E33 – Interview with Lainey Feingold – Part 1

Lainey is a disability rights lawyer who has been helping blind people and organizations for the best part of 20 years. She stresses that the right to an accessible website is a civil right. She talks about Structured Negotiations and how it’s a better path to accessibility than lawsuits.


Nic: Welcome to the access ability rules podcast. You’re listening to episode 33. This episode has been sponsored by patrons like you. I really do appreciate your support. If you’re not a patron yet, and you want to support the show, please visit patreon.com/steenhout. So I’m Nic Steenhout, and I talk with people involved in one way or another with web accessibility. This week I’m speaking with Lainey Feingold. Hi Lainey. Thanks for joining me on this conversation.

Lainey: Thanks for having me, Nic.

Nic: I like to let guests introduce themselves, so in a brief elevator pitch style introduction, who’s Lainey Feingold?

Lainey: I am a disability rights lawyer. I have represented blind people and organizations for the past 20 plus years on web accessibility issues, information, technology, things like that. And I’m also an author. I wrote a book called Structured Negotiation, a Winning Alternative to Lawsuits. And it’s about the way my clients and I have worked on those issues for the last 20 years, which is in collaboration instead of lawsuits. So I’m a disability rights lawyer, I’m an author, I do a lot of public speaking and writing about web accessibility. And I’m a champion of collaboration over conflict and runaway costs.

Nic: That’s fantastic. I think I’d like to explore that in a little bit. But first, tell me one thing that most people would not know about you.

Lainey: Well, let’s see. Well one thing is I tried to be a national, even sometimes an international person. So I don’t have my address on my email. So some people don’t know I live in Berkeley, California. And I’ve lived here for over four years. And other people might not know that I work out of my house in Berkeley, California. So I’m talking to you from my upstairs office with a view of the Golden Gate bridge.

Nic: Oh that’s a fantastic view. I’ll have to pin you next time I’m in Berkeley. That would be good to meet. Although I think you’re going to CSUN this year, aren’t you?

Lainey: I’m going to CSUN, yes I am.

Nic: So I guess we’ll get to meet there.

Lainey: Yes, I think it’ll be my 18th year going to CSUN. I was trying to … Either 17 or 18, I’m pretty sure 18.

Nic: Wow. It’s my first CSUN ever. So it’s going to be an experience I think.

Lainey: Excellent.

Nic: As I speak with different people about web accessibility, I’ve come to realize that there’s a lot of different definitions about what web accessibility is. I think your perspective as an attorney that works in this field would be interesting. So how would you define web accessibility?

Lainey: Yeah that’s a good question, and I try to do a lot of writing for people who aren’t familiar with our issues. And I always struggle with how to start with that very question, what is web accessibility? So I usually say that web accessibility is about the ability of everyone including disabled people to interact with content on the web. And by interact, I mean find the content, read the content, do what it is to be done with content, fill out forms, or people talk a lot about captioning and audio description for movies, but I find that a lot of times if a site isn’t coded well, you can’t even find the player. You can’t even turn on the sound.

Nic: Yeah.

Lainey: You can’t rewind . So web accessibility is about interaction and being able to read and interact with content on the web. I also like to use the term digital accessibility now because we’re trying to get government agencies and big companies to realize that it’s great to have a web accessibility program, but it’s not enough because digital is beyond web.

Nic: Yeah I think there’s a great increase in kiosks, and that I just heard a couple days ago about provision of E-health, well of health services through kiosks. And I think that if people focus only on the web, these kind of things are going to become problematic.

Lainey: Yes, I just wrote a piece about that. I don’t know if you saw it. I have a website, it’s Lflegal.com. “F” like Frank, my initials, Lflegal.com. And I try to share news about what’s going on in the legal space in a way that people can use it when they’re not lawyers. So I really felt there was a need to put together all the cases and some of the regulations that are happening around kiosks. So I just put that out this week and for example, there’s a case of the national federation, the blind did on healthcare kiosks in retail stores. The kind of things that measure … You can measure your weight and get your eyes checked, those sort of … There’s more and more self-service. There’s more and more information and services being offered through self-service. Government, retail, restaurant payment systems, finance.

So all of those things come under the big umbrella of digital accessibility.

Nic: Yeah, yeah. How did you become aware of the importance of web accessibility? Because most lawyers, it’s not a field of expertise they know. Some lawyers I’ve worked with actually no one understands web accessibility in general or the Americans with disabilities act obviously but web accessibility is really quite a specialized focus. How did you get into that?

Lainey: Like most things in life, Nic, I just sort of fell into it. I got very lucky in that in the mid 1990’s, I was working at a disability rights nonprofit, called DREDF, the disability rights education fund

Nic: Oh yeah? I didn’t know you were with DREDF.

Lainey: Yeah. I ended up there … I tell a little story in the book how I just randomly ended up working at DREDF. And during that time, a blind lawyer called a friend, and I knew that friend. And the call was about talking ATMs. And the blind lawyer said, “There’s not a single ATM in the United States that I can use.” The Americans Disabilities Act was about five years old and he thought, maybe this new law can be used to make ATMs accessible. So we got together, DREDF and these private lawyers and the client and a group of blind people in California, and we wrote letters to Bank America, Wells Fargo and Citibank. And we said, “You’re violating the ADA by not having a single ATM a blind person can use. But rather than sue you we’d like to sit down and really talk through what the best solution would be.”

So that’s how Structured Negotiation started. And we had amazing negotiation and conversation with all those banks. And people, we were in the ATM labs and blind people gave input on the early ATMs that talk. And towards the end of that effort, when the ATMs were … We had them, we’re going to have talking ATMs, first ones in the United States. Although, I will say that Canada had talking ATMs before anybody in the world. But anyways, we were making great progress and all of a sudden one of our blind clients came to us and said, “You know, Lainey, great job with the talking ATMs, but there’s this new thing called online banking. And if we don’t make that accessible, we’re going to be back to square one with financial independence.”

So that was in the late 90’s, ’98, ’99. And we went to Bank America and we had been talking to them about the ATMs and we said, “There’s another issue we really need to address.” And because we weren’t in a lawsuit … In Structured Negotiation I tell this story in my book. The bank said yes, it wasn’t a big fight. There wasn’t a got to a judge and decide whether they have these websites. It was just something that they saw they should do because they understood the need for independent access. So in 2000 Bank America signed the very first agreement in the United States with its blind customers, agreeing that their online banking platform would be accessible.

So that was 2000, and that’s how I started.

Nic: Wow, that’s fantastic. It reminds me a little bit of how I got involved with the independent living movement. Where I was living in the states waiting for my working permit. So I started volunteering at a center for independent living, which was right on the same block I was living in. And soon as I got my green card they said, “Oh, and by the way, we have a job for you.” And I got sucked into this wonderful world of disability rights at the time.

Lainey: Yeah, I think that’s how it happens. How it often happens.

Nic: Yeah. I’m interested that you’re talking about your work with Bank of America because one of the stories I use in some of my presentation is … And you may have heard about that, it goes back a few years. But there was a double arm amputee that tried to cash a check that his wife had written. And they were insisting he give a thumb print to be able to verify his identity. And he kept saying, “Well it would be a bit difficult to do that, given that I don’t have arms.” And that illustrates a question of policies I think, which obviously has been rectified since then.

Lainey: Yeah I’m not familiar with that story, but I do know that Bank America has long been the champion in accessibility. Like I said, they were the first ones to do digital access. In large companies, they have thousands and thousands of employees. And sometimes things happen that the company doesn’t like, the policy makers don’t like, the supervisors don’t like, but they still happen. So that’s one of the reasons I’m very big on really trying to bake in accessibility and disability awareness into companies. And not just sort of band aid approaches, so let’s avoid a lawsuit. Because things are going to keep coming up.

And if you don’t have the culture, you’re going to keep running into problems. If you have the culture of accessibility, then when you run into a problem you can get it fixed quickly.

Nic: Yeah I work a lot with building an accessibility mindset in this culture of inclusion with companies, I think it’s important. When we talk specifically about the nitty gritty of making a website accessible, I think we talk … More and more we hear people talking about it’s got to be done from all parts of the project from design to development to QA. But it goes further than that. It really has to be … The whole company has to buy in.

Lainey: Yeah, I just read the book by the CEO of Microsoft. I don’t know if you’ve read that, it’s called Hit Refresh. I really recommend it because it’s not just about their commitment to accessibility. It’s about sort of the whole company and where it’s going. But it’s all about starting at the top and creating the culture. And he has two disabled children, well they’re young adults now, but his kids. Two of them are disabled. And that really, when you read the book, one of the takeaways is wow, that really made a difference in how he sees where that company needs to go.

So yeah, it’s really, culture is everything.

Nic: I haven’t read the book yet, but I’ll make a note to grab it and read it on my next flight. So obviously you’re much more in favor of negotiating than suing. What would you recommend to people that want to start negotiating rather than starting suing? Joe Q ┬áPublic with the disability that has a problem with a website, what steps should they take to actually successfully getting to a solution?

Lainey: One of the things I feel is very important for nay site owner to do is to have an accessibility information page that’s easily findable on the website. And one of the key components, it doesn’t have to be a big, long complex thing, but it’s got to have a phone number and an email where the public can contact someone who will be responsive when there is a problem.

Nic: Yeah.

Lainey: So ideally the first thing that Joe or Jane public can do is make a call or send an email. And I can’t tell you Nic, how many of my cases, how many of the lawsuits start because when the public calls, there’s no there, there at the other end.

Nic: Yeah.

Lainey: And people get frustrated. I always say, disabled people, blind people that I know, they don’t want to do lawsuits, they just want to be able to interact with web content.

Nic: Yeah.

Lainey: But it’s so frustrating to call a number and be told, “Well can’t somebody help you with that?” Or the person on the other end just has no clue that people interact with sites in different ways. Don’t use a mouse, or don’t see a screen. So ideally, it can be … Even though accessibility’s a civil right, it can also be handled as a customer service complaint and resolve right then and there.

Nic: Yeah.

Lainey: Unfortunately too often that doesn’t happen. And basically my book is a step by step guide to how to do structured negotiation, and a lot of it … Not a lot of it, it starts with deciding you really want to try to resolve a problem in a collaborative way. So communication has to be made in that sense. So structured negotiation starts with a letter to the company. The process has been designed as a tool for lawyers and clients to do together. But you can write a letter before you hire a lawyer. Ideally it’s best to resolve things without a lawyer if you can because a lawyer ends up costing more money, the company and it ends up in the lawyer’s hands instead of in the hands of the developer where it should be. Or the customer service or the training.

But if you do need to have a lawyer, it’s all about to me a big part starting to trying to communicate in a way that explains what the problem is. Explains why it’s a problem. Explains who you are. In our letters, it’s not just plaintiff, but identify. I’m a person, I’m a customer, I’m a customer of your bank or your restaurant, or your health insurance company for 10 years and I can’t go online and find out the status of my claims, something like that. So a lot of it is about communication. And a lot of the negotiations have been successful because there’ve been companies on the other side who’ve said, “Yeah, we want to do it in this way.”

A lot of times the lawyers for the plaintiffs get criticized for filing too many lawsuits or whatever. But the truth is, companies have a choice in how they want to respond to a claim. And it doesn’t have to be fought. I like to have the slogan of saying, “Spend money on access, not lawyers.”

Nic: Yeah, that’s good. There’s been I think especially in the last couple years there’s been a whole bunch of lawsuits being filed. And I’ve seen some criticism that it feels like it’s almost like ambulance tracing, yet it seems like it’s yielding some results. How do you feel about all these dozens, literally dozens of cases that are being pushed forward and threatening lawsuits? Obviously we want negotiation, but yeah … I’m not sure how to phrase my question exactly. But I guess bottom line is, I’d be interested to get your perspective as an attorney that really focuses on negotiation rather than lawsuit to all these threatening letters and so on that have popped up in the last couple years.

Lainey: Yeah, well that’s a good question and people always ask me it. And I struggle with the answer just like you were struggling with the question. And I think in part that’s because the truth is, there’s so much more attention on web accessibility because of this increased strategy that some people are taking lawsuits. So that’s frustrating to me because as I just mentioned, we did our first web accessibility case in 2000, and I’ve done many, many of them. Most of which got no attention in the mainstream media. Most of which didn’t get all these defense lawyers doing webinars and seminars and there’s a lot of attention in the space right now.

So attention is good. On the other hand, I don’t like fear as a motivator. And I don’t like seeing the issue of accessibility solely through the lens of a legal violation. I feel very strongly that the right to an accessible website is a civil right. The right to information, I feel very strongly that the Americans with Disabilities Act requires websites to be accessible because without it people are locked out. That’s just … This is 2018. It’s not 2000 when online banking was just starting. Things online. So I feel very strongly about the legal foundation and the legal rights. But I don’t like everything being seen through the lens of fear because law tends to be a backward looking thing.

And accessibility should be seen as just something people want to do because your website’s going to be better. More people are going to be included. The other thing is that it’s really important not to lump together all lawsuits because lawsuits have been very effective for years in laying down the foundation for accessibility in the United States. Along with the structured negotiation, but some of the important foundational cases like the Netflix lawsuit that established that the streaming online site had to have captions. Or some of the lawsuits that had been done against higher education institutions. Most of which settled, but still, they were lawsuits that really got universities to start paying attention to the whole scope of the digital content and information they’re giving their students.

There’s just been a lot of really important lawsuits. So it doesn’t lend itself to a sound bite, which is why I’m glad you have a half an hour here because people say to me lawsuits good and lawsuits bad doesn’t lend itself to that. If someone is filing three lawsuits in one industry and one state in one week, I got to wonder.

Nic: Yeah.

Lainey: Is this real or is this for the wrong reasons? But lawsuits in general as a tool for enforcing civil rights are very, very important.

Nic: One of the things that I remember from my work in the independent living community was that a lot of things were happening with case law that was really driving the understanding of what should or shouldn’t be done. And some of these cases, I’m thinking in particular about airline pilots that needed glasses tried to claim that as a reasonable accommodation and didn’t work. And it caused a lot of issues for other people with disabilities in terms of medication factors. So how has decisions or case laws influenced the perception in the field of web accessibility?

Lainey: Well first of all, cases like I said are important and they’re laying down a foundation. I think there have been … Like one of the earliest cases was against Target. And that got a lot of attention. That was in 2008 and we had by then already worked with most of the major banks on web accessibility and the financial industry has always been out in front as early adopters on accessibility. But having that Target case really again, the mainstream media wants to cover conflict. So when there’s a lawsuit, it’s going to get more coverage. The Target case was important because it was the first time a court had said a website is something that has to be available to people.

The complication there was this question that’s in the law in the United States, well can any, does any website have to be accessible, or only if it’s connected to a physical place? They call a nexus between a brick and mortar. So in the Target case, the judge said, “Well people can go to the website to see what’s in the stores.” And there was a lot of connection. They can make a shopping list or they can look up locations. So that started the courts down this path of saying, “Well there has to be a connection.” And other courts say there doesn’t have to be a connection.

So in the Netflix case like I mentioned, that’s streaming only. That’s online only.

Nic: Yeah.

Lainey: There was another important case against Scribed, which is like a Netflix of books where the judge said, “Yeah, this has to be accessible even though there is no brick and mortar.” So these are the kinds of issues that the law brings up. It’s not really about making your website accessible. It’s kind of like an overlay of legal ideas. So the other thing I want to say about that is I do feel that legal precedent is important. And I really believe in what I like to call industry precedent. And I think companies, no one really likes to go first. But when one big company, like when Bank of America says, “We’re going to have an accessible website. And if you want to sell third party tools or content to us you have to be accessible.”

That creates precedent in the banking industry.

Nic: Right.

Lainey: When we work with major league baseball on their website, main website plus the team websites, that created industry president in the sports world. I’m not saying everything is perfectly accessible. I’m just saying the law creates one kind of precedent, but I think industries and there’s champions … We know many of them and many different fields creating precedent for web accessibility.

Nic: I really like that concept of industry precedence. One company getting their toes wet and then other people following and jumping in. I think that’s an important concept that I had never considered. So thank you for that. I think on that note we’re going to wrap it up for this week. Lainey, thank you so much for all that. It’s super informative and important stuff. And we’ll finish our chat next week.

Lainey: Okay, thanks for having me. I appreciate it.

Nic: Thanks. But before I go, I want to thank my patrons once again. And remember that if you need a hand in ensuring your site’s accessibility, I’m available. Contact me on my website at incl.ca.