[NFBOH-Cleveland] Braille Monitor April 2023: The Right to Participate Fully in Twenty-First Century America

[Suzanne Turner]

The Right to Participate Fully in Twenty-First Century America

 

by Anne Raish

 

Anne Raish

>From the Editor: Civil rights has no meaning if there is no enforcement, and
Anne Raish came to the 2022 Convention to say that there would indeed be
enforcement.

These are the words President Riccobono used to introduce her:

 

Earlier this week, we talked about using all of the tools at our disposal to
secure equal access protections for blind people from all branches of the

federal government. We continue to recognize that we do have many allies in
our work, especially to secure 21st century access rights for blind people,

and one of those is our next presenter, who is the principal deputy chief
for the Disability Rights Section, Civil Rights Division in the United
States

Department of Justice.

 

She has been with the Disability Rights Section since 2010, serving as a
trial attorney before coming to be in her currently appointed position. She
has

a long resume of contributions to civil rights work. We're very honored to
have her here at this convention, especially as we continue to be very
concerned

and feel quite an urgency about making sure that we set the standard for all
websites, from employers, public accommodations, and other public entities,

that they be fully accessible to blind people! [Applause] So we welcome her
to discuss the right to participate fully in 21st century America. Here,
from

the Department of Justice, is Anne Raish.

 

Good morning, everyone. I am really delighted to be here to have the
opportunity to speak with you all about the Justice Department's work to
advance the

right to full participation in 21st century America. And I'm especially
excited to be gathering in person for the first time in a really long time!
[Cheering

and Applause] At the Justice Department, we recognize that perhaps nothing
is more fundamental to participation in the 21st century than technology.
Now

more than ever, technology is the cornerstone of how we communicate, learn,
and do business. This was made even more abundantly clear during the height

of the pandemic. During that time, to stay home and physically distance, we
relied on technology even more to do our grocery shopping, to work, and to

consult with our health care providers.

 

We are at a critical point for people with disabilities and technology. The
pace of technological change is staggering. While advancing technology can

open doors for many people with disabilities and provide the means to move
closer to the goal of full, equal, and truly integrated access, cutting-edge

technological advances can leave people with disabilities behind, especially
if the entities that develop, manufacture, and offer them do not make their

products and services accessible on the front end.

 

When Congress enacted the Americans with Disabilities Act and Section 504,
the internet and information technologies as we know them today did not even

exist. For that reason, although the ADA provides and guarantees rights in a
variety of acts and activities, it does not mention the internet.
Accessibility

must be built into the digital environment just like accessibility must be
built into the physical environment. [Applause] Enforcement of these laws by

the Department of Justice has resulted in public entities, businesses, and
some technology developers taking new approaches to accessible technology.
My

goal today is to share with you all the department's role and tools as it
relates to enforcing the ADA in accessible technology. I'm going to talk
about

some recent work in this area, and then I'm going to talk about how we can
work together to enforce full participation

 

The Disability Rights Section, where I work, is in the Civil Rights Division
of the Justice Department. Our work is to advance the rights of people with

disabilities using the ADA. We have many tools to achieve this. One of them
is regulations. Congress tasked us to provide regulations for the ADA, and

we can clarify the obligations imposed by the ADA and how those obligations
can be met. Currently the Justice Department is working on a rule to provide

technical standards to help state and local governments comply with their
existing obligations to make their websites accessible to individuals with
disabilities.

[Applause] But I want to make clear-because we hear this from some
entities-that even without final regulations, the ADA applies to the
accessibility of

web information and services. [Applause] That's been the long-standing
position of the Justice Department, and courts around the country have
recognized

that web information and services must be accessible to people with
disabilities, even without formal technical standards.

 

As another tool to advance disability rights, the department also provides
information and technical assistance to entities who have responsibilities
to

comply with the ADA. To that end, the department has several technical
assistance documents regarding web accessibility and services. Most
recently, in

the spring, the department published new guidance that explains that state
and local governments who offer their programs, services, and activities on

the web must take steps to ensure that their communications with people with
disabilities are as effective as their communications with others.

 

This includes services like paying a parking ticket, registering for school,
applying for an absentee ballot, and any other government program provided

on the web. The guidance also explains that businesses open to the public
must ensure that individuals with disabilities have full and equal access to

their goods and services, including the services they offer on their
websites. This includes retail stores, banks, hotels, medical offices,
entertainment

venues, and restaurants. The guidance provides examples of common barriers,
such as poor color contrast, using color itself to provide information,
failing

to provide text alternatives to images, and inaccessible online forms, where
the forms use labels that can't be detected by screen readers. The guidance

then provides a variety of features that businesses and state and local
governments can use to make their websites accessible. It also discusses the
deficiencies

in automated accessibility checkers and states that a manual check of a
website can provide a better sense of accessibility.

 

This may sound like basic stuff. But our hope is that by putting a document
out like this from the Department of Justice, it will prompt businesses and

state and local governments to put a stronger focus on making their web
service accessible. [Applause]

 

You can find this document on our website, ada.gov, and if there are topics
or areas where you feel that it would be helpful for the department to issue

guidance, please reach out and let us know. We value your insights and your
expertise, and we would like to know about recommendations that you have.

 

We have another tool that we can use when these other tools fail to bring
about sufficient compliance. We also have our enforcement tool, and we can
sue

government entities under the ADA. [Applause] The department has
jurisdiction over all state and local government employers, the activities
of all of those

state and local governments, and businesses open to the public, like hotels,
restaurants, movie theaters, grocery stores, and others. We have
jurisdiction

to enforce the ADA at all of these entities and have brought enforcement
actions against many of them. As you know, many technologies that have
access

barriers include not only commercial and public websites, but mobile
applications, educational software, audio visual multimedia, self-service
kiosks,

e-books, and much more.

 

I'm going to talk about employment first. Employment is key to how so many
of us spend our days, make a living, and even define ourselves. Under the
ADA,

employers must provide reasonable accommodations to employees with
disabilities, unless it would impose an undue hardship. Assistive technology
and accessible

technologies are just some examples of reasonable accommodations. Employers
must also test in a way that tests skill and ability on the job, not just
measuring

disability. Advances in technology have had an enormous impact, but new ways
of doing business, if not implemented with access in mind, can limit
accessibility

or lead to discrimination.

 

For example, many employers now use algorithm-driven hiring tools to
interview job applicants. Job applicants must answer interview questions on
video,

and those video recordings are then analyzed to see how applicants' facial
and voice expression compare to the facial and voice expression of
"successful

employees." The risk that the tool might disqualify individuals with speech
impairments or facial tics is obvious, but less obvious is how such tools
may

disqualify individuals with other disabilities. Perhaps more troubling is
that job seekers may not know that the tool was used or that it led to their

failure in the hiring process. Rejected applicants may have no way of
knowing that they have been discriminated against or that they could have
asked for

a reasonable accommodation.

 

The department also has many settlement agreements with public employers
including a requirement that online job applications comply with web content
accessibility

guidelines, including Dekalb, Illinois; Isle of Palms, South Carolina; and
village of Ruidoso, New Mexico.

Moving on to Titles II and III of the ADA, state and local governments and
public accommodations must ensure that their communication with people with

disabilities is as effective as communications with others. To that end,
they must provide auxiliary aids and services to ensure effective
communication.

An example of those aids and services are accessible electronic and
information technology. They must provide those aids and services in a
timely manner

and in a manner that protects the privacy and independence of the
individual.

In an example of a recent case we did, the Justice Department reached a
settlement agreement with the Champaign-Urbana mass transit system in
Illinois.

An individual who was blind noted that when the mass transit redid their
website, they did so in a way that reduced usability for blind users.
Specifically,

it limited their ability to plan their trips online and travel
independently. The Justice Department conducted a survey of the district's
website and identified

sixteen different accessibility barriers, including insufficient color
contrast, inaccessible hyperlinks, and limited keyboard access. We asserted
that,

because of the redesign of the district's mass transit website, they
excluded people who were blind and with other disabilities' ability to
participate

in the mass transit program in violation of the ADA. Under the agreement,
the district must make the mass transit website accessible for blind users
and

users with manual impairments. The agreement requires the district to comply
with WCAG2.1AA.

 

Also in Illinois, the department is in ongoing litigation against the city
of Chicago to ensure that people who are blind or deafblind have equal
access

to pedestrian crosswalks. It was filed in district court and last year the
Justice Department intervened as a plaintiff, alleging that there are no
accessible

pedestrian signals at over 99 percent of Chicago intersections that have a
crossing signal. Chicago is the third largest city in America, and to put
the

number in perspective, only fifteen of the city's roughly 2,700 crossing
signals have accessible signals.

The lawsuit alleges that this widespread failure by the city subjects people
who are blind or deafblind to added risks and burdens that are not faced by

sighted pedestrians, such as fear of injury or death. We are continuing to
litigate that case, and it remains ongoing.

 

I want to also highlight some matters we've had with public businesses.
During the height of the COVID-19 pandemic, the Justice Department learned
of widespread

problems experienced by individuals with disabilities trying to access
vaccine websites for the COVID-19 vaccine. [Applause] These websites
obviously provide

critical information about COVID vaccinations and enable people to schedule
appointments online. A number of major retailers operated vaccine
registration

portals that were not accessible to people who use screen readers or have a
hard time using a mouse. [Applause] In response to this feedback, the
Justice

Department reviewed the websites of several large businesses, including Rite
Aid, Hy-Vee, Kroger, and CVS. The department determined that these
corporations'

COVID-19 vaccine portals were not accessible to people with some
disabilities. For instance, the calendar on Rite Aid's website used for
scheduling vaccine

appointments did not show screen readers any available appointment times,
and people who used the tab key instead of a mouse could not make a choice
on

a consent form that they needed to fill out before making their appointment.
People who use screen readers could not hear the questions on Hy-Vee's
online

medical screening forms, and people who used the tab key instead of a mouse
could not select appointment times. These are obviously critical functions

needed to make a vaccine appointment!

 

The corporations agreed to make content about the COVID-19 vaccine,
including the forms for making appointments, conform to WCAG2.1 level AA.
[Cheering

and applause] We have also done work in the area of self-service kiosks.
Last fall the department filed a brief clarifying that the ADA requires
public

accommodations to provide auxiliary aids and services so that individuals
with disabilities can fully and equally enjoy all of their services. Quest
Diagnostics

provides health care and diagnostic testing services, and requires patients
to use an electronic self-service kiosk to check in, input personal
information,

choose where to wait, and perform other tasks. No staff are allegedly
present in the check-in area, so patients who are blind must ask strangers
for assistance

or bring companions. Our brief explained that the ADA prohibits public
accommodations from treating individuals with disabilities differently
because of

the absence of auxiliary aids and services, including failing to provide
effective communication with respect to services offered through visual and
electronic

means, like self-service kiosks.

 

I want to mention one more case involving accessible technology, because on
this one we are specifically seeking your feedback if you have experience
with

it. Several years ago, the Department of Justice issued a letter of findings
to the University of California at Berkeley, concluding that Berkeley's free

online content is inaccessible to individuals with disabilities in violation
of the ADA. Berkeley creates and publishes free online content, including

courses on its Berkeley X platform, and it provides thousands of hours of
audio and visual content featuring conferences, lectures, and other
university

events and programming. Its online content is made available to the public
for free, but much of it is inaccessible to blind individuals and
individuals

with other disabilities. If you have tried to access UC Berkeley's online
content, but you were unable to do so because it was inaccessible, we'd be
interested

in hearing about your experience. I have an email address that I hope is
easy to remember! If you would like to reach out on this, that email address
is

 

UCBerkeley at usdoj.gov.

I'll also leave the information up here so you can reach out if you'd like
to.

 

I'd like to end by talking about how we can work together to dismantle
barriers to access in 21st century American life. There are many ways that
we can

collaborate. As you may have done in the past, you can report an ADA
violation through the Civil Rights Division's website, which is
civilrights.justice.gov.

You can contact us to inform us of lawsuits filed under the ADA in which we
might participate by filing a brief or intervening as a plaintiff. You can

recommend technical assistance, and you, of course, can comment on our
pending regulations when they are published. Together we can have a
significant

impact in eliminating barriers to access. The Justice Department will
continue to use every one of its tools to advance full participation in 21st
century

life. Thank you again for having me here today to share some of our work in
this important area, and we look forward to our continued collaboration.
[Cheering

and applause].

 

MARK RICCOBONO: Thank you very much, Anne. We appreciate the work that the
Department of Justice is taking on, and we certainly appreciate the notion
that

regulations are not needed, that the law is very clear about the requirement
for the internet to be accessible. We agree with that! [Cheering and
applause]

On the other hand, the Department of Justice has a lot of weight and tools
that it can apply in this area, and we just want to share by show of voice
our

support for strong regulations from the Department of Justice protecting our
rights on the internet. How about it, folks? [Loud cheering and applause]

 

If you could just share that message back at the Department of Justice, we
would appreciate it! Thank you for being with us today. [Applause]

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