Several legislative, regulatory, and enforcement initiatives impacting digital accessibility are currently underway in the United States at the national level. These include proposed legislation as well as on-going and planned rulemaking, and recent official agency guidance on topics ranging from AI hiring tools to telehealth accessibility. At the same time, enforcement of existing laws continues by both federal agencies and private sector advocates. This session will provide an overview of what is happening in the federal digital accessibility legal space and what to expect in 2023 and 2024. What impact will current initiatives have over time, and will they change compliance considerations for organizations? Topics include:
- Proposed federal legislation impacting websites, software applications, accessibility in airline travel, and the CVAA (21st Century Video Accessibility Act)
- Federal agency rulemaking initiatives on web accessibility standards, self-service transaction machines (kiosks), higher education digital accessibility and possibly more
- Statutory Changes in Federal Agency Accessibility Responsibilities
- Federal agency digital accessibility initiatives beyond rulemaking [from Equal Employment Opportunity Commission (EEOC), Department of Justice (DOJ), Department of Education (DOE), Department of Health and Human Services (HHS), and Federal Communications Commission (FCC)]
- Trends in digital accessibility enforcement by federal agencies and private lawyers and advocates.
Session Chair: Lainey Feingold, Disability Rights Lawyer and Author, Law Office of Lainey Feingold
- Eve Hill, Partner, Brown, Goldstein & Levy
- Sachin Dev Pavithran, Executive Director, U.S. Access Board
- Anil Lewis, Executive Director, Jernigan Institute, National Federation of the Blind (NFB)
- Jennifer Mathis, Deputy Assistant Attorney General, Civil Rights Division, U.S. Department of Justice
Good morning, everyone. And welcome to today's panel discussion for the evolving U.S. Federal Digital Accessibility Legal Landscape. At this time please welcome disability rights lawyer and author from the Law Office of Lainey Feingold, Lainey Feingold. Whoo. (Applause.)
LAINEY FEINGOLD: Okay. Good morning, everyone. Thank you for joining us for our session on the federal regulatory and legislative legal landscape. We have an amazing panel here. We have a ton of content to share. I want to set a little stage for why we are talking about the federal legal landscape at an accessibility conference. So we all know that accessibility is designed and development and training and every single thing each of you do, policy and testing and international work, all of what you do in your jobs as accessibility, why is law part of accessibility? Because accessibility is a civil right of disabled people. Accessibility is a human right of disabled people. And when we talk about the law, sometimes we forget that bigger picture. And I want to say that first. So we can all hold on to this as we dive into the details of what is happening. The other thing I want to say is that yesterday, I won't name the person because maybe he has changed his mind since then, said on the stage oh, let's get the boring part out of the way so we can get to the fun stuff. I want to give another frame for how to think about the law, in addition to the fact that digital accessibility is a human civil right at the Microsoft Ability Summit in 2021, a woman from Kenya, Lizzy, said the legal framework gives us the possibility to dream. The legal framework allows us to dream what is possible. And here in the United States, we are so lucky to have already a framework that gives disabled people rights to dream what is possible in the digital space. So we're going to talk a lot about how to make that better, stronger. It should be faster, clearer, quicker, people shouldn't abuse it. All those things. But big picture we have Civil Rights laws that give us permission to dream. So with that I want to introduce our I want to ask our panelists to introduce themselves.
EVE HILL: Hi. I'm Eve Hill. I'm a disability rights lawyer. I have been in disability rights for a long time now. But I am currently a disability rights lawyer at the law firm of Brown, Goldstein & Levy in Baltimore and Washington D.C. I'm the founder and principal of inclusivity strategic consulting. I'd both help you if you want to do the right thing and sue you if you don't.
LAINEY FEINGOLD: Who would be better.
SACHIN DEV PAVITHRAN: Hard to follow Eve right after that. Sachin Dev Pavithran, Executive Director with the U.S. Access Board. Been working in the accessibility space for a long time. Advocate at heart and I love the work that needs to be done by also enjoying the conversation that we've been having about AI and everything else.
ANIL LEWIS: I'm Anil Lewis, Executive Director of the National Federation of the Blind. I don't know why I'm on this panel. No. I love adding the voice of the 50,000 members of the Federation to these discussions because we're talking about issues that will help blind people live the lives that we want.
JENNIFER MATHIS: Jennifer Mathis. I'm currently a Deputy Assistant Attorney General in the Department of Justice Civil Rights position, which I call Eve Hill because Eve had the position before I did during the Obama Administration. I have been a disability rights lawyer for a long time. Longer than I care to remember, something around 30 years or so. So happy to be here.
LAINEY FEINGOLD: And this all reminds me of two things, Sachin said it is hard to follow Eve. I wanted to say wow, Jutta. Just wow, Jutta. I don't know if you oh, yes. All I could think was like how lucky are we to have like Jutta in our camp doing this work. I just was and I knew that every word out of your mouth was another page behind it with data. I'm Lainey Feingold, a disability rights lawyer. My hair is a lot grayer than anybody's up here. I have written a book about collaboration in advancing accessibility. And I do a lot of public speaking. And I thank the organizers, G3ict for having the session and having me moderate it. What we are going to do in lightning speed, we are going to talk about what's pending new legislation. We're going to talk about what's pending let me back up. What's pending possible new legislation. What's pending possible new regulations. What else is the Federal Government doing besides regulations to help us all as we advance accessibility? And what's happening on the ground in the federal space around digital accessibility in the law, given the laws that we already have, which is a lot. This afternoon in the Livestream, Eve and I will be doing a speed dial talk for 15 minutes about what's happening on the state level in the United States. That's a plan for today. We're going to start out with the pending federal legislation and the first one we have here was the Communication Video Technology Accessibility Act. I think I had Jennifer, but then Jennifer said no, I don't really want to talk about the pending legislation. So yeah. So it was a great session here yesterday on the CVTA, which is I'm not going to go into too many details except to say that I listened to the hour, Larry that's in the front row could get up here and give us another hour. I am happy that people are working to make the CVAA better. This new version of it, that I encourage you to look online. A lot of good resources. Will improve accessibility for communication and video technology for deaf people, deafblind people, blind people and really everyone. And that was the message I got from yesterday, making sure caption quality is better. So many things that are, you know, CCTA was ten years ago. Like I said the law is not as fast as we need it to be in the digital accessibility space. It is wonderful that the CVTA is on the horizon. It has been reintroduced. Someone asked at the end of yesterday's session, how are we going to get this thing passed. Karen said you just watch us. We're going to get it passed. Karen, I don't know if you are in the room. She rattled off every single communication, video accessibility law that has been passed for the last 25 years. She said we did that and we are going to do the CVTA also. So that's the first thing that's on the horizon which impacts all of us. The next one pending is the Website and the Software Application Accessibility Act. And for that, I'm going to give it to Eve to kick it off.
ANIL LEWIS: The thing I will say piggybacking on what you are saying about the CCTA, I love the fact crosscoalition of disability organizations are very actively involved in the development and implementation of this legislation. Far too long things have been done on behalf of people with disabilities and what we did for you. And then we have to have fame, grace and appreciation. I love the fact building on the panel from yesterday, that evolving legislation would therefore participation is happening. I'm very excited about this legislation because websites, software applications, they're just becoming a way we access information. I had the opportunity to testify on a panel, Eve and I, we seem to run into these places. Talking about the virtual front door. It is important that we recognize, people with disabilities. Finally got used to move around the existing doors, we adapt. That's what we do. Those avenues are being closed. We are being forced to go into a new area of accessing information that is inaccessible. It is like once we get to a place where we finally made some progress and getting to a place where there is equity involved the game changes. What we have done as a community of people with disabilities is we've gotten savvy enough to adapt progressively and ongoing. We are trying to get ahead of this where it is important for us to be very vocal in this process. And there is 264 and I guess we will talk about that when we get more to the regulatory piece of it, crossdisability organizations that are watching this progress forward. I'm happy that we are actively engaged in those discussions. We are meeting with our policymakers on the hill. We know no one likes to see the sausage get made, how the sausage gets made. But we are actively making some sausage. And we are committed to once that meal is served people with disabilities at that table.
LAINEY FEINGOLD: And there will be something for vegetarians, too. One thing about the Web accessibility and software app, one difference I know about is that it would bring developers into the legal frame. Someone want to say something about that?
We get a lot of complaints from the folks that we help through the courts. And that it wasn't mine, I bought it from somebody. They gave it to me. I thought it would be accessible. And I have not very much sympathy for that. But it is important that the that they have abilities to go after their developers and that we also have the opportunity to hold responsible the people who actually originally created the problem. So the Web Accessibility Act would allow would allow people to pursue the developers who make the inaccessible website and really put the blame and the liability where it originates.
LAINEY FEINGOLD: One thing about these proposed pieces of legislation, we already have the ADA. And the ADA is so crucial to that framework that makes dreams possible in the United States. So we are trying with both of these laws, CVTA and the Web Website and Software Application Accessibility Act adding to the disability community's alphabet soup of new things that we have to remember all these laws. We have laws that already cover websites and also ways to bring in developers sometimes and that's being done. But what these laws do is make it stronger, make it clearer, but it is really important not to think oh, well, there is these two new laws that I heard about at MEnabling. So I will wait to see what happens. This is not waiting to see what happens with new legislation. It's letting you know that new legislation is on the horizon, hopefully will be passed. And to double down on making sure the legislation we have is enforced. So is there anything else that anyone wants to add about the CVTA or website software accessibility? Okay. So in addition to the proposed legislation, there is a lot going on with proposed regulations. So the law is one thing. The regulations is what makes laws happen. So one part of making laws happen. So the first pending regulation that we want to talk about is the not surprisingly, ADA Title II web accessibility regulations. Who better to talk about than Jennifer.
JENNIFER MATHIS: Okay. First to talk about the proposed rule in two minutes. So
LAINEY FEINGOLD: How about three.
JENNIFER MATHIS: Maybe three, okay. So I will do my best with that. I will give a very, very high level summary. So I think certainly the biggest takeaway is that the technical standard that the rule proposes that state and local Governments adopt for their websites and mobile apps, their rule applies to both, proposed rule applies to websites and app, WCAG 2.1aa. There have been comments. But some people saying oh, you know, that's too advanced. You should do 2.0 and other comments saying you should do 2.2. It is currently in the proposed rule 2.1aa. That's the standard that state and local Governments would have to ensure that its websites, mobile apps that uses to deliver its programs, services and activities are meet the meet that standard. Unless it is an undue burden or a fundamental alteration, those are standard ADA defenses. There are also a number of exceptions, and there are exceptions to the exceptions. So it is a little complicated. But the exceptions are generally designed to try to get at content that, you know, people with disabilities wouldn't actually be using. And, you know, they I think they do or don't get at some of that content. The lines are not perfect. That's why we have proposed rules where they are open for comment, feedback that can be taken back for consideration in a final rule. For example, I will give you a couple of exceptions. There is a lot of misconceptions. For archived content, web content that would meet all three of the following facts would not need to comply with the WCAG 2.1aa standard if the content is archived, maintained only for research reference or record keeping and the content is kept in a special area for archived content. And the content has not changed since being archived. That would make it archived content that's accepted from the 2.1 standard. However, the ordinary reasonable accommodation, modification requirements, apply effective requirements, apply if a Person with Disabilities needed access and was saying do research on an archive and able to use that material, would make a request for reasonable modification of having materials made accessible. So that person would through the ordinary obligations under the ADA be able to get those materials made accessible through reasonable modification request unless it was an undue burden. So those things still apply and I think it is important for people to understand that throughout this regulation, we try to make clear, I think we could make even clearer that the standards that apply now still apply. So even though this sets a technical standard, which would not take effect, if this rule does go into effect, the technical standards would not go into effect for two years. And for very small entities three years. In the interim, it is not like there is no the ADA stops applying to web accessibility and mobile app accessibility. Right now the Justice Department is enforcing web accessibility requirements and private litigants, like Eve and digital accessibility requirements every day. And so there isn't a technical standard that the Government has adopted. However, courts have kind of looked at this and looked at the standards that exist. And, you know, in many cases courts have said you need to comply with 2.0 or 2.1. And we have settlement agreements that say you need to comply with 2.0 or 2.1. That all applies, even in the absence of a regulation, continues to apply even before a regulation takes effect. So I think that's important for people to understand. We'll just talk briefly about one or two of the other exceptions. Just to keep this within the time frame, oh, talk a little bit about these education exceptions, I think these are the ones that have gotten the most comments. An exception for password protected course content. One for K to 12 education. Not like the learning management system itself. So say like Canvas or something for elementary school kids or other platforms, annex for college students. Not the platform themselves but the course content. So if you have a class where you actually did not have a student with a disability and this content was specifically for this class, not for the public. So not something like a MOOC or course content open to the public, but password protected and you didn't have a student with a disability in the class or for K to 12 students you didn't have a parent with a disability who needed access, then in that case the material could be accepted from having to comply with the standard. The theory being nobody would actually need the material to be made accessible. But as soon as there is a student with a disability enrolled in a course and that kid does need accessibility, then within five days all the material needs to be made accessible for kids with all types of disabilities. That and for higher ed, the parent piece does not apply. So for K to 12 it is a student with a disability or a parent with a disability for college and university, postsecondary institutions. It is just a student with a disability needs the material to be accessible. Then it has to be accessible. And so anyway, I will say with the comments, a lot of comments on that. Comments saying, you know, five days is not workable. There were comments that I thought were interesting from higher education groups, essentially saying, you know, we don't think we can do five days here. But, you know, essentially you should have universal design. So essentially make us do it all the time because we can't go back and forth between not doing it and doing it.
JENNIFER MATHIS: So and obviously, you know, there are many comments from disability groups that said, you know, get rid of the exceptions. And highlighted issues with particular exceptions, but also said just just said eliminate exceptions. You have the undue burden, fundamental alteration exceptions, don't have these exceptions. Just use those defenses. You had comments from state and local Governments. Including also listening sessions that we heard saying this is all too much. And we can't do this. And you should have more exceptions. You should have the effective dates be much longer than two years, three years. You should have four to six years. You have disability groups saying six months. Lots of comments from I think across the spectrum around the same issue but with somewhat different takes. That's my high level summary on the comments.
LAINEY FEINGOLD: I should have said the status. The status is that the notice of proposed rule making, which is NPRM, it has been out. The comment period is now closed. The DOJ has it in their hands to go through the comments and come up with the next step, which is hopefully a final rule that everyone feels good about. I know Jennifer, the ADA, our strong piece of legislation, gives rights and protections to state and local Government digital properties. And Eve does a ton of work on that. You want to give one example of how the current ADA is working without these regulations? Like it never happened.
EVE HILL: Sure. One example is the Domino's Pizza Case. They were sued for not having an accessible website. It went almost to the Supreme Court. It was found that Domino's needed to have an accessible website. And that's Title III. In Title II the Justice Department has reached a settlement with U Berkeley to make all its college materials accessible. Course content, databases all be accessible. And the jury on that case, on the second time that went to trial, awarded over $200,000 in damages to our two students. These things are happening even in the absence of rule. The ADA continues to apply, continues to really require significant accessibility requirements of covered entities.
LAINEY FEINGOLD: Another example, we need to know this stuff. We want regulations and we can't wait. Because the existing framework already requires it. Next yes.
ANIL LEWIS: Several things really quickly. Everyone in this room if you consider yourself an industry expert should be offended by exceptions. They are counter to what we know is true around accessibility. So I mean in all the examples that you can think of, first and foremost goes to be restated, it already exists that there is an ability for undue burden and a fundamental alteration. That requires the entity to have a roadmap for meeting the expectation. If you give them an exception, that goes off the radar. So that's just unattainable, the 260 organizations that I referenced earlier, no exceptions. It just doesn't make sense. Microsoft is making Xbox games accessible to blind people to play video games. It shouldn't be difficult to make it possible for people with disabilities to access public information, Social Security, housing, I'm sorry I know that it is closed. We need you to be echoing to your comments as the professionals that you are, recognizing that it is going to take us backwards. As long as it moves forward. But if you start trying to take something away from me that I fought so hard to get, I'm go going to raise hell about it and I want you guys to help me raise hell about it.
ANIL LEWIS: I'll behave now.
LAINEY FEINGOLD: We have a great panel, don't we? We do. I see a hand up. We are going to leave room at the end for questions but we want to get everything out on the table. We are going to pass on the questions right now. Thank you for having a question. You will be first up when we get to the questions. Okay. So we're on the big topic of what's pending in the regulations. Next one I want to mention is Sachin to talk about the selfservice transaction machines or currently known as Kiosks. So could you start with the status and then, you know, talk about where that's at?
SACHIN DEV PAVITHRAN: Sure. I appreciate the comment that Anil just made, exemptions is not something that we, you know that's not something we want. But I also want to recognize there is a process that we go through in the rule making process in the Federal Government. And I want to recognize all the public comments that has come through for the Title II. I'm not part of DOJ and I haven't seen what the conversation is going on within the DOJ about these comments. It is an important process that informs what the future of the rule looks like. What you saw in the NPRM is not the final version. It is something that was proposed. But the public comment does play a role in what that future rule is going to shape into. So I don't want to make it look like it's done. It is not a done deal yet. But it is important it is important to also stay on top of where that is going. I'm not saying that we don't have to stay engaged. But I don't I don't also want to say it is Doomsday either. With that said, also selfservice machine, we are engaged in multiple rule making. As a small agency, it is pretty large for our agency. So selfservice translation machines, Kiosks has there is a lot going on in that space since especially since COVID hit. We are seeing Kiosks in every kind of transaction space that you might imagine. We had the NPRM come out earlier this year, we received public comments. And right now we are in the process of getting our NPRM out for the selfservice transaction machine. I can't give a specific date when that's going to come. Our hope is to have NPRM out early this early 2024 for public comment. Which I hope this there will be engagement from the community, both industry and organization consumer organizations. Because we want to hear from you because that's where that's what informs us on what that final rule is going to look like. So stay tuned on what's coming down the pipe. It is our goal is to have that rule finalized hopefully again, fingers crossed, by the end of this term of the administration. That's the Biden/Harris Administration.
LAINEY FEINGOLD: Yeah. People not totally familiar with the alphabet soup of it, the Access Board has issued and is taking comments on the ANPRM, which is the Advanced Notice of Proposed Rule Making. Next up is the Notice of Proposed Rule Making. And after that is the final rule. So I just want to say also that this Kiosk selfservice transaction machine topic is another where we can't wait.
We're not waiting.
LAINEY FEINGOLD: We have so much to say. Many of these topics I write about on my website, which is lflegal.com. And I have a Kiosk Article, I put in there whenever there is an update. There has been a lot of structured negotiation and litigation and great work from industry. There is venders here at this conference showing their accessible Kiosk work. Last Thursday was an important decision out of a federal court in Los Angeles, the Quest Health Care that you check in, has to be accessible. We want the regulation. Sachin, we need them. We want them. And we can't wait. So yes. Thank you for that. Next up is the Department of Ed updated 504 regs.
EVE HILL: Yeah, so both the Department of Health and Human Services and Department of Education are planning to issue updated Section 504 regs this year. NPRM is out right now and open for comments. It is only 400 pages long. So I encourage you all to read it with great detail. But it has a lot of important things in it. It covers medical equipment accessibility. It covers nondiscrimination in the child welfare context. It covers nondiscrimination in the decisions to provide treatment such as organ transplants. All very, very important things. And then the Department of Education similarly its reg under Section 504 hasn't been updated in decades. And their plan is to get a Notice of Proposed Rule Making out this year. I hope that happens. Knocking on wood. That would be another opportunity to cover all these entities that get federal money that will need to comply with these standards.
LAINEY FEINGOLD: When these come out, we want to say here that the public comment, which everyone in this room has the right to make, is really important. Because like Sachin said it is called a Notice of Proposed Rule Making because it is not the final rule. So when these things come out, and at the end we're going to give you resources to stay current on this because things are happening fast and furiously. We encourage everyone to put in their comments.
So people should comment now.
LAINEY FEINGOLD: Now. Go home. Put a note. Put in the calendar for next Monday. Okay. Back to the Access Board, electric vehicle charging stations, which is like really important to the whole infrastructure of getting electric vehicles on the road.
SACHIN DEV PAVITHRAN: We are seeing EV charging stations popping up everywhere. Within the current the infrastructure bill that came out about year or so ago, there is five billion dollars, half a million EV charging stations being sent for installation of charging stations around the country. We want to make sure EV charging stations which currently are not accessible, be accessible when these federal dollars are being sent out for building new EV charging stations. So the technical requirement document that was put out last year by us, by the Access Board, gives a pathway on what industry can do to make sure that accessibility is followed when installation, when EV charging stations are being manufactured. But we are undertaking our rule making on this as well. The schedule on this one is a little sooner than the SSTM rule. Our hope is to have an NPRM by the end of this year. Public comment on that with a hope to wrap up that rule making by mid, mid again, I hate to give a definite date. The next year some time. So, you know, again there is a lot. Keep laughing.
LAINEY FEINGOLD: Anil is taking notes over there.
SACHIN DEV PAVITHRAN: I'm going to get a call from Anil to check all those dates. The goal is to get some of these big rules done by the end of next year. This going to be out for public comment by the end of the year. Our hope is to have, you know, the feedback from all of you so that that final rule shapes the way the public and industry is wanting it to look like.
ANIL LEWIS: Nice.
LAINEY FEINGOLD: Okay. So there is also an NPRM out from the FCC, Federal Communications Commission on video conference accessibility. Videoconferencing already has to be accessible. This rule is about primarily it is about the different things. But the way I understand it it is about technical standards and diving deeper into the standards. I can't Karen, is that closed already?
Now it is open. The FCC generally has said functional standard. (Off microphone).
LAINEY FEINGOLD: Okay. So the that NPRM is open. And I do have an Article about that in my website with links to how you can file comments.
I'm sorry, I think it is commentary is actually closed. But always file file comments for exparte comments and they will accept them (Off microphone).
LAINEY FEINGOLD: Okay. So the comment period is closed on the FCC videoconferencing NPRM. However, no one knows more than Karen here. And she says that you can still file late comments. And I encourage you to take a look at that and do that. And like I said I have an Article on my website about that. So that's it for the proposed legislation and the proposed regulations. We want to speed us up a little bit so we have plenty of time for comments. We want to talk a little bit about some federal agency work that isn't regulations. That it is hard for the public to know this stuff. I mean that's that's one thing. We're going to do the resources at the end, but in case we run out of time I want to encourage everyone to get on the email list of both the Access Board and the Department of Justice and the FCC because they send information. And you find out about these things before the comment period is closed. So I think the agencies do a good job of trying to get the word out. But there is a lot. So that's a good way to follow it. Okay. So the first one we want to talk about is the AI hiring tool guidance which is from the DOJ and the EEOC.
JENNIFER MATHIS: So this came out in 2022. It is specific to the use of algorithms and Artificial Intelligence in hiring. And the ADA's application to that. There are two separate guidance documents. It wasn't a joint guidance. It was a joint effort between the Justice Department and EEOC. So EEOC's guidance is more in the weeds. It is longer and more detailed in certain areas. And it was really aimed I think more at venders who are producing and designing and selling this AI technology that is used by employers in their hiring. DOJ's is a higher level document. They were intended to be companions. That's more of sort of high level, know your rights in this area. And know your obligations in this area. And so DOJ's, it is pretty short. It is on ada.gov, which is now redesigned. And it is it is easier now to find things than it used to be. But this guidance basically talks about different ways that the ADA applies in this area. It talks about what kinds of algorithms and AI are being used for hiring purposes and how they may end up screening out people based on disability. Talks about the different obligations you need to think about, like does the AI screen out, does the tool that you are using screen out people based on disability when that's not necessary. Does it measure effectively somebody's disability rather than measuring their skills and abilities for the job. And reasonable accommodation obligations. And so it talks about all of those things, gives some examples and some also practical suggestions for employers on what to do to make sure that you are not violating the ADA including things like also just telling people when you are using AI or an algorithm in a hiring tool. So that people know, know that they may need to request a reasonable accommodation, which might be a different hiring methodology for them. It might be changing the tool. Providing clearer procedures for requesting reasonable accommodations and making sure that requesting one doesn't hurt somebody's chances for the job. And that they know that.
LAINEY FEINGOLD: We did agree in advance that we can cut each other off when we are running out of time. We want to make sure we hit everything. So you can all follow up. So apologies.
JENNIFER MATHIS: I'm done.
LAINEY FEINGOLD: I do have a plain language Article on my website. There is the telehealth guidance from the Department of Justice and the Health and Human Services that really talks about the importance of accessibility in telehealth. COVID vaccine portal things. I have an Article on my website that we gather all the resources. It is health care. We can't wait on this. And already the ADA already requires it. And there is a lot of great work already being done. That's what we will say about health care. Eve, you want to say something quick about the EdTech?
EVE HILL: Released a letter explaining to them that schools are responsible for the accessibility of their own web presence as well as the thirdparty platform's content that they use on their websites. And the content that they provide as well. We have the information to pursue this. We have it in guidance and court cases. We just don't need the regulations.
JENNIFER MATHIS: It emphasizes courses open to the public.
LAINEY FEINGOLD: Sachin, on the 508 assessment process which is part of the regulatory federal scheme?
SACHIN DEV PAVITHRAN: Sure. Obviously there has been a lot of spotlight on 508. I'm glad that Congress is paying attention to the lack of implementation of 508 that still exists. Last year in December there was the Consolidation Appropriations Act to work with the Access Board and GSA to create an assessment criteria so that federal agencies can assess themselves on their conformancy on 508. That all agencies were supposed to get all their assessments done by August of this year, which has been done. And I was pleasantly surprised we had a significant turnout as far as the data we received. Right now the GSA and the Access Board is looking through the data and the report back to Congress is due in December. I'm not going to be very surprised with the data. I think most of you will note that the data is going to show how bad the implementation of 508 is. My hope is this is a roadmap to what Congress can do to make sure that 508 is taken seriously in the Federal Government.
JENNIFER MATHIS: I would say there is a recent Court of Appeals decision in D.C. that says that people have their own private right of action to enforce Section 508. So that was one of the reasons why implementation has been so lacking because the enforcement mechanism has not really been clearly there.
LAINEY FEINGOLD: The last section we don't have time for. Scattered throughout these laws are the laws that exist, Section 504, the Americans with Disabilities Act, other state laws. Even I will talk about on the Livestream they are being enforced now to protect the access to digital accessibility rights of disabled people. They're protecting the Civil Rights of the disabled now. I'm going to throw out 30 seconds, case said that a library of VR software has to have captions for people who are deaf.
LAINEY FEINGOLD: Virtual reality. Which was kind of reassuring because the law is so slow. And we are still talking about websites. Oh, God. Eve, give us a couple good cases and then we will close.
EVE HILL: As Jennifer mentioned the D.C. circuit decided that federal employees have a private right of action to enforce 508 against their agencies. You will soon see a lot more enforcement activity in that space. The EEOC just last week filed a case against NTI, which is an agency that hires folks for to do customer service for our companies. And they were refusing to hire blind and low vision people because they said that their company customers' software was not accessible. And so the EEOC is suing NTI for covering up the discrimination of their customers. So that's going to affect both the technology accessibility requirement, enforcement as well as who is responsible for making sure that no discrimination happens in that chain. There is also a false claims case in California. There is money here. If someone designs an inaccessible website and sells it to a Government and gets caught they have to turn back in what they got paid, including the bounty to the person that finds out that the website was not accessible. It has been settled, but I don't know the settlement agreement. There are things happening in this space while the Federal Government's guidances on regulations roll out. So that's a tiny little taste of what's happening on the ground. Now if you like this kind of thing or just want people to know that the first week of December I will do two hours with replay media on the digital accessibility legal landscape. So if you want more law, how to keep up, already said Access Board and DOJ has an email and FCC that's really good. DOJ, Access Board, NFB, Brown, Goldstein, me, LF Legal and Seyfarth Shaw has a blog to keep up on things. That's all we got. I want to open it for questions. We have six minutes and 45 seconds. So try to state your question briefly and we will try to answer. (Applause.)
LAINEY FEINGOLD: And the first question goes to the woman in the front here who patiently had her question earlier.
I'm Sandy. Thank you all for the update. My concern is I guess the same as NFB, these standards go in place. How does that weaken the ADA and Rehab Act when they are putting exceptions in place for things that should be happening? It has been 50 years and 34 years. Why are we considering exceptions? (Applause.)
EVE HILL: That's an excellent question. One asked by the comments from the disability rights organization. There are defenses and those are the benefit of responding to the situation, how difficult it is to make something accessible and the resources of the covered entity that needs to make it accessible. Those are useful for the covered entity and less of a blanket exception for people with disabilities. And so the questions that I think are raised by the disability groups commenting on the regulations, sorry, Jennifer, are why do we need these blanket exceptions for things like that to include new content for heaven's sake? And that are permanent exceptions no matter how AI develops and makes things so much easier to be made accessible, even after the fact. No matter how the technology develops, these permanent exceptions will be in place and roll us back from things that are already required even by the Justice Department.
ANIL LEWIS: The other piece, that this won't be important for people with disabilities. That just stinks. If you make an exception because this doesn't apply to Persons with Disabilities, are creating a barrier for the person with a disability to participate in that particular area. That's why the whole exception is being as you can tell upsets me.
Good morning. My name is Anthony. I'm an attorney along with Eve. My question to you is specific to employment. And I'm glad that Jennifer touched on it a little bit. I'm wondering if you think the existing framework of the ADA and the toolkit is sufficient to address Artificial Intelligence and how it is being used in a lot of ways to desperately impact people with disabilities and exclude them from employment. Do you think it is sufficient? Do you think it is up to federal, state, local levels to address those kind of potholes? I think for one example that comes to mind is in New York. You have a recent law that came out that requires routine audits. Are those things we should be looking for, or do you think that the ADA is sufficient?
EVE HILL: To some extent the ADA is sufficient. We're going to be able to tell whether people are screened out by these AI tools, for example, in the hiring context. It is going to be resource intensive and a difficult thing. And we shouldn't have to go through that process again. So I do believe that there are additional requirements that are needed for audits, opportunities to ask for a reasonable accommodation for information to know that they are being tested by an Artificial Intelligence screening mechanism for all those things that are called now best practices that need to be incorporated into federal regulations. So there is consistency across the board. I have been thinking about this in the hiring context. They are screening people for benefits using AI. There needs to be tools beyond looking at the results that show discrimination. Because at the time when you look at the results, the damage has already happened. And we need to stop the damage from happening by conducting audits and using the data, pushing the data so that you use you bend the AI towards inclusion of people with disabilities instead of exclusion. And towards and making sure there are notices and opportunities to opt out.
JENNIFER MATHIS: This is an evolving area, where the technology is evolving so rapidly. There have been efforts across the federal government to regulate in this area, to do guidance in this area where it was quite complicated once people got into it because everything is changing so fast. And so, you know, all of the efforts to kind of identify a particular set of practices I think didn't necessarily account for all of the things that were happening. And so I think that, you know, some of those efforts resulted in sort of early efforts to just do a more high level approach, but you are going to see as time goes on and there is more enforcement and some of this I think is going to get litigated through enforcement measures before there are clear guidelines about exactly what the ADA and other Civil Rights laws may prohibit and allow. You are going to have to see it attached to some sets of fact. But it is because of the pace at which the technology is evolving that has made it somewhat challenging to sort of do comprehensive guidance upfront. And so you are going to see more and more as things go on.
LAINEY FEINGOLD: We only have 18 seconds on this countdown clock. I wanted to give everyone one sentence on what you would like this audience to take away from our topic of what's happening in the federal legal space.
EVE HILL: Keep pressure on the federal government to do what's right and don't wait.
SACHIN DEV PAVITHRAN: What Eve said, hold us accountable. If we don't hear from the public, we just assume it is all good.
ANIL LEWIS: Got to push the message that people with disabilities are value added and not an extension to something else. They can recognize as we make it inclusive it is better for everyone. It is not just for people with disabilities.
JENNIFER MATHIS: Everything the federal government has done is because of the advocacy of the community of people impacted. And so that advocacy matters and please keep doing it.
LAINEY FEINGOLD: And my takeaway is the digital accessibility is a civil and human right of people. When you are talking about the law, put people with disabilities front and center in that consideration. Don't forget the Civil Rights. Thank you so much for being a great audience. (Applause.)
Thank you to our panelists. And please enjoy a 30minute break. And we will reconvene in the breakout rooms at 11 a.m. Thank you.
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