During a recent presentation about the digital accessibility legal space I was asked a question. It was about a word that pops up with increasing frequency as fear of lawsuits drives too much of the digital accessibility world. The “C” word — compliance.
The question was this:
If the captions on online videos are 65% accurate do you think that would comply with legal responsibilities?audience question
This is the kind of question that arises when people are driven by fear. When people forget what accessibility is about. Even forget what the law is about.
The question was both easy and hard to answer. Easy when you remember the first principle of digital accessibility is that it’s about people. Hard because it was the wrong question.
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Effective Communication is a Cornerstone of the Digital Accessibility Legal Foundation
The law is involved in digital accessibility because participation in the public and private sector (including education, finance, healthcare, commerce, etc.) is a civil right of disabled people.
For people with disabilities in the United States, the Americans with Disabilities Act recognizes that full participation requires “effective communication” with disabled people, including those who have vision, hearing, or speech disabilities.
In the digital age, effective communication means accessible digital content.
As the U.S. Department of Justice wrote in a technical assistance document titled “Effective Communication”
The ADA requires that title II entities (State and local governments) and title III entities (businesses and nonprofit organizations that serve the public) communicate effectively with people who have communication disabilities. The goal is to ensure that communication with people with these disabilities is equally effective as communication with people without disabilities. U.S. Department of Justice document (2014)
This guidance is designed to help organizations meet the requirements of the ADA Effective Communication regulations, which are based on the ADA’s recognition that full inclusion is not possible without effective communication.
Internationally, the Convention on the Rights of Persons with Disabilities (UNCRPD) also recognizes communication as a key aspect of disability inclusion:
To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas. Article 9, UNCRPD
Is communicating 65% of content equally effective as communicating 100%?
Nothing that I say in my talks and trainings, and nothing I write for this website or other publications, is to be considered legal advice. Yet I feel quite certain that offering 65% of content to a deaf or hard of hearing person is not ‘equally effective’ as providing 100% of content to a person who can hear.
65% leaves a very big hole
Imagine a video assigned by a professor explaining a complex chemistry problem to college students. Now imagine the speaker mumbling through or even skipping 35% of her words. Would a student listening to the video be faulted for complaining to the professor about video quality? How would that student do on the next exam, having received only 65% of the content?
Poor captioning quality delivers less than 100% content to the person watching the video — be it a chem lab, employment training video, or pure entertainment. Remembering that person answers the question of whether 65% accuracy is “compliant.”
On the second page of my book, I have a general paragraph about Structured Negotiation. Here’s what 65% of it looks like:
Structured has a track. Over the past years the process has led more than with some of the organizations United. Bank of, Walmart, Charles, CVS, League, Inc., and Watchers are private that traded the stress, procedural of for Negotiation. Settlements the City County San, Transit, the City of, the American, and Massachusetts General demonstrate process is a for disputes with nonprofit and sector agencies, as well as with private companies.65% of a paragraph on page 2 of Structured Negotiation, A Winning Alternative to Lawsuits
Does that effectively communicate the actual content? As the author, I’m sure it does not. Here is the 100% paragraph so you can decide for yourself:
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Structured Negotiation has a powerful track record. Over the past 20 years the process has led to more than 60 settlement agreements with some of thelargest organizations in the United States. Bank of America, Walmart, Charles Schwab, CVS, Major League Baseball, Denny’s, Anthem, Inc., and Weight Watchers are just a few of the private entities that have traded the stress, cost, and procedural wrangling of litigation for Structured Negotiation. Settlements with the City and County of San Francisco, Houston’s Metropolitan Transit Authority, the City of Denver, the American Cancer Society, and Massachusetts General Hospital demonstrate that the process is a viable litigation alternative for disputes with nonprofit and public sector agencies, as well as with private companies.100% of a paragraph on page 2 of Structured Negotiation, A Winning Alternative to Lawsuits
Don’t Ask the Wrong Question
A focus on compliance driven by a fear of lawsuits can lead to the wrong question, as it did with the audience member asking about 65% poor captioning quality. Of course organizations should and must comply with the Americans with Disabilities Act and all other federal, state, and local laws designed to support the full participation of disabled people.
But asking the right questions, driven by a desire for inclusion and equality, leads to compliance without the fear and restriction inherent in my questioner’s inquiry.
What are the right questions to ensure a digital world that works for everyone? They will be unique to each organization, but today, on the 28th anniversary of the Americans with Disabilities Act, here are some to consider:
- Does my organization have disabled employees, work with contractors with disabilities, consider disability in all diversity programs? Having a deaf co-worker makes it far less likely someone will wonder whether 65% caption accuracy is a good idea. Or even a question worth asking.
- Does my organization do usability testing with disabled people? Structured Negotiation has been successful because organizations and people with disabilities can meet, form relationships, and give honest feedback about what works and what doesn’t. A robust usability testing program that includes people with disabilities is likely to render a 65% captioning question obsolete.
- Does my organization foster a culture of accessibility that is transparent and robust? More and more organizations do; we can all learn from them.
- Does my organization have an accessibility policy that is known throughout the organization? Is it a core element of all technology purchases? A video player with controls that don’t work for blind users is less likely to be purchased when accessibility is a contract requirement. Read more about technology vendor contracts and accessibility.
- Is everyone (yes everyone) in my organization trained at an appropriate level about accessibility? Does customer service know how to handle and escalate calls about access barriers? Are coders trained in best practices for meeting WCAG 2.1?
- Is accessibility a job requirement for designers and developers? Do job evaluations include looking at accessibility performance?
These questions are a riff on a presentation I did last year with Microsoft’s Sue Boyd titled “Recipe for Staying Ahead of the Legal Curve: Bake Accessibility into Your Organization.” I’m continually impressed by Microsoft’s leadership in this space and encourage organizations large and small to follow the company’s accessibility work to discover even more questions to keep your organization focused on true digital inclusion.
Answer these questions in the affirmative, and check against all legal requirements. Compliance won’t be Question 1, but I’d bet no one will be wondering whether 65% caption accuracy is a good idea — legal or otherwise!
I’m writing this post on the 28th anniversary of the Americans with Disabilities Act. Congratulations to disability advocates for not only getting this law passed almost three decades ago, but for doing the hard work every day to keep it alive. It is a sweeping civil rights law about participation and inclusion. Those things are not possible in 2018 without digital accessibility.