Lainey Feingold, Author, Negotiator, Lawyer, Speaker at Law Office of Lainey Feingold

Lainey describes her career as a legal advocate for people with disabilities. She talks about her process of structured negotiation to foster change without litigation. 

Mentioned in this episode:

Info about Accessibility at Blink

(dramatic music)

- Hello.

This is "Digital Accessibility:

"The People Behind the Progress."

I'm Joe Wilinski, the creator and host of this series,

and as an accessibility professional myself,

I find it very interesting

as to how others have found their way into this profession.

So let's meet one of those people right now

and hear about their journey.

All right. Well, here we go.

Getting into another episode where I have the opportunity

to meet with an accessibility practitioner, and today,

I'm very pleased to be speaking with Lainey Feingold.

Hello, Lainey. How are you today?

- I'm good. Thank you.

- I'm speaking from my home office on Vashon Island,

which is near Blink's Seattle headquarters.

Where are you talking to us from?

- I am in Berkeley, California,

in my home office where I have worked for the past 27 years.

- Wow. In that same spot?

- In this very same spot, yes.

- Well, I'm sure it must work out well for you

and I'm glad to have you here to join me.

And I think a lot of people in the accessibility profession

are very familiar with you at least by name,

if not by your work,

but why don't you start by talking a little bit

about what you're involved with?

- Okay.

Well, first, I'll do a quick visual description

because I know that's helpful for inclusion.

So I am in my home office, like you said,

and I'm a white woman with gray hair turning to white hair.

I say that as my most salient visual feature

as a segue into the fact

that I have been in the digital accessibility space

since the mid '90s

and I consider myself an elder in the space,

which is really a privilege.

I'm a disability rights lawyer.

I've been working only on digital accessibility

in the legal space, as I said, since the mid '90s.

I think one of my legal claims to fame

is that I believe in working on accessibility

through collaboration

and I'm very happy to say that in all those years,

I've had to only file but one lawsuit

because I've practiced a collaborative process

called structured negotiation,

and I've written a book about it.

We could talk a little more about it later

if you're interested.

And it's really about bringing the disability community

together with organizations

to work on solutions to accessibility barriers.

That's been mostly what I have done.

In the last couple years,

I've been lucky to have an opportunity

to work with Disability:IN,

which is a corporate business-to-business digital,

sorry, disability inclusion organization.

And I help with the digital accessibility work there.

And I love all my partners from structured negotiation.

We've done the work with big companies,

started with Bank of America, Wells Fargo,

we've worked with Walmart, all who have been great partners,

and many of those same companies are in Disability:IN

and my role there is to do

what I consider my role as an elder,

which is I have a certain amount of know-how

since I've been in the space for so long.

I also have a lot of know-who

and I see myself as a connector

and the digital accessibility community globally

is just so wonderful and generous in sharing.

And so, yeah, so between the structured negotiation work

and the Disability:IN work and the work with my book,

and the last thing I'd say is I do a lot of public speaking

and public writing about the space.

I was saying before I got on the air here

that somehow I'm in this role of like a bridge.

I see myself as a bridge

between what's happening in the legal space

and what the digital accessibility community

really needs to know

about what's happening in the legal space.

So I do a lot of writing and speaking about that.

I do trainings on structured negotiation

with a focus on how can we avoid being a shark

and learn to be a dolphin

when we're trying to get accessibility enhancements?

So that's that's me and what I do.

- Well, you've definitely made a lot of contributions

in sharing your ideas through your community engagement,

all the different talks you've done over the years

certainly is very, very helpful.

And I want to talk more about your current work

and we can talk about your book.

We also like to find out how people found their way

to working specifically with accessibility.

So maybe you could take us back in time a little bit.

I guess I'm an elder as well,

kind of at the end of my career,

but we've all have kind of milestones

that got us to where we are today.

So where did it start with you

where you first either became aware of this area

or you just found your way into it?

- Yeah, that's a good question.

And I too am at the end of the career.

I turned 65 last year

and I've written a book about my work.

And you could start anywhere.

My high school yearbook, people wrote,

"You'll be a great lawyer. See you in court."

So I always wanted to go into the legal space,

but I start this journey with the fact

that I was fired from a job and I like to start there

because especially for young people,

those sorts of things that happen are and seem

and actually are very overwhelming when they happen.

And when I got fired from this job,

I was at a traditional civil rights firm

and it was very unexpected to me.

It was out of the blue. I was like, oh my God.

I had two little kids.

My husband and I had just bought a house.

Like, oh my God, now what?

And I very luckily ended up taking a four-month position

at Disability Rights Education and Defense Fund.

And I'm in Berkeley,

birthplace of the independent living movement,

and I'm embarrassed to say

I didn't know anything about disability rights.

Certainly didn't know anything about digital accessibility.

It was 1992.

But I ended up at DREDF

and while I was there for those four months,

that turned into, first of all, they turned into four years,

I was filling in for someone

and that person didn't come back

and so I stayed for four years, and during that time,

blind people approached DREDF

because they couldn't use ATMs.

And they approached DREDF and also private law firm

with my colleague, Linda Dardarian, who now runs that firm.

At the time, we were both young.

And that's kind of how it started.

The blind people who came to us were so knowledgeable

about not just how to make ATMs accessible

and what they needed, which was talking ATMs,

which we now have,

but they were all people willing to work in collaboration.

It's just kind of random. We could have filed the lawsuit.

And we said, well,

there weren't any talking ATMs anywhere in the world.

The Americans with Disabilities Act

was three or four years old when we started

and we didn't wanna screw it up for a whole generation

trying to get this technology thing going.

And so it was this amazing group

of blind advocates and activists

that came together with the lawyers from DREDF

and the private law firm.

And we approached the banks

and they said they would talk to us

and we worked on talking ATMs and at the end of that,

in around 1998, one of the blind clients came to us

and said, okay, good job, talking ATMs,

but there's this thing called online banking.

We better make sure that's accessible.

That conversation is really the seed of all my work

in digital accessibility.

- Well, I wanted to dig a little bit more into

where they are that point in time

because people I've talked to on this series,

a lot of people first became familiar with it

as software developers

or designers within organizations for web services.

Others first became exposed through academia

with that being the support area.

And I don't think I've talked with anybody

that specifically got in at that advocacy level early on.

And so maybe talk a little bit more

about what the atmosphere was at that time

because were you in the Bay Area at that time

and did you have connections with people

in other parts of the country?

- Yes.

The DREDF was headquartered,

is still headquartered in Berkeley, California,

the Disability Rights Education Defense Fund,

and that's where I've lived all this time.

So the initial group of blind people we work with

were from mostly California

and we also worked with the California Council of the Blind.

And at the time, the banks were just becoming national.

We had Wells Fargo, Bank of America, and Citibank

who we approached with the letter and said,

would you like to work with us on ATMs

that work for blind people?

And so we were focused on that.

It took a good four years to get those first agreements

and during those four years,

we really saw the power of collaboration

and what became structured negotiation.

It wasn't structured negotiation then

because we didn't have a name

because we didn't know we had a thing.

We were just trying to work out a problem.

But the relationship between the banking people

and the blind community that was involved,

we went to ATM labs all over the state

and blind people gave their input and gave their experience.

And the light bulbs would just go off

in these bankers' heads,

like, oh, we never thought about that.

And sad to say, not with ATMs,

but with many other kinds of technologies,

that's still true today.

When people are approached with a open hand

instead of the closed fist of litigation,

I find that there's a lot of openness to,

oh, we didn't really realize it.

We didn't understand

how blind people could do this or do this.

So we started in California

and then we had the first agreement in 1999.

Wells Fargo made the first commitment to talking ATMs.

Citibank followed soon after

with the first, I think, talking ATMs in New York.

Bank of America became the first

with the biggest nationwide commitment.

And for those first couple years,

we were always talking about the first,

the first talking ATMs in Spanish,

the first talking ATMs in this state or that state.

And this was before really websites and internet

and all the connections we have now,

but the blind community was very active and very together

and we started getting calls from different states.

"Oh, we want talking ATMs here. Can you help us?"

A lot of the banks we worked with at the time

have subsequently been purchased by B of A or Wells Fargo,

but at that time, there were a lot more smaller banks

and we worked with blind advocates all over the country

on this issue.

And right from the beginning, after California,

we always included the banking website on top of the ATMs.

One of the earliest ones, we worked in Chicago in Illinois

with an advocate named Kelly Pierce

and he used to have an email list that like every person,

I think every blind person in the country was on it

and we didn't have any regulations at the time

and Kelly's advocacy in bringing the community together

to help us get regulations, so it just kind of snowballed.

And then people, it's my view that most people

would rather not file a lawsuit

to get something accomplished,

whether you're disabled or not.

And I think we hit a chord in the blind community,

both with the achievements

in terms of the actual technology advancements

and also with the process.

And so we worked on accessible pedestrian signals.

We worked on major league baseball websites.

We worked on talking prescription labels

all in this collaborative way.

And yeah, there's still a lot to do.

- Well, that's another, I think, thing I wanna key in on,

on the background you're talking about.

So you mentioned where ATMs

was one of that first important areas that required support.

I guess that's something you could consider,

a combination of digital and physical accessibility issues.

But I mean, I think you mentioned late '90s

when you first started talking with Wells Fargo,

but essentially, digital consumption of services

obviously has exploded since then

where it's a critical part of everyone's lives.

And so I imagine the scale and magnitude

of the things that you're having to work with and consider

has increased quite a lot over the past few years.

- Yes, and I'm happy to say

there's more lawyers in the space doing the work.

When I started out,

we had the very first web accessibility agreement

in the country

between California Council of the Blind and Bank of America.

And shortly thereafter, the National Federation of the Blind

started doing agreements.

And so early on that I was working with the ACB

and its affiliates and the Brown Goldstein & Levy firm,

which is still very involved in this work

and does great work.

They were working with NFB. They still do.

So, yeah, there's a ton more things,

but there's also, there's more companies and leadership,

global organizations who get it,

who we can point to companies like Microsoft and Google

and Yahoo and companies are now seeing the value

of the disability, not just the disability market,

but the digital inclusion values.

And I think I've never seen in all my years

anything like what we're seeing now

in terms of accessibility jobs

and big companies and global marketing efforts.

Procter & Gamble has a wonderful head of accessibility

in London named Sumaira Latif

and she's doing amazing work with their advertising,

including audio description.

And Google did a national ad.

I forgot if it was Super Bowl.

I think Microsoft's accessible gaming console,

they did as a Super Bowl ad.

Google did, I think it was the Oscars.

Google did a great ad featuring their captioning

on the Oscars.

Unheard of back when I started.

And I think that's really helping.

I mean, of course, it's a long way to go

and I don't wanna be seen as someone

who thinks everything's rosy, 'cause everything isn't,

but certainly significant progress has come about

since we first started.

- Well, you mentioned your work with structured negotiation.

Maybe could you talk a little bit about that,

how that plays out as a process?

- Yeah, so like I said, when we started with the banks,

we didn't file a lawsuit for various reasons.

And over the years, we've kind of refined what it means

to work in collaboration and how does it happen?

And I wrote my book in 2016.

It's called

A Winning Alternative to Lawsuits."

I just put out the second edition in October of last year

and writing a book kind of forced me to look at,

well, what is it that we do

that allowed companies like Anthem and Walmart

and cities like the city of San Francisco

to work with us without a lawsuit?

And really, so much of it is the mindset.

I call it the structured negotiation mindset.

I call it dolphin skills to emphasize

you don't have to be a shark,

basic communications, understanding that things take time

in a large organization.

There's a lot of lawyers in this space now

that use the ADA in ways I consider unethical

and one of the hallmarks of that kind of work

is a demand letter to a gigantic company,

you know, give us this money,

fix this thing in the next two weeks,

or else we're gonna sue you.

Well, those of us in accessibility,

including you and everyone you've interviewed,

know that nothing happens in two weeks.

I'm not saying it shouldn't, but it can't.

And what we're going for is real baked-in accessibility

and that depends on companies

knowing people with disabilities.

And this is a process that is open in the legal system

for companies to get to know their disabled customers.

We've worked, did an agreement with Charles Schwab.

They were a great negotiating partner

on behalf of a blind woman who was an options trader.

Well, their developers and trainers,

they never thought, oh, their options trading site

needed to work for a blind person,

but because we weren't fighting

and we could get everyone in a room

and they could meet this blind person,

it was like, oh, yeah, people wanna do the right thing.

I mean, I kind of believe that, and this is a process

that gives people the opportunity for it.

So in the book, I go through all the elements,

like how do you write a letter that says is a legal problem,

but also invites cooperation?

How do you bring in expertise

in a way that really helps all the parties?

How do you have a meeting?

How do you write language

so people don't get defensive and narrow?

Because we want accessibility to be innovative and creative.

And so it's a process that has worked.

I'm very careful to say it's not a process for every case

and each lawyer and client has to decide,

but it's a process that is definitely a tool in the toolkit

for our digital accessibility in the United States.

- Well, in my observations,

certainly not from a legal framework,

but when I read into articles

about where there have been lawsuits involved,

it generally to me seems like places where there's just

an egregious lack of attention to the area,

whereas organizations that understand that it's iterative

and are transparent about working to move forward,

I think they rarely end up in a legal problem

when you can see that the efforts are being made

to make their products and services more accessible.

- You know, I would've said that was true four years ago.

I would've said absolutely, that was true.

I think there is a different type of lawyer in the space now

and people can get a lawsuit even if they are trying,

not to say they don't have problems,

but not every lawyer is willing to find out.

Are there people working on it? Are there problems?

So one of my sort of, I don't know, goal, message, passion

is if you get one of those lawsuits,

let's not let bad actors define good behavior.

You know what I mean?

So, yeah, you might get a lawsuit.

I've talked to many small organizations have gotten lawsuits

as they tell me, we're trying, we did this,

we had these few problems.

Why did we get a lawsuit?

And I don't do that kind of work, helping those companies.

But I always say like, okay,

in some ways, it's a cost of doing business.

In some ways, you can use it as an opportunity to do better.

Some people get those types of lawsuits

and they haven't done nothing.

They haven't done anything.

One of the concerns I have about those types of lawsuits

is I know what it's like to stick with a company

till they get it right.

And if you're sending a hundred demand letters a week

and saying fix this, it doesn't get fixed.

So there's different views about different strategies,

but it's really important to remember

that there are ethical lawyers doing ethical work,

filing ethical lawsuits.

And if you happen to get hit by something

that you don't think is fair,

don't let it influence your commitment

to doing the right thing.

- Well, yeah.

Well, it's good to learn about that development

in this area.

And so if an organization ends up in that situation,

it sounds like in some way they'd need to have

some type of representation to be able to protect themselves

as they determine what the right course of action is.

- Yes.

If you get a lawsuit in the United States,

it's very wise to hire a lawyer.

I mean, you don't have to. You can try to do it yourself.

But another sort of concern I have

that wasn't in the space when I started

is the use of web accessibility overlays

and these are one line of code pieces of software

where the companies often claim, oh,

just install this one line of code for monthly license fee

and we'll give you ADA protection.

So I've written a lot about that.

If any of your listeners are new to this issue,

going to the overlayfactsheet.com

is where you can get tons of resources on this.

And I tie it in.

It's sort of part of the ecosystem right now.

They're very heavily venture funded.

So we have to keep the eye on the prize

of true baked-in accessibility

with disabled people front and center

and not let these developments distract us from the mission.

- Well, I know I'm always suspicious

when I hear claims of providing certification

because we don't really have an authority body

in the United States or in other parts of the world

that say that something,

there's not a legal framework for that.

We have VPAT and the ability to transparently talk about

what we've done to support that.

But I know a lot of organizations,

when they're looking for accessibility support,

a lot of times they're looking for

some official, quote, unquote official certification

and indemnification, and that's not really out there,

as far as I understand.

- Yeah, there isn't one.

And another thing people have to understand,

and like the people who have been part of your series

obviously do, accessibility is not one and done.

And this is why I'm so public about the overlays

or the unethical lawyers, because accessibility,

every time you issue a release

can be improved or can be broken.

And so without a real baked-in accessibility program

that covers all aspects of the organization,

what you purchase, procurement and communications,

and every single thing,

if you don't have that, people are gonna be excluded.

And that's why I do the public speaking

is because accessibility is a civil right

of people with disabilities.

And no matter what your role is,

whether you're a developer or a designer or communicator

or content writer,

that means kind of a civil rights enforcer.

And if I think thinking about it that way,

we have to do the hard individual work,

but we're also part of a bigger picture of enforcing rights.

And to me, it's all about inclusion or exclusion

and every decision point has that option.

You're gonna include, we're gonna exclude.

So that's kind of why I think I became this bridge

to communicating about this because too often,

the legal space feels complicated and bogged down

or you hear about,

oh, $10 million lawsuit against this company.

The next thing you know,

it's settled for you don't know what.

So I think looking at the law as a civil right

can help all of us advance our common goals here.

- And looking into the future,

there's always opportunities that are on the horizon.

There's also challenges that we have to be concerned about.

You mentioned some of the challenges

about predatory lawsuits

and what seem like simple software solutions.

Are there any other challenges that you see moving forward

or on the other side, things where you see opportunities

for things to go in a positive direction?

- Well, you hit my two biggest worries,

which are the overlay companies

and the serial lawsuit filers.

I do think COVID, for all its terribleness,

does give us an opportunity

to keep the focus on the need for accessibility,

because things are never gonna go back, I don't think,

to 100% in-person and people have learned the importance

of accessible digital spaces, especially in healthcare.

The US Department of Justice now is doing a lot of good work

and making sure that vaccine portals and testing portals

are accessible.

So I think there is a heightened awareness

and I think that will continue.

And with the large companies and with the advocates

and the global nature of accessibility is very strong.

When we first started with the talking ATMs,

we would talk to people in other countries, well,

you use NCR, they built a talking ATM here in the US.

They can have it over there.

So I think the bringing together the global community

and the heightened awareness

around the importance of accessibility

will hopefully continue to grow this amazing community

and movement that we have.

- Well, I look forward to that future as well.

And Lainey, thanks so much for taking the time

to chat with me about your experiences and your background

and how you got to where you are today

and hopefully I will be able to see you at some point

in the future at a in-person event,

but otherwise we'll continue on this way.

- Great. Well, thanks for having me.