Braille Monitor               April 2023

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The Right to Participate Fully in Twenty-First Century America

by Anne Raish

Anne RaishFrom 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 [email protected]. 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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