An interview with Lainey Feingold

By April 23rd, 2013

As part of Knowbility's 2013 John Slatin AccessU, we are proud to present our first speaker interview with Lainey Feingold, a lawyer that focuses on accessibility. Our own Derek Featherstone speaks with her about her session at the upcoming AccessU conference.

Here’s the first instalment in our series of AccessU 2013 Speaker Interviews:

An Interview with Lainey Feingold

Feel free to download the podcast:

Transcript

This is the transcript of an interview recorded on April 17th, 2013 between Derek Featherstone, and Lainey Feingold, a lawyer specializing in accessibility law. It was recorded over Skype and posted as part of John Slatin AccessU 2013 podcast series.

Interview Summary

Derek: In this episode, we talk accessibility with Lainey Feingold — a lawyer that specializes in accessibility related cases. We’re running an entire series of podcast interviews with a number of great speakers for the John Slatin AccessU conference. We talk with Lainey about her work, about structured negotiations and some of the details of her talk at the conference. Coming up May 14th to 16th in Austin, Texas, presented by Knowbility, this is THE conference to go to for in-depth, hands-on, minds-on accessibility training. Check it all out at Knowbility.org. That’s k n o w b i l i t y dot org.


Let’s get to it.

[Intro Music]

Derek: This is Derek Featherstone with Simply Accessible and I have Lainey Feingold with me today. Lainey, how are you doing?

Lainey: I’m good. How are you?

Derek: I’m doing very well. Thanks. We all know that people are getting prepared for AccessU, coming up in May in Austin, Texas, run by Knowbility with lots of different partners, sponsors, and wonderful speakers. We wanted to take some time today to talk to you, as you’re one of those speakers; you’re a standby at AccessU.

You’ve been there and done that several times, and I know your talks are always really well received. I wanted to give the audience a little bit of a taste today of what they might get when they come to see you speak and talk about a few of the things that we see going on. The title of your talk is the Legal Update for 2013, correct?

Lainey: Yes.

Derek: What’s the high level overview of the session, for people that are listening and haven’t checked out the details on the site yet?

Lainey: I sort of see myself at AccessU (and also at CSUN) as sort of an ambassador from the legal world. Every year there’s more stuff going on legally with digital accessibility and I see my role as being able to put it in layperson’s terms and just let people know how the law is impacting this whole field of digital accessibility that we’re all so committed to.

Derek: That’s cool. I think that’s an important piece, because I know one of the questions that our clients always have is, “What legislations are there, what are the legal ramifications, what law even applies to the stuff that we’re doing?”

I know one of the things that we certainly feel, and we’re probably not the only ones that feel this, is that one of the responses that we often see when we see legal cases coming up in the news about web accessibility and one of the questions is always that the person that the defendant is usually trying to say in some way, shape, or form that that particular piece of legislation doesn’t apply to the web. My feeling is that they’re not saying, “we don’t want to be accessible,” they’re saying that the particular legislation that this action has been brought upon us using doesn’t actually apply to the web.

I think hearing things from a legal perspective is good. Is that accurate, is that a misconception, or can you maybe help us understand that a little bit better?

Lainey: Let me just give one piece of background about my work. I have been representing the blind community since 1996 on digital accessibility. I use a method we call structured negotiations. One of the reasons I like structured negotiations is basically it allows us to skip over the very issue that you’re talking about.

A good illustration of that is just what you were saying. The term for the person who sued is defendant. The idea of a court case is if you get sued you need to defend your practices. In structure negotiations if we have a claim against a company for an inaccessible website or mobile app, we want to approach it in such a way that the company will want to work collaboratively with me as a lawyer and our clients in the blind community rather than defend their practice.

The legal system is just rife with theories people can use to defend. “Oh, well there are no regulations yet from the Department of Justice,” or, “I am in California and not Boston, so a different law applies.” All those sorts of legal arguments are out there, but there are a lot of entities in the United States that are stepping up and doing the right thing, skipping over all those arguments available to them in litigation.

Derek: The way you describe it, it sounds like they’re choosing a path that is more collaborative than combative.

Lainey: Yes, that is the way I like to practice law. We say it takes two to tango. With our cases we offer the company, or whoever has the accessibility problem, the opportunity to work in collaboration. If the company doesn’t want to take it, there’s nothing we can do about it. That’s where you get into the litigation and the legal arguments, like “does the ADA apply,” or, “what’s the difference between bringing a case in Massachusetts and California.”

One of the problems in the field right now is that the Department of Justice has these pending regulations. I understand the company responses like, “We don’t know if these apply,” and, “It’s not final yet,” and, “What do we do?” In fact those regulations will be helpful, but the law already requires access for people with disabilities to services, programs, and information; and that’s really all the web is.

So I feel like the Justice Department is in some ways doing a disservice to the business community by delaying these regulations when in fact the requirements are already there.

Derek: Right. It sounds like that companies and other organizations are using it as a way of saying, “It’s still up in the air and therefore we’re going to wait until we’re actually told that we do have to comply.” Even though they already need to be accessible, they’re just using it as a means to potentially delay the inevitable it seems. That’s interesting.

Are there other differences in terms of structured negotiations versus litigation? Is it usually you attempt to go through structured negotiation and if that doesn’t work then the next step is litigation, or are there other key differences between them in terms of how they work from your perspective?

Lainey: The reason we came up with the name “structured negotiations,” which is not the most clever name, we’re trying to say that it’s a structure that’s an alternative to litigation. It’s not pre-litigation negotiations, which pretty much is standard now to try to resolve it. It’s an entirely different structure. Yes, if it fails then litigation is another structure.

I’m happy to say that since 1995 there has only been one company who said to us, “go jump in a lake, we don’t want to do structured negotiations.” In that case we did to go to an alternative system of litigation.

Derek: Did you actually go jump in a lake?

Lainey: We did not jump in a lake. We jumped into the court system.

Derek: That’s good then. I would hate for your team to go and jump in a lake just because somebody told you to, that just wouldn’t be right.

Lainey: So structured negotiations the end result is very similar. We have binding legal agreements, they’re enforceable in court, they require the company to meet a certain standard that we’ve agreed on. For the web cases we use WCAG 2.0 AA, there’s monitoring and there’s enforcement. The advantage of it is we skip all the fighting.

I think in the digital world that the only way we’re going to get accessibility into the DNA of a corporation is for them to have ownership of it. By being in negotiations and being collaborative it’s much more likely that the entity is going to come to see accessibility as just another business practice that they need and want to have, not something shoved down their throat by a third party, like a judge.

That’s why I particularly like it. I think it’s great for whatever kind of issue you’re dealing with, but particularly with web and mobile where things are changing so fast the law is really designed for a static resolution. Relationship is really important and litigation is not designed to foster relationship.

Derek: Right, it’s pretty much the opposite. It’s interesting because you mentioned a couple of things that I think are really close to what our team thinks of. We often talk about trying to help organizations create a scenario where accessibility becomes part of their culture and it’s something that just becomes part of what they do as a good business practice. I think that’s a key piece.

The other thing you mentioned, and I know Elle Waters on our team talks with a lot of businesses and clients and prospective clients, one of the key things that she is always trying to remind them is that accessibility is something you want to do on your terms and on your timeline rather than on somebody else’s.

I think that kind of fits with the way your approach is. It’s better to come up with a timeline and a structure and plan to move forward collaboratively than it is to have one forced upon you by the court systems. That sounds like a much more positive approach to it.

Lainey: Yes. We talked to advocates the same way. Yes, it sounds good that you go to court and you win, but you’re not always guaranteed to win if you go to court.

Derek: Right.

Lainey: What you just said reminds me of another difference between structured negotiations and litigation; the use of experts and the use of consultants. We really believe that it’s important for an entity to hire their own consultant that they feel good about. We recommend consultants and we have jointly agreed upon consultants, but in the typical litigation the plaintiffs have one set of experts and the defendants have another set of experts and they’re fighting with each other about the edges.

All consultants, as you know since you are consultants, all people have different styles. Some people’s style fits with one company versus the other. We think it’s really important that the companies have consultants that they feel good about and that work within their business environment, so that’s something that we try to pursue.

Derek: I think it’s much more of a team game, I think it needs to be that. I think one of our goals when we’re trying to work is that things don’t even ever need to get to a structured negotiation point, where all of this stuff is taken care of before it even gets that far. I think that’s probably an ideal world.

As things move forward, I can see that there are things that you take care of on your own because it’s the right thing to and you’re required to do it, and if we’re not doing that then we get to the structured negotiation stage, and if that doesn’t work or isn’t embraced then we end up seeing people face litigations. I think that kind of makes for a nice continuum there.

You mentioned that things are changing quickly in today’s internet, and you even mentioned mobile apps. I’m curious, are you seeing more clients and more people that are facing accessibility issues that they’re more interested in looking at some of these mobile apps versus the web, or is still a good mixture of both? Are you seeing any differences in numbers or anything like that?

Lainey: Certainly when we started. The first company that we worked with to make a commitment to web accessibility was Bank of America and they’ve been a great partner in structured negotiations. We signed our first agreement with them in 2000, I don’t even know if there were mobile apps in 2000. You guys might know that more than me.

Now that the iPhone is so accessible to people who are blind, there is an expectation that the content on the iPhone is going to be available to people who are blind. Android is getting more so. I don’t think it’s as widely by the disability community as Apple products, but I also think that is changing.

When we look at information accessibility we look across the spectrum, including print. In the cases that we work on, if there is print information – the American Cancer Society settlement that we did as a good example. We worked on that print information available to people in accessible formats; Braille, large print, audio, as well as the digital accessibility.

It’s all of a piece. Wherever information is being provided to the public, you need to think of the people in the public who can’t access it in the traditional format.

Derek: Right. I think that just makes good sense.

One of the other things that we’ve noticed, and this is just recently and I’m not sure if you saw these, there was a case brought forward against Marriott about the use of an internal system. Then there was a case within the U.S. federal government where there was a case of internal software where the internal software that was being used was coming from a third party and ultimately what ended up happening was people were not able to move up and to achieve a higher rank, status, or get a promotion within the organization because (I think in both cases) the people were actually blind and they couldn’t use the software that was going to be required to perform their job duties.

So we’re starting to look at that as well and we see more cases like that happening. Are those kinds of cases covered under the same legislation or is there different legislation that specifically applies to those internal systems where things are coming from a third party and the organization didn’t create it, they’re not in control of it, they just procured it?

Lainey: That’s a good question. As you said in the beginning, this is in preparation for the AccessU conference and I want people to know that I am in touch with the lawyers who are representing the blind worker on the Marriott case. It’s not me, but there are great attorneys handling that case. I’m going to have up to date information on what’s going on with Marriott and what the legal theories might be for that type of thing. I’m not going to share it right now.

Derek: Okay.

Lainey: I will say that there are lots of different laws that cover these kinds of things. In the federal government there is, of course, Section 508, which is the direct procurement statute. For federal employees there is absolutely a direct line to 508 to that kind of software.

Derek: For organizations that are purchasing software from a third party, it’s probably well within their rights now – and probably always has been – to start ensuring that they’re asking whether or not the software is accessible before they sign on the dotted line.

Lainey: Absolutely. It definitely should be part of all RFPs. The only legal question is, “What is the employer’s responsibility? What is the software provider’s responsibility? What does the contract between those two say? Who gets to enforce that contract?” Those are the kind of questions that come up in the employment setting.

Derek: Those are questions that I think I’m very happy that I don’t have to answer. I don’t think I would want to answer those, they sound like tough questions. We’ll leave that to the legal experts.

So you’ll talk about some of these things in your session. AccessU is May 14th through the 16th. Will you be there for the entire conference or just part of it?

Lainey: Somehow I’m scheduled at 8:00 in the morning in the breakfast session for the very first day, so I know I’ll be there at the beginning. I always learn so much there. A lot of the technical stuff is way over my head, but I’m a big believer that if you sit in the space something is going to get absorbed so I love to go and learn from the experts.

Derek: That’s good. Hopefully it works the other way, too. The way that you describe the technical stuff is kind of the way that I, and a lot of people, would feel about the legal stuff. Your ability to take those complicated concepts and break them down and make them something that’s digestible for people that aren’t legal subject matter experts, hopefully the way that you do that for everybody else, the other people that are speaking at AccessU will do for you and be able to explain those technical things in layperson’s terms as well.

So you’re 8:00 AM on the first day. That’s actually a good slot, because everybody will be eating and they won’t be in a food coma right after lunch and they’ll be energized because it’s the very first session. Certainly that’s an honor and I think that fits really well with the message that you have.

How about a quick question here. You’ve been Austin several times. What is your favorite thing to do in Austin? People are going to be coming here from out of town. What’s your favorite thing to do in Austin and what sort of things would you recommend people check out while they’re in town?

Lainey: I saw that you were going to ask me that question and I realized that this year I’m going to commit myself to seeing more of Austin, because my favorite thing about going is seeing my friends in this community. I don’t really get out too much. I don’t know if it’s in May, but I do want to see where they have a bridge where thousands of bats come flying out.

Derek: The bats, oh yes.

Lainey: I’m not much of a bat person, but I think from a safe distance it sounds like an amazing thing.

Derek: I think every year, and I’m almost sure that it happens nightly. I’m not from Austin, so I don’t really know, but I have been there a few times and I’ve walked several times down to that bridge to see those bats and I’ve seen five. I think I just missed it or I was at the wrong time. I’m sure there will be definitely be a group going, so that’s definitely something that you should check out at AccessU.

Lainey: They also have great food trucks. I did get to explore that a little bit.

Derek: Absolutely. That’s fantastic. Hopefully you and a number of other people will be able to check out those bats together, if you haven’t done that before. Of course, you’re around for the first session and you’ll be around for a little while.

People that are listening, if you’re heading to AccessU, it’s really a fantastic opportunity to learn from the experts in terms of the technical side of things, the policy side of things, the legal side of things, and any other aspect that you could possibly imagine. It’s one of the best, if not “the best,” accessibility specific conferences going. Definitely check it out and say hi to Lainey if you’re there and ask her some questions, and just be part of the conversation.

I think it will be a great time, I wish I was there. Have a fantastic time there, Lainey. Thank you so much for taking this time with us today.

Lainey: Thank you.

Derek: And, there we have it. You can catch Lainey, lots of other great speakers and the bats in Austin in May. Again, its AccessU. Get all the details at knowbility.org – that’s k n o w b i l i t y dot org.

[Outro Music]

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