digital world has to offer.  An understanding that accessibility barriers keep disabled people from services and information—our own and that of the organizations we represent. That a lack of accessibility contributes to the digital divide.

Technology can work for disabled people. Content can be designed for everyone’s benefit. As lawyers, let’s set an example for everyone: let’s make accessibility a core principle of our practices and do what it takes to make that principle a reality.

About Lainey Feingold

Lainey Feingold
Lainey Feingold is a disability rights lawyer focusing on digital access, an international speaker, and the author of Structured Negotiation, A Winning Alternative to Lawsuits. Lainey’s book is packed with win-win stories of legal advocacy with some of the largest organizations in the U.S., all without lawsuits.  In 2017 Lainey was named one of the 13 Legal Rebels by the ABA Journal, the national magazine of the American Bar Association.  That year she was also named the individual recipient of the John W. Cooley Lawyer as Problem Solver award, given annually by the Dispute Resolution Section of the ABA. Lainey has twice been recognized with a California Lawyer Attorney of the Year (CLAY) award (2000 and 2014) for her digital accessibility and Structured Negotiation legal work. More information at www.lflegal.com, follow Lainey on Twitter at www.twitter.com/lflegal, or connect on LinkedIn at https://www.linkedin.com/in/laineyfeingold/ The ABA offers Lainey’s book at a 20% discount when you use the code LFLEGAL20 on the ABA Publishing website.

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