Key Takeaways
- DOJ's final rule on web accessibility sets WCAG 2.1 AA as the standard, effective in 2 years
- Municipalities and public entities should start accessibility compliance efforts immediately to mitigate legal risks
- Remote work has created opportunities for people with disabilities, but return-to-office policies pose new challenges
- AI has potential benefits for accessibility but also risks of discrimination if not properly implemented
Today I’m talking to Eve Hill, Partner at Brown, Goldstein & Levy LLP. Eve is one of the nation's leading disability rights attorneys. She's a former Department of Justice Deputy Assistant Prosecutor and a current partner at Brown, Goldstein, and Levy, where she pursues her devotion to civil rights.
Eve - Can you trace the moment you decided to become a civil rights attorney?
It was really in law school. I was doing a a lot of work around women and the law actually and I decided that I wanted to be a civil rights lawyer, but I didn't know what kind of civil rights lawyer I wanted to be.
I had lots of student loans to pay off. So I originally went to a law firm that did natural gas contract litigation. It was a very good law firm and I learned a lot about litigation. In my spare time, I became a mediator and I took one of the very first trainings for lawyers under the ADA on how to implement the ADA.
So when the Justice Department started advertising to build up its ADA enforcement unit and it wanted to have someone develop its ADA mediation program, I was qualified and that's when I decided become a disability rights lawyer. I didn't know at the time that I had my own disability. I had not been diagnosed. So I was just doing it because it seemed like such a clear, obvious requirement that people with disabilities should have equal access to everything. I just thought it was an exciting way to spend my career. And it's been great.
What were some of the barriers that you had to overcome to kind of get to where you are today as a partner at a prestigious law firm that does civil rights work?
A lot of the barriers were internal. I wasn't sure that I could do whatever the next thing was that I was going to do. So I was always worried that I was going to fail. But I I really value bravery. I tried to be brave and overcome those fears.
The other barrier was probably low expectations. People didn't expect all that much of me. So so I tried to make sure I set my own bar higher.
How did how did you keep yourself moving?
My mantra is even if you’re afraid, do it anyway. Recognize, acknowledge the fear and do it anyway. Act as if you aren't afraid. And that has been remarkably successful for me. I've done lots of scary things. And they've all turned out fine. And you just have to power through.
Do you recall one of those scary things you overcame?
Well, I testified before Congress a couple of times, and that's very intimidating. And then it turned out that I knew more about the subject matter than anybody else in that room. And that really lets you do a good job. So in addition to doing things that I fear anyway, I try and do them really well prepared.
Shat have you learned in the last five years that would surprise your former self?
I'm constantly learning, and the things that would surprise my former self are the number of things that I really could do and really could succeed at. Then the other things that are more frustrating about being in the court system these days, where delay really is the denial of justice.
I've learned so much lately that I must push harder and harder to get the courts to because they're inherently very slow and people cannot wait for their civil rights to be enforced.
I would tell my former self to keep pushing. You got really got to push it all the way.
Have you learned something along the way that has helped you accelerate the courts?
When something starts to be ridiculously long time before something is ruled on, we do start to nag a little bit. That's something I don’t like in particular, but you have to do it. It's an obligation to your clients to get the case moving, not just to eventually win it, but to win it in a way that actually solves the problem.
Pivoting back to the topic of accessibility - the DOJ produced the final rule on web accessibility on April 8th. How does the DOJ generally decidewhat happens next? This final rule is out there. What does this mean for the world?
It means that there's a standard now that entities have to follow. There's always been a standard, but it wasn't formally adopted into regulations.
So they've always had the obligation to ensure equally effective communication with people with disabilities. But now the DOJ has made clear that that means the web content accessibility guidelines, 2.1 level AA. That standard will kick into effect in two years, and that means people, entities, really have to get their act together because they've been skirting the law, to put it gently, until now and often getting caught.
The DOJ has been enforcing the equally effective communication mandate throughout and I assume that they'll continue to do that even during this interim period but certainly when the rule goes into effect in two years there will be more complaints about state and local government, university colleges and hospitals and so forth that are not complying with their obligations and they'll be a bunch more awareness on both sides among cover entities and among people with disabilities and so that'll lead to more complaints.
The DOJ will have to figure out how to prioritize and I'm not sure what its priorities are but they do generally try to take cases that make an impact and set a standard that others can then follow that they try to use their enforcement actions to be educational. Also to take on the entities that are really resistant to compliance.
The DOJ generally, always in my experience, tries to resolve things without litigation first. The ones that get into litigation or consent decrees are really the ones who've been resistant to compliance in a negotiated way.
The other thing the DOJ does is project civic access, which actually provides basically technical assistance entities, but they result in an agreement where the entity agrees to comply. And they've been doing those with state and local governments all along. And I imagine that the web aspects of those settlement agreements will continue and probably even expand.
They'll be very busy!
What do those settlement agreements typically look like? What would it mean for a municipal government to be flagged by the DOJ?
There'll be a back and forth. It'll be the end result is that the entity will have to become compliant with the Web Content Accessibility Guidelines 2.1 level AA, but the negotiation will be over timing and over what things might be an undue burden or fundamental alteration to make accessible.
So there'll be negotiation about that. The DOJ unfortunately can't reverse time, but once this regulation becomes effective, the deadlines are probably going to be very short in the settlement agreements to get things put in place because this obligation already existed. They've had two years to prepare for implementing this particular standard. There's really no excuse for not having done it.
So the timelines will be where the negotiation happens and where DOJ will really have some leverage.
What risk does municipality take on? It might get its hands slapped, but what do the teeth look like?
Well, the teeth look like the timing. Making them come into compliance very quickly. And that often involves a cost. If you make your websites and other technologies accessible from the beginning, it costs nothing and takes no extra time. It's truly rather simple.
But if you have to go back and remediate a bunch of stuff, that takes time and money and resources. So they'll have quick timelines to get things done and that will cost them in terms of experts and staff and other resources. But in addition, the Justice Department has the ability to get damages for people who are injured by the lack of accessibility and civil penalties. So when an entity has been recalcitrant, it's likely to get charged with a civil penalty, which is a fee basically paid to the government. And those can really add up.
You mentioned before that the DOJ will have a lot of complaints to deal with because the visibility will rise. And the DOJ will have to make some prioritization decisions. In your experience, it seems like some of these priorities are going to involve who gets taken the court? How do they figure out where to where to prioritize at any given moment?
I really don't have insight into that under the current administration. So I don't know that. All I know is that they try to have their cases make as big a ripple effect as possible and to get to really address things that are significant in people's lives. So I think they try to prioritize using their resources in those ways.
What advice would you give to a general counsel for a municipal government or a public institution to help them navigate this rule?
Get started right now. You may not even have two years, but at the most you've got two years to get this problem fixed. And most of them have not been paying attention to it. So there's a lot of inaccessibility on their websites and in their other technologies.
They need to get an expert consultant in to do it. Usually you can't, if you've got a big remediation backlog, you're probably not going to be able to do it all in house. So you need some experts to come in and help to help identify what the priorities are, what the biggest barriers are, how significant they are, how important they are to the use of the website, and then get busy remediating on a priority basis, publicize your plan because people need to know that you know that your stuff is not accessible and that you're working on it.
The only way to get out of these obligations is to be able to prove that doing more than you're doing would be an undue burden. And that's in light of all the resources that are available to the entity. So it's a very high standard. So you've really got to get moving and move fast on getting the accessibility taken care of.
Also having a plan and publicizing the plan encourages patience among people with disabilities. They know that they can't reverse time either. And so they're more likely to not sue you. If you're, if you can demonstrate that you're really working on it and you're working on it as fast as possible. So sticking your head in the sand is really a bad approach.
When folks inside of organizations are trading off risk, like how should they think about that risk?
They need to think of this as serious a risk as security and privacy. You deal with those upfront.
You don't put things out in the world and then say, oh, maybe I'll work on security and privacy later.
You need to work on these things upfront. It'll save you money in the long term. It'll save you from getting brought into court, paying damages, paying the other side's attorney's fees.
There are a lot of monetary risks in addition to good will, you're losing good will every time a person with a disability or their friend or their family member tries to use your website and can't and that is and that is a major community, people with disabilities and their friends and colleagues that you're losing the business up.
You were a director of the Office of Disability Rights for the District of Columbia. Imagine you were in a situation where you were aware of this new legislation. What techniques would you use to get influence and resources to address this?
I would go to the IT department and both use the threat of the lawsuits and I would also go to the mayor who in my case was very supportive and talk about the threat of a lawsuit and how we needed to get these things going really quickly.
But I would also talk to them about providing resources for it and about the fact that accessibility is hand in hand with creativity. Let's take it as a challenge to do something really cool and let's measure it. Let's keep on top of it so we all know that we're making progress and that creates this virtuous feedback loop of making changes that actually improve things for people and being able to account for those changes and measure those changes. That makes it a very satisfying project when you take it on and it also creates some interesting development things that you get to figure out and be inventive about, and people need that.
You mentioned that you talked to folks when you were in that role. What were the key levers that you would pull to unlock resources?
The threat of litigation and the expense that that would cause the need for, to be inventive and creative and be a leader.
The mayor I worked for, Mayor Fenty, was interested in having the district be a leader in all things, including disability accessibility. And so I talked about prioritizing this because it was required by the law. But also because it was the right thing to do because it would fit with the mayor's desire to be inclusive and make sure that everybody had access to their government.
And also with the IT folks as a method of really highlighting their work and the creativity and inventiveness that they brought to it. So I've tried to have both carrots and sticks.
I would talk to them about the risks and the costs of the risk and compare those to the costs of trying of becoming compliant and really lay out how building accessibility in from the beginning was really going to avoid a lot of problems at the end and avoid litigation and liability.
We put it on the balance: the resources that we were going to need to do the work against the risk of litigation and the fact that we had lots of disability advocates who were not going to let us just get away with anything. Those are the kinds of things we would talk about. But then we would also talk about the fact that we want to be a leading community.
We want to be a good in good government. We want to be problem solvers. And so those are the other things that I would talk to them about.
Have you found yourself in a situation where you've convinced someone of that being the right way forward?
I do in my consulting work. I don't only do litigation. I also consult with entities on compliance. Many of them come to me and say, how do I sell this to my leadership? And it wouldn't just be about risk. It would also be about being a good neighbor, being a good company, being a good community, doing government well.
We would also talk about all those things and people were very open to being a good government. Nobody went into these roles in order to be a bad government. It was always just a matter of whether the good government need was sufficient to overcome the resource investment.
And most of the time it really was because you could do fairly simple things to stop digging your inaccessibility hole to prevent new stuff from becoming inaccessible. And then you would devote resources on a priority basis to the things that were already inaccessible. And being open to your entire community is another thing that people found very persuasive.
Who generally leads these initiatives once it moves from a conversation to taking action?
It really varies. In some places, it's the IT department that really leads it. In some places, it's customer service. In some places, it's the ADA coordinator. In some places, it's someone in the mayor's office. So it can really, it really varies depending on where it best fits. It's really important to have CEO or mayoral or city council or county board executive buy in and commitment to it and they have to be talking about it and checking in and getting reports and monitoring the progress so it's really important that that happened.
But then you need a worker who's actually going to get the stuff done. Maybe not do it themselves because they'll have experts and other staff but get the stuff done. You should submit the reports, keep track of progress, resolve barriers, and that person has to have both the resources and the authority to get the work done. They need to be able to stop inaccessible content from being posted. They need to be able to hold other people accountable in, for example, their performance evaluations for including accessibility. They need to be able to report to the higher ups and get action when they need resources. sources or when they need someone held accountable.
Those are all the things that decide who in any different government entity should be responsible for it, but it's different in every entity.
Do you think there are some situations that make it like more successful in some situations to make it less successful in terms of where it lives?
No, what matters is whether that person has the resources, the expertise and the and the ability to hold people accountable that this will decide where it belongs. It's very important though that it have high-leveled buy-in and attention. So not just to say here's a policy but to say and I'm checking and I'm getting reports on our progress and when a unit doesn't make progress I'm going to hold them accountable for it.
I think that's really important. So the two pieces, the worker who has responsibility, resources, and authority, and the executive, high-level executive, who's checking and talking the talk and making sure that things get done.
When you're having those conversations with those high-level executives and you're trying to get buy-in, do you have concrete examples of good government that you try to inspire them with?
I don't go around naming names, but I talk about examples of how people have prioritized things, and I know from these examples where the keys are that the chief executive involvement is really important, that authority and responsibility is really important, those kinds of things.
What about in terms of examples for the end user, like a disabled individual that currently something happens, but in good government world, this should happen instead or examples like that?
Yeah, then I point to lawsuits where bad things have happened to people and how significant those bad things can be. So we look a lot at education, we look a lot at health care, all of which can be examples of good government or not so good government. And when it's not so good, it's really impactful on the end user, on the person with a disability, it really affects their lives in a negative way.
Who wants to be the person who does that to someone when you could so easily have stopped it? Not to mention, there are a couple of cases that that are good examples. The Los Angeles Community College District case for example, which my firm is involved in, where the it's been tried twice now. Two blind students sought access. were not getting accessible materials. They weren't getting accessible databases in the library. The platforms were not accessible that they were using for their education and talked about the impact, I talked about both the impact on them individually and the litigation impact, which is that the LACCD has been found liable twice now and the jury ordered the payment of over $200,000 in damages.
We're going to see we're on appeal now, but also the college district was required to make its stuff accessible on a really short timeline. And those are the things that can happen if you let accessibility get away from you and don't take it seriously. You can end up in a year's long, very expensive in terms of lawyers, fight that gets you paying damages, ruining people's lives, and having to do things on a very quick turnaround. You lose all good.
What are the most pressing challenges that people with disabilities face in the workforce today?
Well, the most pressing challenge is attitudinal. The attitude that people with disabilities shouldn't work, can't work, should have really low expectations for their jobs and careers is still very pervasive.
It's gotten better, but it's still very pervasive. And there's still this fear that accommodations or having a person with a disability working for me is going to be a problem or it’s going to be expensive. All of which is not true, but there's still this worry out there that too often makes itself heard in the employment hiring context and means people don't get hired.
And then I think some of the big issues that I'm dealing with at least are the lack of accessible technology in the employment space. Lots and lots of employers are using inaccessible technology and they're either then not hiring people with disabilities because they're afraid the technology won't be usable or they're hiring people and then those people are not able to do their jobs or not able to do them at the level that they should that they could if the stuff worked.
And the finding, finding workarounds is hard and time consuming and expensive. But the employers just didn't pay any attention to accessibility when they decided to use these technologies and there generally are alternatives or ways you can push back against the vendors to make them more accessible and employers just haven't paying attention to it.
It's really excluding or keeping down the success and the performance of people with disabilities across the country.
In my own experience, a lot of these cases are now working their way through the EEOC process, and so they'll be more public soon. And hopefully that will raise awareness among employers that they've got to pay attention to this when they decide what technology to use.
How has the employment landscape changed for individuals with disability in their recent years, especially post-COVID and the technological advancements that have allowed remote work?
I think it's helped a lot, actually. COVID really showed us that you can do more jobs remotely than we thought. And that has been very important for people with disabilities, a whole range of disabilities, including the disabilities that make it hard to get to a workplace because of the lack of accessible transportation or the lack of transportation at all.
That's really made a difference. And more and more people with disabilities who had been seeking remote work before the pandemic are now able to get remote work and really do good jobs. That’s been largely a good thing, weirdly. But now we're starting to have a backlash where companies are requiring their employees to come into work now. And that is now being used against people with disabilities who for whatever reason can't come into work often. Maybe because of immunocompromises or because of the lack of accessible transportation or because of the lack of accessible facilities and accessible technology and all the other things that that are going on in employment space.
So for a long time we saw remote work as an accommodation a lot. Now it’s more common but they are now requiring people to come in and we have to seek complete remote work as an accommodation. So we are seeing some more shifting around when you can be remote and when you have to come in and how that affects people with disabilities.
Have there been any cases or precedents for using the return to office as an opportunity to seek accommodation?
I don't know of any cases right off the top of my head. I know that there have been claims filed with the EEOC, and the EEOC understands that fully remote work can be in accommodation, so I think those cases are still playing out. But anything would be in accommodation, so including any modification of a policy can be in accommodation, so requiring people to work has to be modified if it's necessary for the person with a disability to do the essential functions of their jobs.
I think where the legal issue will play out is whether commuting is part of the essential functions. Sometimes for people with disabilities, the reason they can't come into work is because of the lack of transportation, the lack of accessible transportation, and the question for the courts will be whether accommodating the lack of transportation is a reasonable accommodation under the law, and I don't think that's been established, although I certainly think it is.
What advice would you have for someone who has lost their job or faced push back from their employer because they can’t come back to working in the office?
I would say the first step is to try and negotiate with the employer. Often the employers will understand that you need modifications either in the form of additional COVID protections or in the form of remote work.
If that if they don't hear that, I think you have to go to the EOC first. That's always the first step in an employment complaint. And the EOC does understand, I think that remote work can be a reasonable accommodation. And so we see how it goes in the EOC.
After that, you can take it to court and we'll see how those cases play out in the courts.
What do EOC damages typically look like?
They're smaller than I would like, but they do seek damages and get damages based on the harm that you've experienced, both the out-of-pocket harms in terms of back pay and front pay.
And the emotional harms that discrimination causes to people are all within the gambit of damages for equal employment violations in addition to the attorney sees of your of your attorney.
But they, and how long those cases typically take. The EOC, well, you can get a right to sue letter after six months of the EOC investigating.
And then the cases take as long as the courts take it's, as I said at the beginning, the courts are very slow these days, and so where it takes it can take a long time.
I advise my clients often that they need to move on with their lives as much as they can, and this will be something that gets resolved eventually, but it's unlikely to be quick unless we can reach a resolution in settlement discussions.
Some folks say that accessibility slows down innovation. What do you say to those people?
I say accessibility is innovation. And it's just as important to your innovation as security and privacy. Like I said before, you don't roll things out that are insecure or that affect people's privacy and then get around to fixing it later.
You similarly can't do that with accessibility. Figure it out at the beginning. It's not rocket science. It can be creative and interesting, but figure it out at the beginning and incorporate it.
then you'll have market share and it shouldn't slow you down.
How do you think about the impact of AI in creating a more inclusive and productive future?
AI is helping us already a lot and it can be tremendously helpful to people with disabilities.
It's going to be tremendously helpful already starting with captioning and audio description and remediating inaccessible websites and documents. So it has a lot of potential benefit.
It also has a lot of potential risk. The models on which AI is based largely don't include people with disabilities or don't include them in a substantial enough percentage to change the outcomes. And I'm concerned that AI will screen people with disabilities out, particularly worried about that in the hiring space where it's likely to screen people out of employment without any ability to tell that that's what happened.
It's too much of a black box, so it's very worrisome. And then the AI screening tools are often inaccessible in and of themselves, which leads to another level of screening people out.
So there are both benefits and risks to AI and we have to be on top of both of them. We can't say no AI, we do need it, but we also have to be careful in how we roll it out and we have to insist that it live up to its potential to to prevent discrimination.
What are you most excited about for the future of accessibility?
Well, what I'm really most excited about is the attitude change that's happening in the world. Younger people are now used to having people with disabilities around them, in those schools, in the workforce, in their play areas everywhere.
And I think that those people will go out into the world and look around. And if they don't see people with disabilities will ask, What happened? What are we doing wrong? I think that sort of cultural attitude change is what's going to have the biggest impact.
And I think the law has contributed to that. But I think the visibility and the being out in the world of people with disabilities has been the biggest contributor to that change.
And that change is really what's going to save us.