Making Better Episode
(music) Welcome to the Making Better Podcast, interviewing some of the world’s finest thinkers about a more optimistic future. Now, here are your hosts, Chris Hofstader and Dr. Francis DiDonato.
Chris: Hi, I’m Chris Hofstader
Francis: Hey, I’m Francis DiDonato
Chris: And this is Episode 19 of Making Better Podcast, featuring disability rights attorney Lainey Feingold!
Francis: And when thinking in terms of change, how to actually make that happen in this world, I don’t think anybody is better situated to make that happen than lawyers. I think we really, really need lawyers. We need the ACLU, we need people like our guest right now, because compared to the difference that marching in the street does, I think litigation, personally, does a lot more.
Chris: I’ve known Lainey for some time now, and have the greatest amount of respect for her. She’s one of the few people out there I admire entirely, and if you’re interested in digital accessibility, she can tell you the entire history, because she’s been there from the beginning.
Francis: Don’t get me wrong, I love a good lawyer joke—but I really think that the lawyers who are making a difference in our country right now and around the world are true heroes.
Chris: And with that, let’s get on with the episode!
Chris: Lainey Feingold, welcome to Making Better!
Lainey: Thanks for having me, glad to be here.
Francis: This is Francis DiDonato, and yes, welcome to our show.
Chris: You’re one of the top ADA attorneys, or at least in my opinion you’re the top ADA attorney. Can you tell us a bit of your background, and the journey that brought you from childhood to where you are now?
Lainey: Yes, but let me start just by saying that, you know my focus on the ADA, the Americans with Disabilities Act, is digital accessibility only, so I just want to give a shout-out to so many lawyers, civil rights lawyers around the country who do ADA law in very many different sectors: the built environment, people with mental health issues, prisoners with disabilities, there’s so many ADA lawyers, so yes, this is my space and I’m so happy to be in it, but I have to say that to start.
I fell into doing disability rights work and digital accessibility work, kind of like the way life happens—serendipitously. I got out of law school in 1981, I wanted to be a union-side labor lawyer—that’s what my focus was during law school, we had a group called the women’s labor project. We weren’t the first generation of women to be representing labor unions, but I would say maybe first-and-a-half. It was a very male space at the time. I did that, and then I transitioned to traditional civil rights, and then I unexpectedly [aired?] from a job, and I was like, uh-oh, now what? And much to the greatness of how my career turned out, there was a temporary opening at the Disability Rights Education and Defense Fund, DREDF in Berkeley, which is a national leading disability rights nonprofit, and I took a job there, was supposed to be four months, turned into four years. While I was there, the issues came into the office about blind people not being able to use ATMs, and that’s basically how my career in this space started.
Chris: So in the digital accessibility space, there’s more than one approach to a lawsuit. You wrote a book call Structured Negotiations, and you can speak to that—which I think is the proper approach—but there are what I consider to be highly unethical attorneys, like Carlson Lynch and some of the other firms out there, who really do “shoot first, ask questions later”
Lainey: So you’re wondering what I think of that? Yeah, I’ve written on the ethics of the space. There is one category that I think is left out of your question, it’s collaboration, which I have been lucky enough to do as a lawyer because the blind individuals and organizations who have let me be their lawyer are collaborative people. You know, I did write the book called Structured Negotiation: A Winning Alternative to Lawsuits, and it tells the story of the work we’ve done over the last 25 years in digital accessibility with collaboration. Because I’m a lawyer, because I wrote the book, I tend to get the focus; but the truth is, if it weren’t for the people, if it weren’t for the people with disabilities who faced the barriers wanting to solve things with collaboration, the whole collaborative effort never would have started. And yes, in the past several years there have been lawyers come into the space who I don’t think have a goal of true inclusion and accessibility; but there’s also a third way, which are civil rights lawsuits for the right reasons, brought by ethical and highly-skilled disability rights lawyers. Those lawsuits have been very important to shaping the digital accessibility space. So, it’s not just, oh, there’s collaboration on one side, unethical lawsuits on the other—there’s also very highly ethical lawsuits.
Chris: My biggest disappointment with the Obama administration was that they never published the rules to the ADA Restoration Act, or to the 21st Century Communications and Video Accessibility Act. I mean, they had eight years to do the first of those, and six years to do the second; how does that affect your work as an attorney on these cases, when the federal government never actually published rules to associate with the laws they had passed?
Lainey: Yeah, the question of rules—not speaking to any specific law, but my biggest familiarity is with the lack of rules around web accessibility that the Obama administration—I thought they were going to pass them, there was testimony, we had hearings, we wrote, spilled a lot of ink or pixels or whatever you say now, on the whole issue of what would the regs look like if there were regs about web accessibility. They never came out—I think it made it harder, it makes it harder for lawyers, but I just want to say, I think it makes it harder for champions and advocates inside organizations, in companies, in government agencies, because a lot of big institutions, they like something to point to. They like to be able to say, OK, we’ll do this because it’s written here, and I think it would be easier for people inside to be able to say, oh here we have these regs, we have to do it. On the other hand, the Americans with Disabilities Act, which is going to be 30 this July, having it’s 30th anniversary, since the beginning it has called for the inclusion of disabled people by having very strong nondiscrimination provisions and very strong provisions about what they call effective communication, and that’s really what digital accessibility is about. Without accessibility, disabled people are excluded, and so that’s why, in my presentations I often say, the web regulations are dead.
Chris: The Supreme Court recently refused to hear the appeal in the Domino’s Pizza case, and Domino’s Pizza was using the lack of rules as their defense. Do you think that trend is going to continue?
Lainey: I think that was a trend, and the Supreme Court’s refusal to take that case, I think, pretty much put an end to that argument, because what Domino’s was about was that the Ninth Circuit—the Federal Courts in the US are divided into eleven parts of the country, and those are called circuits, and one in California, where this case was, was part of the Ninth Circuit. In the Domino’s case, the Ninth Circuit said, yeah, this case can go forward even though there aren’t regulations. And the Supreme Court could have said, hey, we want to rethink this, but they didn’t. So, I think we’re going to see less of that argument going forward.
Chris: With these laws like the ADA Restoration Act and CVAA, passed overwhelmingly in the United States Senate, with 98, 99 votes with a couple of absences, so therefore they seem to have bipartisan support, but we don’t seem to be getting any support from the current administration.
Lainey: I think there’s no such thing, really, as “bipartisan support” any more, to tell you the truth. It’s one thing to pass a law, it’s another thing to get into the nitty gritty of it, but I think that ADA is strong enough, and we can see by this rise of lawsuits, to support digital accessibility, and the biggest threat is probably the judges that the President put forward and the Republicans approve in the Senate, that is a big threat to the judiciary and the kinds of rulings we could get down the road as these issues percolate up through the court system.
Francis: I’ve thought for many years now that we don’t have a robust journalism in this country any more, that holds our leaders to task, nor the fact-checkers or the people who give people a sense of what’s going on in the world. And I’m wondering if lawyers are filling that void through lawsuits right now.
Lainey: The void by the media?
Francis: Not insisting on accountability. It’s an issue of accountability that is kind of missing right now, with a media that doesn’t really cover the things that are going on that are illegal, or just wrong.
Lainey: I really don’t know how to answer that. The media has been covering the lawsuits, but basically what happened—this March, which is in two weeks, will be the 20th anniversary of the first web accessibility agreement in the United States. And that was an agreement that we negotiated in structured negotiation with Bank of America, and Bank of America has long been a champion in this space. And by “champion,” when I say champion about any company, I don’t mean they’re 100% perfect, I mean they have a structure in place, they recognize digital accessibility, and when something goes wrong, they can get it fixed. So that was 2000, that was 20 years ago, and that same year that we did that settlement, there had been a lawsuit that was filed—I forget if it was eBay or AOL, I believe it was AOL—for over 20 years, the law has been used to advance digital accessibility. The media was not very interested until we started seeing two things: one is the onslaught of lawsuits, but two, when there is a big lawsuit, like the Target case which was one of the first big lawsuits on web accessibility, that was 2008. And by that time, structured negotiation and collaboration had really worked with a lot of companies to improve accessibility, but when I do talks, I say, does anyone know that Bank of America is a champion and signed the first agreement in 2000? Well, no one knew that, but everybody knew that in 2008, there was a lawsuit against Target. So the media has played a role, and it’s good to have the attention on those lawsuits. The problem we have now—there’s attention, but is it the right kind of attention? And that’s something that I struggle with, this onslaught of lawsuits is bringing attention to the issue, which is good, however I believe it’s creating an atmosphere of fear and looking at accessibility through the lens of risk rather than inclusion, which I think is dangerous.
Chris: You ran into that with Anderson Cooper, when he interviewed you for 60 Minutes?
Lainey: Yes I did. We had an interview with Anderson Cooper before the election. It was for 60 Minutes and my colleague, Linda Dardarian and I, who had been my partner in so much of this work over the years, along with our clients and—he interviewed us, and he seemed so into collaboration. We talked to him about talking prescription labels that allow blind people to safely take medication, we talked about our work with Major League Baseball and how, as soon as Major League Baseball met the blind baseball fans, they were all gung-ho to do accessibility. They had really fancy film people who came back to Linda’s office and spent literally three hours filming the talking prescription label from Scriptalk, and then they didn’t run it. They chose to run a hit piece on the ADA, and it was very distressing. And I think when we come up to the 30th anniversary, the disability community—there’ll be a lot of positive articles, but I think there’s going to be a lot of blowback because of misuse by a very small handful of lawyers, but nonetheless a handful that gets attention.
Chris: I had written four articles of my blog, that can be found at Hofstader.com, I describe as “ADA Trolling.” I got an awful lot of blowback on those articles, one lawsuit threat from somebody I actually named in the articles—it was just a threat, I wasn’t actually sued—and I got a lot of blind people who were raging at me for saying why take a moderate approach, we should be more aggressive, which to my mind says if you’re going after every small business, the first people they’re going to call are their Congressmen or the Chamber of Commerce, and they’re going to try to get ADA weakened.
Lainey: I think there’s room for a lot of strategies. And you know, one of the things that I talk about in my trainings—well, first of all, I always do what I did at the top of this show, which was to remind people how important lawsuits—I mean, look at the wonderful work that ADAPT does with direct action—many, many strategies that contribute to the forward arc of history—is long, but it bends toward justice. But I just think we have to be careful, because there is a reality of how people look at lawsuits, and I think they just have to be done carefully. All I can say is that collaboration has worked, other strategies have worked too. I would not tell someone, oh you must do a collaborative, structured negotiation approach, because it’s not the right approach in every situation, and it may not fit the personalities involved in the activism. So I think it’s really important to keep the broad view, but when collaboration works, it can be very powerful. I think there is a feeling that if you’re not fighting, you’re not trying hard enough, and if you’re too nice, you’re not loyal to your causes—and that just hasn’t been my experience. So, you know, that’s really all I can say. But I really don’t want to be the poster child for, oh, not trying to be very careful, oh, Lainey Feingold doesn’t do lawsuits and therefore she and her clients have gotten these results, and therefore a more aggressive strategy isn’t good; because no, sometimes the more aggressive strategy is good. The proof is in the pudding, like what are the results? One of the things I don’t like about what’s happening in the legal space now is that most of the small handful of lawyers, everything they do is settled confidentially, big press release at the top of it, you know, we’re having this multi-million dollar lawsuit—then you find out it’s settled, you have no idea what for and where’s the accountability? Where’s the transparency? What can the community expect from this particular website or technology?
Chris: In some of the very early web accessibility related cases, NFB v. Amazon and NFB v. AOL, the consent decrees at the end of the day did not require accessibility. Amazon has taken up the accessibility cause since, and I think Peter Corn is doing a great job there, but Amazon’s website is still nowhere near compliant with the guidelines…
Lainey: I don’t want to speak to particular results of particular lawsuits, but I do want to say that National Federation of the Blind has done an amazing job on digital accessibility both in lawsuits and a lot of behind the scenes things that we don’t see, where their lawyers who are fantastic, top-shelf digital accessibility civil rights lawyers, the firm Brown, Goldstein and Levy, and the partnership between NFB and Brown, Goldstein and Levy, has saved a lot of cases from going in the wrong direction. I’m not talking about cases they file, which are important—I mean, they’re doing very important cases right now on voting accessibility, they’re doing one of my favorite cases (I don’t want to say favorite, but), an important case on self-check (there was a lawsuit filed against WalMart because their self-check devices weren’t accessible, and instead of helping the customer, the staff person stole money from the customer). So in this era, we need all hands on deck, and honestly the NFB has, is doing currently some very important work in this space, and helping out in cases in a backseat way that’s very, very important to many of the successful outcomes that we see.
Chris: Changing gears to something broader, is disability is somewhat unique among other minorities. I like to say that first, we are the only minority you can join in an instant, and second, we’re the only minority that you will join if you live long enough. How does the uniqueness of disability fit into civil rights in general? We’re the only minority who’s discriminated against by every other minority.
Lainey: Yeah. Well, one thing I don’t believe—what do they call it, the oppression olympics—I don’t like comparing one type of exclusion or discrimination as different, or bigger, or more important or more troubling. So, I just want to say that—one of the things we say in digital accessibility is, if only people would design for their future selves. And that goes to your point that anyone can join in an instant, and if we’re lucky enough we’ll all join, because we’ll get to live to an old age where our eyesight will fail, our mobility will weaken, our hearing will weaken. So yeah, it creates the opportunity, especially in digital, to do just what I said—design for their future selves. But I think we also, in disability rights, face a fear that people have with the association of being sick or being disabled, with being dead. And you know, the disability community, there’s so many great writers right now writing about disability as point of pride and being disabled as an identity, and I always encourage companies I work with to try and tune in to the disability community and meet people, to just shift that attitude away from I don’t want to deal with it. So yeah, I think it raises opportunities and challenges. We can all become part of the community at any time.
Chris: Lainey, can you speak to your book, Structured Negotiations?
Lainey: Yeah, thank you for asking. Structured Negotiation came about in the mid-1990s, when I was at  as I said, and blind people around the country were starting to raise issue: we have the ADA, it was passed in 1990, but I still can’t get $20 out of an ATM machine because the machine is not accessible. And they came to  and they came to Linda Dardarian’s firm in Oakland, and they said, can we use the law to fix this? And for various reasons I describe in my book, we decided to write letters to the banks instead of filing a lawsuit, even though they would have been good lawsuits. We wrote letters to Bank of America, Wells Fargo and CitiBank, and it took four years, four or five years, because there were no talking ATMs at the time; but we never had to do a lawsuit, and it was just a great experience because the blind people who were part of that effort were so skilled, technologically. Of course, they had come and said “we want to use ATMs independently” and the banks got to meet those people—people like Gerry Coons, Roger Peterson, Cathy Martinez and others—and it just worked, because blind people could give input. We talked about everything from what color—now it seems, OK, ATMs are all the same, but what color should the cancel key be? And what should the talking instruction say? And toward the end of that, a couple of the more technologically skilled people—in particular Roger Peterson and Gerry Coons—are like, well you know, Lainey, great job, talking ATMs, but there is this new thing called online banking and we’d better make sure that’s accessible. And that was my first foray into the web, and thanks to the farsightedness of the blind advocates that worked on the first cases, we talked to the organizations, we said “this online banking thing has to be accessible.” The WCAG, the web content accessibility guidelines, had just, WCAG 1.0 had just gotten adopted—I think it was 1998 (just had the 20th anniversary). So that’s how we got that first Bank of America agreement that we talked about earlier. And when that whole process was over we were like, wow, that was a lot better than doing a lawsuit! That allowed the clients, who typically in lawsuits don’t have a very active role—I mean, sometimes they do, but typically they don’t—it allowed everyone to share their concerns in a safe space, so to speak. We could really hear—there were concerns from the banks that were legitimate, and safety and cost, but instead of fighting about it and waiting for a judge to tell us what to do, we were able to work it all out. And so, we’re like, that’s a good thing, we should call it something, and we called it Structured Negotiation, and I wanted to write a book about it because I felt it was something that people could learn, both activists and lawyers, just like you learn to be conflictual and aggressive. There are strategies to be collaborative, and that’s really what my book is about.
Chris: My background in accessibility has primarily been workplace accommodations, and I see an awful lot of change in focus away from the workplace, where blind people now have about an 80% rate of unemployment, to—I don’t want to say frivolous, but you know, things like let’s make Facebook accessible and other things that have nothing to do with jobs or education or being able to build a foundation for a good life. Where do the priorities lie?
Lainey: That’s a good question, and something I grappled with when I was first approached by *Rhein Charlston and other Red Sox fans who were blind, who could not access the Major League Baseball website. Until that time, I had mostly been focused on financial issues, working with banks on accessible banking information. We had done accessible pedestrian signals with the city of San Francisco in structured negotiation—I wrote about that in my book, which was a real safety issue, the ability to cross the street safely. We did some work with other health care institutions—accessibility matters for “important issues” like finance and healthcare, which of course it does, but I tell you the truth, I think if you ask people what is your favorite case that Lainey ever did, they would say, “Major League Baseball!” And the number of people who are impacted by—I mean, I’m not a sports fan myself, but I learned through that case that people like to listen to their hometown games, and people don’t live in their hometowns, and therefore they really rely on the web. So I learned from that not to be judgmental about what’s important and what isn’t, and to understand that people with disabilities have the right to participate in all aspects of society, all of which are digital in the 21st Century. As to employment, I think that’s been one of the biggest failings of the ADA, are the dismal employment rates, and I do think there’s starting to be more of effort. I have been doing some work with an organization called Disability IN, that is a business-to-business nonprofit that focuses on inclusion and diversity, and I just love this organization because they’re really working on the details with these big companies, about what it takes to hire people with disabilities, have the processes in place to make sure people get hired, throughout the employment cycle: get hired, work, be promoted, can be retired. And while the focus of that has sort of long been in the HR department, now everyone understands that without accessible technology in the workplace, we are not going to have a diverse workforce. And Disability IN has an accessibility committee that I work with that really understands that, Microsoft’s been doing some great work on that. Is it perfect? No, but I think there’s a growing recognition and—and here’s where the lawsuits come in—there are starting to be lawsuits on the employment side of things, and I think that is gonna also help really push the needle. I agree with you that employment has been left behind and is critical, but I’m not so quick to say that I know this is important, this isn’t important.
Chris: Going to a broader question, why is diversity itself important?
Lainey: I’ll speak to that in a second, but you also mentioned education. That’s another place where the law has played a role in moving things forward. I have not done a structured negotiation with higher ed or K-19 institutions, but again, the National Federation of the Blind and Brown, Goldstein and Levy and Tim Elder, who’s another disability rights lawyer who does really important ethical work, have done great work in the educational space and there’s a couple of really good settlements that really lay out what it means to have an accessible education environment. Just in the last month, there have been settlements with Harvard and MIT on what it really means to have a good program on captioning for deaf students. So there is a lot of work being done in the education space—not so much work, I think the gains have been further along in education than in employment.
Chris: In California, our mutual friend Lucy Greco has been talking a lot lately about all of the online educational materials that—well, she works at Berkeley, that the UC system had online—they’re just taking down because they don’t want to go through the expense of making it accessible, so it’s not just going to be inaccessible to people with disabilities, it’s going to be inaccessible to everybody.
Lainey: Well, I really get sad when people say, You know, I’m just gonna close a business, I’m just going to take down the videos, I’m just not going to provide that—because we want inclusion, we don’t want this—talk about backlash, public backlash. We don’t want disability rights to be seen as, oh, this is so expensive we’re going to take away what people have who aren’t disabled. So when that happens, as it happened at UC Berkeley, it’s distressing. And it doesn’t need to, because the ADA was originally designed, and still designed, to recognize that, you know, if something is too expensive, under the law and based on the size of the institution, the ADA is not designed to put anyone into bankruptcy nor does it. I mean, it’s too bad it happened at an institution with someone so great as Lucy Greco in the web department (of course she had nothing to do with that). But Lucy is a good example of the employment side, and back to your question about diversity—when you have disabled people (Lucy is blind) in jobs, especially in policy jobs, but really in any job, it will make the organization as well as the products that that organization produces, more accessible. I mean, I did a presentation once with Microsoft, and I just love what they said—if you have a deaf person working in the cubicle next to you, it’s a lot less likely that you’re going to put out a video without captioning. Or if you have a blind person, it’s a lot less likely the video player won’t have controls that are accessible. So, it’s not only important to the people getting the jobs who need employment, but to the outcome of whatever the organization is doing, I believe will be more creative. There’s a lot of studies on diverse teams make for more innovation and creativity, all sorts of diversity, including disability.
Francis: This past week there was a Democratic debate in Nevada, and someone asked Bloomberg if he thought he deserved having his $50 billion, and his response was basically, “yeah, I worked really hard for that.” I mention that because I’m a PhD, I worked my butt off because I wanted to cure diseases, and just about everyone I know works really, really hard, so the notion that for some reason this one man’s workload was 50 billion times more than the bottom 125 million Americans, struck me as absurd. There’s a larger issue there, which is that our society seems to have lost its appreciation for how interconnected we are, and how diversity is just a fact of life. We live in this mosaic, and what makes us function is the fact that we do have such diversity to a large degree. And I was thinking, just as an issue, it’s kind of really critical right now because I think we’ve lost sight of how important it is to honor those of us who maybe aren’t capable or even interested in making what’s considered financial success their goal, but play an integral part is what’s keeping society going.
Lainey: Well, first of all, when Bloomberg said that I almost threw my shoe at the television. I was like, are you kidding me? Of all the bad things he said, that also stood out in my mind. My husband just had to have, he’s fine now, but he had to have spinal surgery for something, and every medical professional who helped him, he was in this very expansive mode and he would say, “thank you for not becoming an investment banker! Thank you for becoming an anesthesiologist!” or “I’m so glad you chose to use your skillset to do this, or do that, instead of just make money.” So yeah, we have a lot of problems in our society right now that are too big for the scope of this conversation, but it is true that I’ve heard many disabled people use the term, you know, disability is just part of the spectrum of the human experience, or the continuum of the human experience. And I know my life is certainly enriched and better that I—I remember when I was first exposed to disabled people. Even though I’m in Berkeley, California, which is the birthplace of the modern independent living movement, and even though I have, as a person who considers herself progressive and on the left and I was a civil rights lawyer working in a firm doing race and gender cases and I was a union labor lawyer, until I went to [dredef] I just had no idea. I had no exposure—of course I knew people had disabilities, but I didn’t know there was a community, I didn’t know there was a culture. I just didn’t know, and I think even though this is 25 years later, I think people still don’t know. You know, with social media and things like the disability visibility project that Alice Wong runs, and a lot of the louder, more active voices on Twitter, really help people understand that disability is part of the human experience, which as you say, is what diversity is all about.
Francis: I like the promoting idea of neurodiversity, especially in the Asbergers community, and how there’s what I guess they consider neurotypical, which is the maybe like most people fit into that particular form of brain-wiring, but the thing is, you can succeed and live a really really happy life without having those particular challenges that are suited for neurotypical people. And you know, I think this idea of comparing everyone against the idea of idealized human functioning is just a very short-sighted, I guess easy thing to fall into.
Lainey: Well, there’s some great autistic speakers that I’ve heard at accessibility conferences, among them Jamie Knight, who works for the BBC in London and Ashley McKay* who is in Australia. And I’ve heard them both say independently, you know, if you’ve met an autistic person, you’ve met one autistic person. And in design now, companies like Microsoft or Adobe, who are really focused on inclusive design, I think they call it “design for one, build for all.” It’s like, just recognizing that all of us are unique and that disability can be an innovator and you know, like disabled people, we’re not looking to be cured, we’re looking to be included. And that’s the privilege, really, that those of us in digital accessibility have, advocating for building or writing or podcasting, whatever role we’re playing, is to just broaden up what people think of when they think of technology and digital.
Francis: I’m wondering if non-adversarial approaches to resolving disputes is something that could potentially backfire? The closest I’ve come to being in a situation where I viewed that was a divorce, and you know, we decided the most spiritual way of divorcing was to get this guru dude, his name was Hari something or other, and he brought us together and he tried to explain what could go wrong if, you know, we didn’t come together. And he told us all of these dirty tricks that people use and how it just wreaks hell in their lives. Unfortunately that became sort of like the checklist of my spouse in how to proceed, and we ended up in court, and the whole thing sort of backfired. It does make me wonder sometimes if non-adversarial approaches sometimes possibly get a backfire, or if it’s just more appropriate sometimes than others?
Lainey: The reason we did not call structured negotiation “collaborative law,” is because collaborative law is a process that developed in the family law space. And I don’t know—you said “guru,” I don’t know who you used or what their training was, but there’s a whole world of collaborative lawyers who have conferences and training and, because I wrote this book, I’ve gotten to know those lawyers who do things very similar to structured negotiation in different fields, like there’s business lawyers who want to be collaborative. I believe there is a role for adversary, but first of all everything can backfire, things don’t always go as planned, that’s what life’s about. But I think there’s an imperative for collaboration, and I think—I had a chance to speak in Basque country, Spain last year to collaborative lawyers who didn’t know anything about accessibility, and I came to do a training on structured negotiation, and as we were working on developing the training, I said, well, do you want me to put in some stuff about accessibility, and these guys were so open and they were so interested. So we ended up sort of doing a half-accessibility, half using collaboration to advance accessibility. I think collaboration is particularly well suited for accessibility, because including disabled people in every aspect of accessibility is key to success, and I think that includes advocacy too. And so with structured negotiation, we’re able to have meetings, you know, like we work with a pharmacy in Texas, and they hadn’t really known any blind pharmacy patients. I mean, their individual pharmacist did, but the top people in the corporation didn’t, and structured negotiation—and—I tell these stories in my book—allowed people to be in the room together, and share stories, and that makes the need for accessibility—yes, it’s a civil right, it’s a law, it’s a requirement, it’s good coding practice and design and everything else—but it’s also about people, and it’s also about stories. And if you can come up with an advocacy strategy that lets people talk to each other, it advances the cause.
Chris: How do you think we might be able to get the story of accessibility out to more people? I often get emails just from random business owners saying they got a letter saying they were about to be sued—they have no idea what to do, and they’d never even heard of accessibility.
Lainey: Yes, it’s very unfortunate when people’s first exposure is being the receiver of a letter like that. I think there’s a lot of ways in, and the web accessibility initiative of the World Wide Web Consortium has a really great website with so many free training and business case and accessibility statement information, so much. I refer people there, I encourage people to go to conferences. I also encourage people to find—in San Francisco, we have the San Francisco Lighthouse and there’s, in Massachusetts there’s Perkins and the Carroll Center. Find your local community, and just sit down and see if you can learn something, or start a relationship. On my website, which is LFLegal.com, I have a resource section, and there’s a category in there about usability testing, which lists nonprofits that can help companies get some direct experience with disabled people and how their technology is used. And a couple of those resources are online themselves, so like Knowbility, who runs a really wonderful conference called AccessU, which I know you are aware of—they also run an online portal where they have a database that people with disabilities who can test technology and give feedback, and organizations can participate in that. So, once you get past the fear and panic of getting a lawyer letter, there’s a lot of resources out there that can help people do the right thing.
Chris: Just as a quick shout-out, the Lighthouse of San Francisco is my favorite of all of the blindness agencies in America. I think Brian Bashin does an amazing job, and I think Erin Lauridsen, their technology director, is absolutely amazing.
Lainey: I would second that. They really do a great job, and Erin’s been just an amazing addition to that team. I often speak about fear—we know fear is a bad motivator in most aspects of life, you know, family, religion, neighbors. You don’t want to, like you can’t move forward if the whole thing is fear, and I don’t like how accessibility gets put in the fear category because of these lawsuits. But if you get one, or you hear about one, you just have a responsibility to get past the fear and connect with people with disabilities to make things accessible.
Francis: For me, one of the main emphases for beginning this was, I had a sense that there was this huge potential, largely unmet, for making the world a better place right now, with regards technology, with regards to harnessing the goodwill of so many people who are just decent, hardworking, want to make the world a better place. And I kind of feel a sense of optimism that we just had this huge wellspring, this huge resource that is somewhat untapped right now, for what can make the world a better place. And I was wondering if you might share my optimism for the future, and why.
Lainey: I do write about optimism in my book, and I think optimism as a trait is an important trait. I don’t think that structured negotiation would have succeeded without optimism, because we have this aggressive court system that, it would be so easy if you weren’t trusting of collaboration and optimistic it would produce results, you’d just throw in the towel and say I’m going to go file a lawsuit. And Helen Keller says nothing happens without hope and optimism. So I’m a big believer in optimism—I think it is a hard time in the world right now to be optimistic, the racism that has been exposed in the current administration, that’s always been there but now has free reign, is very frightening. I’ll be a lot more optimistic when a Democrat wins in November in the US, politically. I don’t usually opine about things like that, but you’re asking me about optimism—I’m optimistic about the younger generation stepping up and reading the riot act to the world about climate crisis and climate change. I do think—and one of the reasons I like working with disability and I think the larger corporations in the United States are really starting to get accessibility. I think that the work Microsoft is doing and, like we said, no company is perfect—but there’s, under the micro scale of digital accessibility, not talking about climate crisis internationally—yes, the tone has changed. I think hearing large corporations, Accenture, they’re also doing a great job, Adobe is doing some great work—just hearing them talk, it’s not everything, it’s not every product, but I think there is a shift. So, I’m optimistic about that. But we can’t sit back, we all have our role to advancing inclusion, and we can’t stop doing it. But am I optimistic? I guess yes, I guess I’m still an optimistic person, although I do think there’s some pretty serious hurdles in our path.
Francis: The world really* needs lawyers right now, especially in the environmental world, civil rights—lawyers are just such an essential part of what can protect people, protect the earth and make the world a better place. Given that we do have such a heterogenous sort of population of people in society who are…you have on the one hand—I don’t want to simplify too much—the people who are trying to be really honest and work together and make things happen in a way that’s good for everyone, then you have others that are totally predatory and will come into a negotiation that’s supposed to be non-confrontational, that’s supposed to be more non-adversarial, and just be manipulating the whole time and trying to win. So—I don’t think I simplified it well.
Lainey: Well, I think I know what you’re getting at, or what I’m hearing—is bringing up two things for me. One, I know sometimes I sound like Pollyanna-ish, but there are a lot of lawyers who are trained to be certain way. But in structured negotiation, because from the very start we try to be transparent and kind of down to earth and explain, this is the problem you have, we would like to solve it with you. And we do that in emails and letters and phone conversations—people behave differently in this process than they do in adversarial processes. I have had friends who are traditional lawyers say, oh, do you ever deal with this person, he’s so difficult, and blah blah blah, and I’ll say, that hasn’t been my experience with him. And I think many lawyers I’ve talked to who have represented some of the biggest companies in this country that I’ve negotiated with have told me privately that this has been the best experience of their legal career. So I think systems can force people into certain behaviors, and when you give them an opportunity to behave differently, I’ve seen people do it. On the other hand, so no one thinks I’m like a total unrealistic person, there are lawyers who are in it for the wrong reasons, and whose behavior is something that I think hurts, not just the legal profession, but digital accessibility, and I used to feel responsible to convert all those people. And especially new people who are filing cases who originally I thought, oh great, the more lawyers the merrier who want to do accessibility. And I would try to talk to some of these people that we talked to, that we talked about at the top of the hour. And you know, those lawyers brought me to tears more than lawyers on the other side of the bargaining table. Now I realize, you know what, I can only do what I can do, and I can’t change lawyers who want to use the ADA for the wrong reasons. I can see my role as trying to make people realize that most lawyers, 99.9% of disabled people, are using it for the right reasons, and you know I have a slide in some of my talks, don’t throw the baby out with the bathwater. The fact that there are unethical lawyers, or lawyers who don’t believe in collaboration, who don’t have any mindfulness, who are just like aggressive bulls in a china shop—don’t let that make us forget that the ADA is about inclusion and this diversity of human experience that we’ve been talking about. So I try not to let it upset me, and I try to let my optimism stay solid.
Chris: Well, with that, we might as well reach the end of this interview, and I’ll ask you the same question we ask everybody, and that’s—is there anything specific that you’d like to promote or plug or pimp or—it doesn’t have to be your work, it can be somebody else you think is doing something remarkable?
Lainey: Well, there’s a lot of people doing a lot of remarkable stuff. I guess I’ll give a shout-out to Haben Girma, I don’t know if your audience knows her—she has a book called Haben: The Deafblind Woman Who Conquered Harvard Law, and Haben is a great representative of this work and these issues, and I have been lucky enough to do some book events with her and I see the audiences line up, and I think the best thing about what Haben does is how she answers people who say to her, “oh you’re so inspiring.” And she never lets it go to her head, she says, “what have I inspired you to do? Name me two things that you’ll do to improve inclusion of disabled people, based on your inspiration.” And I love that, you know. I love the concreteness of it. It made me two things: you’re inspired, tell me two things that you’re going to do when you go back to work on Monday that will result in more inclusion in the world or, as you say on this podcast, making the world a better place. So that will be my shout-out.
Chris: Well, thank you very much for coming on Making Better, Lainey.
Lainey: Thanks for having me, I really enjoyed talking to you.
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