I am often asked in my global travels, – “Why does the United States litigate so much? Why do you always sue each other?” Or I get comments that start like this: “You Americans..” That always make me smile and cringe because I figure the person is going to take a shot at my country. I am proud to be an American, but I also believe that the United States can learn a lot from other countries on many subjects, especially on Disability Inclusion, ICT Accessibility and Accessibility of the Built Environment. So why does the United States litigate so much?
Recently, an accessibility expert from Sweden asked me a question during #AXSChat, a tweet-chat held each Tuesday at 3pm on Twitter about #Disability Inclusion and Accessibility. She said, “Debra, do you think the United States would have made as much progress without litigation?” I have been asked that question many times in my travels.
I answered, “Unfortunately, I do not think we would have had the same progress. Our reality is that in the US we create legislation and then pound out our laws by litigating with each other. Then we refer to the legal cases to determine the best way to follow and strengthen our laws.”
“In the UK disability legislation has since 2010 been part of the broader Equality Act (EQA2010). Whilst there have been a few cases they have predominantly focused on services and employment the law places a duty on organizations and people not to discriminate and to be proactive in doing so.
Although I am not a fan of the sometimes parasitic model of litigation that we see outlined by Debra in the US, I do feel that accessibility in the UK could benefit from a test case much like some of the early class action cases in the US so that case law can help define and refine the understanding of Digital Accessibility and companies can meet what are currently poorly understood and often ignored legal obligations.”
Although the process took many years to achieve, I will never forget the brave leaders who fought for our rights for so long. Staging protests, rallying, speaking to the press, and organizing events all strongly affected the eventual passage of the ADA. One protest stands out to me. It became known as “the Capital Crawl”. Over 1,000 disability rights activists and protesters left their wheelchairs and mobility devices and crawled up the 83 steps of our Capital Building, simply asking for the same rights and equality any other American had.
These amazing leaders fought for the Civil Rights for Persons with Disabilities. As a result, the
American’s with Disabilities Act (ADA) was signed into law by President George Bush on July 26th, 1990. Our family applauded these leaders knowing that they were fighting for all of our rights, including those of our daughter, Sara Ruh who was born in 1987 with Down syndrome.
Would the United States have made as much progress without laws like the ADA or Rehabilitation Act of 1973, Section 508, 504 and 503? I do not believe we would have made the progress. I also believe that these leaders efforts encouraged other countries to fight and to continue to fight for their rights. Now we have the United Nations Convention for the Rights of Persons with Disabilities. (CRPD). I am hopeful the United States will ratify that convention in 2016.
Could we have made as much progress without these laws and litigation? I do not think we would have. Why? Organizations mean well, -but they have many competing interests. For clarification, -I use the word “organizations” as a placeholder for corporations, nonprofits, universities, local, state and federal agencies.
Most organizations create an annual strategic plan and update it throughout the year. The organization has to determine their strategic focus by considering many moving parts including changing laws, standards, industry changes, business climate, and risks.
Inclusion of individuals with disabilities has become more of a risk in the last few years. A few years ago a colleague mentioned a conversation with a General Counsel of a Fortune 100 firm. The General Counsel and Chief Compliance Officer noted that he had accessibility on his risk list for many years but it was way down on his list – maybe on the 15th page of things he was worried about. He noted that recently it has moved up to about page 3. Still not the top three things that kept him up at night, but it had moved up significantly on the things that were adding risk to the firm. What is keeping him up at night? These organizations have a lot of risk to worry about- such as privacy, security, globalization, branding, changing technology, and many other items.
For years, the United States has seen ADA complaints and lawsuits about disability discrimination and inaccessible websites. Most of this litigation is settled out of court. The most famous case was the complain against www.Target.com that turned into a class action lawsuit and was eventually settled out of court. It is interesting to note that www.Target.com is now one of the most accessible websites.
There is a troubling trend happening in the United States with a significant uptick in legal complaints and filings. Recently a law office sent a letter out to many major online retailers threatening them with lawsuits because their websites were not compliant or accessible. The letter told the retailers not to reach out to accessibility consultants. Instead, they were told to contact the law office and they would arrange to get them accessibility help with their websites.
Most of these attorneys are conscientious and want to assure that the websites are accessible to individuals with disabilities. However, a growing group of lawyers seems to realize that they can make a lot of money filing complaints against businesses and universities. Why? Well, most websites are still inaccessible to persons with disabilities. They understand that inaccessible websites can be a gold mine if lawsuits are won or settled on the behalf of the plaintiff.
Some lawyers actually do not care if the website is ever made accessible. They work with clients with disabilities and go to different websites and see if they are accessible. If they are not accessible, the lawyer files a case and hires an accessibility subject matter expert to validate that the site is not accessible. Then the organization being litigated against agree to pay a settlement. The attorney takes the lion share and then pays out the plaintiff. Those law firms keep accessibility experts on retainers and some are getting a large lump sum for each case. Generally, these cases do not go to trial. The problem is that the websites are not made accessible so individuals with disabilities lose.
This also happens with ADA complaints against small businesses because the business was not physically accessible. I understand the ADA is over 25 years old and it is past time that the Built Environment and Internet, Communications and Technology should be accessible. My complaint is directed to lawyers who make money via litigation but there are no expectations of access.
Universities are also being targeted because of inaccessible websites, student portals, eLearning and other accessibility issues with their ICT. Individuals with disabilities are attending and graduating from universities in record numbers in the United States. It is critical that all students have full access to every aspect of the educational process.
“It’s true that U.S. higher education institutions face liability for inaccessible web content and technologies much like they did in the 1990s with inaccessible buildings. In fact, at last count, we’ve had over 27 higher education accessibility lawsuits, complaints, and settlements in recent times. However, there is very limited advocacy coming from people with disabilities compared to the ‘Capital Crawl’ movement. The driving force for change has been the National Federation of the Blind and the U.S. Department of Labor and their federal agency counterparts.
What can Universities do to protect themselves from legal complaints while still meeting the needs of the students with disabilities? The first and primary step is to develop and implement an information and communication technology (ICT) accessibility institutional policy and procedure.
There are several resources and good examples to draw upon. One helpful resource is the summary web page that has been published by The University of Washington. What we’ve seen is that ensuring compliance, securing the resources and maintaining procedures as technology shifts are usually the primary challenges institutions face.” -Dr. Christopher Lee, Department Head of AMAC Accessibility Solutions and Research Center
Some lawyers are adding a lot of value to these conversations. One of the best recognized attorneys in my opinion is Lainey Feingold. Lainey has become a champion to many in the community of persons with disabilities.
I visited her website, and gathered this information.
Lainey Feingold is a disability rights lawyer who works primarily with the blind and visually impaired community on technology and information access issues. She is nationally recognized for negotiating landmark accessibility agreements and for pioneering the collaborative advocacy and dispute resolution method known as Structured Negotiations.
Structured Negotiation is a collaborative and solution-driven dispute resolution method conducted without litigation. The goal is to help the organization become accessible so that the community of persons with disabilities and many other parts of the population, including aging citizens and non-native speakers, can have access to the content of your website with no ulterior motive.
Structured Negotiation appears to be a win win for everyone because the goal is to reduce the digital divide and provide access to everyone.
What do you think? Are we moving equal rights to technology, employment, transportation, housing and other parts of society forward by litigating in the US?
Join Neil Milliken, Antonio Santos and me on our weekly Twitter Chat. Just search the hashtag #AXSChat at 3pmEST and join the conversation. We chat about disability inclusion, empowerment, employability and accessibility.
#AXSChat – “Inclusion Matters”