S3 #02 The cost of ignoring website accessibility

Kristina Podnar, host: From the very first episode of the Power of Digital Policy to today, accessibility has always been an interesting topic.

Intro: Welcome to The Power of Digital Policy, a show that helps digital marketers, online communications directors, and others throughout the organization balance out risks and opportunities created by using digital channels. Here's your host, Kristina Podnar.

Kristina: Our guest today is Stacey Turmel. Stacey is an attorney with more than 25 years of regulatory compliance and business litigation experience, along with five years of higher education compliance. In private legal practice, Stacey has litigated patent trademark and copyright infringement matters along with corporate compliance issues before the state and federal courts. A rise in the Americans with disabilities act website compliance lawsuits against businesses inspired Stacey to provide compliance consulting by leveraging her deep litigation background with robust digital accessibility expertise. These days, you can find Stacey assisting organizations as a website site compliance legal consultant, and a trained facilitator. Stacey, welcome to The Power of Digital Policy podcast.

Stacey Turmel, guest: Thank you, Kristina. I'm super excited to be here.

Kristina: I'm super excited on my end because you are what I've dubbed the purple unicorn because when we last spoke, there's not many of you out there. There are not a lot of lawyers who are also fluent in digital who can speak digital at two in the morning. How did you get to be one of these unicorns?

Stacey: I am a lifelong learner, and I have always loved technology. So if there was a new way to streamline and be more efficient in practice, I want it to be a part of it; if there was a new phone or, when we used to have, remember PDA's personal digital planners and that type of thing, I had one, I was always looking at the ability to infuse technology into my practice and just make things more efficient because I know that time is the one thing that we have no ability to create more of. So I was always looking for a way to make more time!

Kristina: So why accessibility? I mean, there's a lot of other kind of areas and topics that you could focus on, but accessibility, I think has a special meaning to you.

Stacey: When I was working in a role in higher education compliance for a law school that I was recruited to help clean up. I had the opportunity to work with a student who is blind. And I was quite ignorant initially. I was surprised by her capabilities. Her ability to work so quickly on the email put together Microsoft word documents; how grammatically correct they were just, I was just amazed at, at her ability to even be in, in law school.. And the more time I had an opportunity to spend to get to know her, the more that I realized the challenges that she was facing on a regular basis. I think one of the first things that she said to me was Stacey, I can't use a mouse, so I have to use a keyboard to navigate everything. And I had to; honestly, Kristina, I had to sit with that for a few minutes. Like what would life be like to not use a mouse? To try to do everything. And when we started to spend more time together and I would see these challenges that she was facing. I was like surprised at all of these strides that we had made with regards to digital technology the sophistication and different aspects of things that have become so much better in the last 15 to 20 years, and I was still shocked at the struggles that she was dealing with on a regular basis, just with simple tasks.

Kristina: I'm always surprised that the web content accessibility guidelines, introduced in 1999, I think somewhere in like April or May of that year. And here we are in 2022; we still don't have full-on accessibility, like basic accessibility on websites. Do you think we will anytime soon?

Stacey: I'm hoping, initially, when I was getting into this particular area, I thought, oh, well, we'll see a culture shift. And maybe in five to seven years, the culture will be accessible. That's what I initially thought. And so there, this will be a finite space to occupy, but the embracing or acceptance of accessibility and the importance of it has been a slow burn, very slow burn. Sometimes I, I wonder if the pilot light's still on and quit on it. So I, I think that eventually, we're going to get there, but when I talk to some of my colleagues and some of the different peers that I present with when I teach my continuing legal education seminars, they talk about handling cases back when restaurants were required to provide ramps, in different buildings were required to provide ramps and the pushback that was in existence during that time and how long it took for that shifts to take place. So I think it's going to be a while.

Kristina: And it's interesting because I've asked several folks that are very focused on accessibility, and that's what they've been doing for decades now is working on educating and getting accessibility to be adopted into digital operations within enterprises. And one of the things that they keep telling me is a challenge is the lack of rulemaking and clarity around the ADA. Do you think that's a fundamental challenge, or we're it really is the resistance or the challenge to making progress?

Stacey: I think that that is certainly a part of it. We live in an age where we would prefer to be given direction versus the opportunity to a certain extent. Please just tell me what to do. I don't necessarily have the bandwidth in my mind to think about how do I come up with that solution? And we're, we're used to having those solutions of Google it. Right? You'll get your answer. And so, when you're doing that, you're not getting any answers. And I think that that's making it very difficult. So though, the web content accessibility guidelines certainly provide some guidance in that area. The fact that the federal government defacto relies upon WCAG 2.0. Or maybe there are 2.1 now to have their websites in compliance. It provides a little bit of guidance, but again, to your point, there is no hard and fast. This is what you're supposed to do. And this is how you do it. There's a case law that's being developed along those lines. But you know, your typical business owner is not reading federal case law to make a determination on how to create their websites to avoid litigation.

Kristina: I'm shocked when you say that. I imagine every business owner out there is just dying to raise some rulemaking, but thank goodness for people like you, who can explain a lot of that to folks because rulemaking can be interesting, but sometimes a little bit dry.

Stacey: To say the least.

Kristina: One of the things that I've kind of been thinking about in anticipation of this conversation has been accessibility around websites because there are also mobile applications, other online channels, and we're running into this huge new era everybody's talking about the metaverse, which is really all about virtual reality, augmented reality internet of things, a lot of which are not accessible today. And don't look like they're going to be accessible anytime soon. Do you really see that? Like, how's that going to play out in this new emerging space?

Stacey: Well, I think that's a great question. Something that I was just looking at the other day. I mean, the team that I work with when we evaluate these websites, I work with the blind team, and I specifically work with the blind team because they're out there using the websites and testing them on mobile applications included in other digital products. And they have a clear understanding of what their needs are when they're using their assistive technology. And so they offer solutions, which is fantastic with the organizations that we work with to provide some insight and feedback. For example, to your point about virtual reality and augmented reality, to a certain extent, it is directed to the sighted user, right? I mean, you're immersed in this digital place, but what else can be done? And I think that's the question that frequently gets overlooked, what else can be done? And so when I talked to my team about it, they will talk about haptic feedback, could they get some touchpoints, some vibration, some different sounds if they're blind, but not deaf in order to get some guidance on what might be taking place in a particular aspect of the metaverse or something like that, so that they can also have the opportunity for the enjoyment of that space. And those cues are available. That direction is as possible. It's not necessarily thought of initially during the creation because the creation is directed at strictly a visual medium, but there's going to need to be additions made that would actually provide a more immersive experience if you think about it.

Kristina: That makes a lot of sense and so many different technologies and new ways like you said about really making the metaverse or these numerous of technologies available to everybody to experience in a way that makes sense for them. In terms of options for getting organizations to pay attention to accessibility, what are some of the options that individuals have? What is the best way, in your opinion, to get organizations to start paying attention or more attention?

Stacey: Well, I think there are, with anything that you're dealing with, there's the proactive option, and then there's the reactive option, right? Proactive is, this is something that the incident brought to my attention, and it's something that I want to do before I am forced to do it. And I want to do it for different reasons, whether it's to reach a particular market segment or from a social justice standpoint, it's a, no, it's a population that we want to be inclusive of, that type of thing. And then there's the reactive position, which is I'm doing it because I'm going to get sued or I am being sued, and a judge has told me I have to do it, or I've made an agreement to do it. So the goal would be initially for any particular situation to have education, right. Awareness and I would say that that is the bulk of what I do. But usually, it's coming on the heels of somebody being sued. I'm just going to be candid people don't usually reach out to a lawyer just to say, Hey, I'm not here for a hug. Then, you, they are coming to me because they're like, Stacey, I have a problem, and I teach you to help solve it. And then, and a lot of them, to their credit, have never really heard of ADA website compliance. I mean, we're, we're seeing it more and more in the news, but then we're seeing it in a segment of the news that is related to that if that makes sense. Again, if you're a business owner who's running your business unless it's something that's making regular news that you're seeing in a large, and, and website, organization, or news authority that you would regularly visit like it's on the front page if you will unless that's the level of news that's being made, you really not finding it, so we'll have some front-page notoriety, like when Domino's took their case up to the Supreme court. When other the Eyebobs company had the class action lawsuit those have being mainstream issues that should hopefully have caught some attention at some larger organizations, but you know, the small business in America is not going to be looking at in this limited area to get this information, they don't know what they don't know, and that's completely understandable. So I usually have people coming to me when they've been blindsided by law, a demand letter, or a lawsuit. And they're like, what is this? And I need some help. And somebody puts them in touch with me to see what I can help them. I know there was a really long.

Kristina: No, that's a great answer, and it's making me think, right. Because I'm also wondering if law schools are actually teaching accessibility, privacy is such a hot button. It feels like everybody's talking about privacy security and data breaches these days. But I just don't know who to ask, or maybe I'm not listening to the right channels, but it doesn't seem like everybody's talking about accessibility enough.

Stacey: No. No, they're not. And its privacy is certainly a hot topic and it, it impacts everybody, right? And there's this viewpoint that accessibility only impacts a small portion of the population, but it actually impacts everybody, but people just don't look at it that way. The preference would be to put it over here in this corner, and hopefully, it will take care of itself, and that's just unrealistic. Accessibility impacts all businesses from the standpoint that there is; from a risk standpoint, there's certainly the risk of being sued. Accessibility also impacts all businesses from the standpoint that you have a market segment out there of people who want to shop on the internet because it's the safest and most convenient place for them to shop. And it makes their life more enjoyable by having that ability to do though, and they have the disposable income to utilize. So why wouldn't you take advantage of that? The promulgation is, and WAG also when you take a look at them and some of the things that they talk about just, for example, having headings in a particular order, to make things seem more organized and make sense. That's helpful. I mean, I don't know about you, Kristina, but when I'm reading something, if it looks like it's flowing properly, versus I see a big headline, then I see a little headline, then I see another big headline, and then a really tiny headline. And I'm like, where am I? Did I miss this section? So that makes sense. And it makes it easier for a user to navigate the web. You don't want to see a lot of flashing. You don't want to see a lot of automatic scrolling. I mean, those are things that I find to be frustrating. I mean, I know that the internet is not built only for me. I recognize that I'm to say that a lot of people that I come in contact with when we start to go through the recommendations that are made and, and the web content accessibility guidelines, actually make websites easier to navigate for everyone. Not just people who use assistive technology.

Kristina: You're making me have flashbacks to like 1998 and spinning and flashing and lots of purple things. And I'm like, ah, those things shouldn't exist. And it's interesting because every so often, I still come across pages that have that I'm like, wow, I feel like we should like, just have a delete button, a big delete button for everything that was like before a specific date on the web.

Stacey: And you're right. Those websites are out there or how. Buttons that are so close to each other, and you're like, I didn't click that. And the next thing you're having to like go out and go back in, or for example, error correction suggestions. When you're filling out a form, how frustrating is it to fill out a form on a website? And then all you're getting is you can't submit, and nobody's telling you what's wrong. That's a requirement. Wouldn't you like to know? Oh, I didn't include my zip code versus having to scan. So these are recommendations that are included in the web content accessibility guidelines that would make life easier for everybody.

Kristina: And this is just sound user experience 1 0 1. I mean, you're not talking about rocket science, right? These are just fundamentals that make everybody's life easier, whether you have a disability or not. Stacey, what are structured negotiations? Sometimes people think structured negotiation sounds like an alien.

Stacey: I love structured negotiations. That term was coined by a colleague of mine, who I had the utmost respect for, Lainey Feingold. She's written several books on it for the American bar association. Structured negotiation is a collaborative process in looking at resolving a lawsuit or resolving an issue from an interest-based standpoint versus a posturing based standpoint; it's a, it's a type of negotiation that has actually been applied in other areas of the law and is now making its way into business law, which I find to be fantastic in the right instances. So because of the structured negotiation, you have two parties coming to the table to have a conversation that's based on each of their interests to try to come up with a resolution. So there isn't posturing, and like turf wars, if you will, this is let's look at a way to resolve it. That's the whole reason to participate in it. And both parties are on the same page with regard to that. That's why they're at that table. And so, they work through a process of coming up with a creative solution that works for both of them. The goal is to win, win where most of the time, if not all the time in litigation, the goal of the court is to make each party equally unhappy. If the court has made each party equally unhappy, the court believes that as a success, nobody comes away with a win or a landslide which is kind of concerning, right. It's just like, so I'm going to enter into this arena, knowing for sure. I'm going to leave unhappy. So it's like, how much money do I want to spend with that? So I love structured negotiations from that standpoint. However, it assumes that you have both of those parties at the table. And I tend to look at the step that is assumed in that equation, which is getting the parties to the table and not in every situation is the ability to engage in structured negotiations, going to work. For example, if you have, and this is quite commonplace to a certain extent in the ADA website compliance area, you have a plaintiff who's just machine generating demand letters. They're just firing them out and just looking to see who's going to bite and who's not; this is a plaintiff who's looking for the least amount of effort for the most amount of money. That's not somebody who's going to be willing to stop bullying, engaged. In an intentional process that is interest-based, right? I mean, it just, it doesn't make sense, but this is not what their goal is. When you have a potential issue that is going to be involving a large organization that could have wide sweeping negative consequences for that organization from a PR standpoint from, just a branding standpoint. From just a remediation standpoint, that's ongoing, you have an opportunity with the plaintiff in that situation to, the goal with the ADA, when it comes to website compliance, you can't get a settlement federally from the ADA you're you get attorney's fees, and you can get compliance or remediation, what's called injunctive. So if the goal is injunctive relief or remediation, meaning, making the website accessible, then the plaintiff, that's what the plaintiff is looking to achieve, then why not enter into a process like structured negotiations with that large organization that has a lot at risk to accomplish that goal. And then that also gives that large organization the opportunity to be an industry leader in the space of accessibility, which is not going away; it's going to be here.

Kristina: That's fascinating. I think you're actually making it sound fascinating is what I'm trying to say, Stacey, you making it sound like a really great resource or a great venue, if you will, to get to a solution that works for everybody around accessibility, but hopefully also making the web more accessible on the whole in moving us in the right direction, rather than like you said, having it be a punitive situation where there's really not a lot of winners.

Stacey: Yeah. And so, like, for example, that one case that I was talking about Eyebob s. They sell glasses and eyewear, and they have physical locations. They also have online stores, a large organization. And in October of 2021, the case was actually filed in January of 2021, but in October of 2021, the court certified a class. So made it a class-action lawsuit that was brought against Eyebobs for website accessibility. And this was huge. And in my opinion, from the standpoint, that talks about putting an exclamation point next to the word for purposes of the organization. And they were able to enter into a settlement rather quickly. But one of the things that, or a few of the things that are included in that settlement, requires Eyebobs to retain an accessibility consultant, which is pretty standard in these agreements. Something that, you know, terms that I work with them on a regular basis. But not only that. So we knew the remediation was going to happen. No surprise there, but this is what got added. They have to post a notice of class action settlement on its website that links to a class action settlement website. They have to publish links to the class action settlement notice to the National Federation for the blind, the American Council for the Blind, and an additional seven or eight other organizations. You want to talk about a PR nightmare?

Kristina: Yeah. It just seems like it would be a lot easier to be accessible. And just to have somebody that early dedicated to accessibility and trying to really move that needle forward internally.

Stacey: Because I mean, here's the thing, and this is something that, you and I have talked about, the internet is forever. This website that's going to sit out there about the class action settlement. I'm sure it's up there for a certain period of time, but it's going to be there for a while. It's going to be discussions. It's going to be memorable if you will. And probably not the memory that Eyebobs is looking for at this point in time.

Kristina: Especially given the fact that they're in the glass business. I mean anybody in general, but for those who really are supposed to be helping see things better, definitely having an accessible website or having individuals be able to access services and products would be critical.

Stacey: Well, and also the fact that when the court-appointed like the court certified the class. They certified the class as all blind or visually disabled individuals. So it's, usually in class action setup in class action lawsuits, we have to have more than one plaintiff having a similar injury, if you will, more than one person, who's been the subject of a tire blowout. In those cases that we've heard of over the years here, the court indicated that basically anybody who was blind could be part of this class. To me, that applies to any business out there.

Kristina: Hmm. That's interesting.

Stacey: That's wide-sweeping. That's concerning,

Kristina: and that's actually why every business needs to pay attention and actually not just business, but any organization. A lot of people have been talking about web overlays, lately, pieces of code that are supposed to run over websites and automatically reformat how browsers display the page so that people can use screen readers and other assistive technologies to access that content. A lot of folks basically say you know what, that doesn't work. And it doesn't really get at the fundamental issue of providing accessibility at the get-go. What are your thoughts on that are? Have you had experience with web overlays?

Stacey: Yes. Well, I'll just make mention, and then I'm going to let it go. But the Eyebobs company was using an open. And that's what precipitated was one of the things that precipitated the lawsuit. Unfortunately, my thought process is one line of code will get you sued. And it's because it, it doesn't do what it claims it can do, unfortunately. Or let me say this in all of the websites that I've tested and I've tested websites that range from five pages to 25,000 pages. I've not found one with an overlay that actually works.

Kristina: So how are these companies making money? Are they just sort of selling snake oil at this point?

Stacey: I would say that it would be important for every business owner who is making a decision with regards to the utilization of that type of tool to read the disclaimer, to read what is being warranted to read what is, is actually being provided to you because that's important information to have. So I like in an overlay to basically like a wrap on a car with a bad paint job. So if your car has a bad paint job and you put a wrap on that car, it looks different. When you take the wrap off, the car still has a bad paint job. You've just basically kind of put like a cover on it. You really haven't fixed the problem. And, and that's concerning, the overlays that have these little menus that pop up that, wow, I can change the text and I can change this, and I can look, I can make it bigger and look, I can do. Your browser actually has the ability to do that for free. Like, I can go right now into Chrome, and I can increase the zoom screen as much as I want to. It's at a pretty decent size right now because I've been around for a while, but I mean, you can take it up quite a bit. And, the requirement is that the tech says to. You don't need a fancy little menu to do that. And so, a lot of times, these menus that exist out there look good, and they make people feel better. Like they're doing something, and that's important. I recognize that, but the blind and visually impaired people who are using their assistive technology to navigate a website aren't using those menus. Because they're blind. And generally, what I've found is that the overlays interfere significantly with the assistive technology. Like when they say, make the website keyboard navigable. So now you have some sort of piece of technology that is doing that on a website. So when a user is trying to navigate that website, using their assistive technology, Then you're going to, you're going to have, the competition there and there's going to be, there's going to be a breakdown, and we had a situation in a website that we tested where the overlay kept disrupting the assistive technology. Like, it was almost like you just had something interrupting. Like if you just imagined something, oh, here's a great example. There's a smoke alarm. How fun is it to listen to that? And it's when the battery's going. I mean, it is like every minute, and you're just like, oh, I got to take care of that. So that was what was happening. But every five to 10 seconds, it was just like interrupting the assistive technology. I don't recommend them. I understand why they're out there. I understand why they're so successful. Everybody would like to know that there is a solution to the problem. And they would like to make it, so let me just check that off my list. It's done, it's taken care of moving on to something, next and I get it, small businesses are usually out there with people in a certain position going, Hey, can you evaluate these ten different accessibility options? I've not heard that; it's usually something that's just brought up either out of necessity to have to deal with potential risks for litigating. Or it's being brought to somebody's attention as part of a compliance protocol, and they're trying to get ahead of it. I get it, but reading the fine print is the best recommendation that I can make. I know one of 'em in one of the forums that I've belonged to one of the gentlemen who, he does some accessibility testing. He compiled the list of 200 lawsuits from 2020 that were the result of overlays and listed out what the overlays were that were being used on the website. So that's just 200. And I know that there's more, I know that there's probably quite a few more, so it's a risk.

Kristina: Yeah. It sounds like buyer beware know what you're buying, and either no magic bullet basically is what we're hearing.

Stacey: Well, and then you also have to add to that. That, there are plaintiffs out there that go to those overlay websites to see who is listed on there and go, huh. That's who I can send a demand letter to, and, and you know what, here's the thing I was, in that situation, I went to a particular vendor and saw that the Florida bar was utilizing a particular piece of code. And I was like, oh, look at this. The Florida bar must have vetted this. Nope. So, just because you see somebody else that seems to be a large reputable organization listed doesn't necessarily mean that it's doing what it says it's doing. So yeah. To your point, buyers be aware.

Kristina: I run into so many organizations that say, oh, I actually put like a little disclaimer in my footer that says we're trying to be accessible. We know we're not, but we're trying really hard. Or the equivalent of that, we strive to be accessible according to WCAG 2.1 standard; does that actually buy people anything? Would buy them something? If there is actually demonstrable evidence that would show a change in the remediation of a website over a period of time. Usually, call this an accessibility statement, and there are different levels and versions of accessibility statements that I've crafted over the years.

Stacey: The ones that you know are just like, basically a little disclaimer and the bottom of a website, as far as I'm concerned, those are worthless mean you're not demonstrating any commitment to accessibility by putting one line at the bottom of your website. No more than if you're buying one line of code, so if there have been demonstrable shifts in a website, somebody is in the process of remediating and they would prefer, please provide us with feedback or difficulty, A, if you're providing an email better, make sure people are replying to that email address. And B, if you're providing a phone number, you better make sure somebody is answering that phone. When I go through and do customer service, escalation training, and different things like that for some of the organizations out there, because the minute that they get a call from somebody with a disability, it's like, everybody's frozen. Like we have a deaf person on the line, or there's a blind person on the line saying they can't pass it. They're just kind of like, wait, what are we doing? And it's just like, these are real people, just like anyone. These are real people who should know it's okay. But if, if you provide an email and then there's, there's no response. Then you're basically just re marginalizing that person, why, talk to so it's actually good, I think, make things worse or an organization, if that's what they're doing,

Kristina: What do you wish that every lawyer out there knew about digital accessibility? If any lawyer out there is listening or if anybody in the digital operation space is going to kind of nudge their legal team to listen to you talk because I think it's so worth it to do it. What do you want every lawyer out there to know about digital accessibility?

Stacey: I want them to know that it's more complicated than they might think. And that even if they just consulted with an expert like me for an hour, it's going to be so worth their time versus going out there alone, trying to figure it out. Because my experience in that situation is it usually will cost five times as much to clean up the mess. Then, if she could have had it being resolved properly in the first place from the get-go.

Kristina: That's a great way to end our conversation. Stacey, if people wanted to reach out to you, where can they find you?

Stacey: My website, the internet is for everyone.com, and my email is stacey@theinternetisforeveryone.com.

Kristina: Thanks for being with us today. Such a fountain of knowledge generously sharing that with us.

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