Transcript for Digital Accessibility Ethics talk

This talk was given at the A11yTo (Accessibility Toronto) Conference in 2019. It was titled Civil Rights Or Shakedowns: Ethics Of The Digital Accessibility Legal Space


Okay, we’re going to talk about digital accessibility ethics, and this is something that’s really been on my mind as I know it has for a lot of people because of things happening in the legal space, things happening in the software space. When Billy said, “You know, you want to do a little thing for the kickoff?” I said, “Yeah, can I talk about digital accessibility ethics?” Little did I know that it’s such a hot topic, ethics and I thought of so many things with the help of this amazing community we have that really impact accessibility and ethics. Dive in, I put up here on the title slide my Twitter, which is @LFLegal, my website, which is

I have a topics, high level navigation link, which has all 350 articles on my website organized by topic and recently, I put up an ethics category because there’s a lot happening in the ethics space. I know this is not a Q and a environment, but I invite you to let me know what you think of this talk, what you think about ethics, what I left out, what I got, right, what’s missing, how can we grow this as a community. This is really intended to just spark conversation. You can tweet it to the conference tweet hashtag, which is A11yWeekTO, A11yWeekTO, or I made up one A11yEthics. Let’s see if it works, A11yEthics. For those of you new in the space, A11y is our shorthand for accessibility for the 11 letters between the A and the Y, which is not that accessible, but okay, so what are ethics?

Dictionary, definitions, moral principles that govern a person’s behavior or the conducting of an activity, a guiding philosophy, the code of good conduct for an individual or group. These are things we need and we have, and we need to be transparent about and talk about in accessibility, comes from the Greek word character and from the Latin word customs. I think this is a definition. These are topics that we should be talking about and ethics and accessibility overlap as I see it in two different ways. I have the Venn diagram here with accessibility and with ethics. The first way is that accessibility is a part of organizational and tech and design ethics.

Organizations are already thinking about these issues, and part of our job is to make people understand that accessibility is part of the ethics everyone is already thinking about. We’ll talk about that a little. Mostly for this talk, I want to talk about what are the ethics of our accessibility practice. Just real quick on the accessibility as part of organizational and tech ethics, I illustrated this with like a dessert table from a big event. People who’ve heard me talk and heard others talk know that in accessibility, we like baking analogies, and this is to represent all the different types of issues that are in ethics of global leaders. If you don’t know about the baking analogies and accessibility, I do have a post that’s called accessibility is delicious, and you can find that on my website.

Some of the baked goods on the ethical serving table already are privacy and security. All organizations are thinking about privacy and security, less so are people thinking about accessibility as an aspect of privacy and security. If you don’t make things independently usable for disabled people, you are breaking the ability of the disabled person to have privacy or security in the feature or the function. Diversity, equity, inclusion, and belonging, these are part of the ethical conversations in the global corporate leaders. Of course, accessibility is inherent in disabled people being able to work in the workforce. Already, accessibility is an aspect of these ethical issues, transparency, global compliance, AI fairness.

These are all things on the ethics table already, ethical design that the code of conduct from the association of computing machinery, which I learned today from MOR10 on Twitter, M-O-R digit 10, who’s doing a talk next week on the ethics of design, which I can recommend to you, even though I haven’t heard it yet. These are all things already on the table and what else? Global markets, the business case, these are things people think of an ethics. I have a picture here of a cat. The cat is looking in the mirror and seeing a lion, and this is something that I use to encourage people with a strategy for advocacy. When we’re advocating for accessibility, which all of us need to do, whatever our role, we have to understand how the organization we’re advocating with, for, how they see themselves.

Many global leaders, do they see themselves as wanting to be ethical, having all these issues I just said, privacy and security, AI fairness, diversity, and inclusion. Part of our job is helping people understand that accessibility is also an aspect of all these things already on the ethics table, but like I said, what I mostly want to talk about today is the ethics of how we do accessibility. This is a picture of cookies. These are actual, real cookies that were baked for talk I did in New Zealand and the idea of the cookies, which have many ingredients, these are delicious with M&Ms and chocolate, coconut is to say that there are many roles that make accessible products and services digital content happen.

There’s many aspects of accessibility, coding, and design and training, and all those things, and I’m going to suggest here that we have to add ethics to the accessibility cookie. I put the bit link for the post on my website if you want to read about what all the ingredients have been. It doesn’t have ethics yet because it came together to share with you today at What I have to share are what I’m calling accessibility ethics touchpoints. I can’t call them red flags beause some of our things don’t do this thing, but others are things think about this thing. How does doing this thing ethically or not ethically?

The idea is to just put ourselves in a framework that when we’re doing accessibility work, whatever our role, I’m a disability rights lawyer, and I do accessibility advocacy through collaboration. I couldn’t really understand Adrian’s talk. I’m sure it was great as I told them in the side chat. I know many of you are coders and do all those roles that are in the accessibility cookies. Whatever the roles are, these are some of the ideas where ethics come into play, so let’s go. The first one, center disabled people, center disabled people. This is what accessibility is about. I put the image of the new Apple icons, not icons, emojis for disability.

They have a hearing aid, a person using a manual chair, person using a power chair, different representations of disability, different races of the people being represented. I wrote down a few things on this. We have to think about people with disabilities in all accessibility creative roles, so that means not just bringing people in at the last minute for testing. That means in all roles; engineers, designers, obviously C-suite is ideal. Everything that touches accessibility, which is every role, professors and ID department.

Think of the ethics when you’re hiring, what is a disability representation that you have in all user roles. Because I think of the lawsuit situation, which we’ll talk about in a minute, it’s like, “Oh, blind people need access when they’re on websites,” and that’s the end of the story. All user roles, the creators, the consumers, the person who’s going to be on the web cam and the person who’s going to be on the webinar, and the person who’s organizing the webinar and marketing the webinar, and sharing screens on the webinars, so all aspects of the work we do in accessibility has to center… I’m suggesting center, disabled people in those roles, reminding us all that accessibility is paid work.

Someone can be disabled in your workforce, and they have a job as a marketer. They may not want to do accessibility. They may not want to be your go-to person added to their regular job, and I think we are getting away from how it was when I first started in the field, which for those of you who don’t know me, and I see that I’m not showing on the screen here, so you can’t see my gray hair, I actually started in digital accessibility in ’97 when I was negotiating with Bank America and Wells Fargo and Citibank around talking ATMs. Because I use a process called structured negotiation, which is collaboration, when one of our blind clients, Roger Peterson came to me and said, “Lainey, good job. We got talking ATMs, but there’s this new thing, online banking and we better make sure that’s accessible too.”

We worked with Bank America, and they became the first bank in the country to sign a web accessibility agreement with their customers because of the relationship that we were able to forge and in our process of structured negotiation as in other types of legal strategies, people with disabilities are centered. Back in the day, it was expected, “Oh, can you volunteer? This is a nice thing to do. Tell us if our products are accessible,” but those days are gone. Don’t forget all disabilities. Like I said, there seems to be a focus on first blindness, then deafness because of the captioning, but obviously disability is a very broad universe. When you’re thinking about the accessibility work, we must be thinking about people with all sorts of disabilities.

What I wrote down here, shorthand disability, plus disability is a cross cutting condition of the human person. Disabled people are gay and straight. Disabled people are black and brown. Disabled people are old and young. It’s really important when we’re thinking back to the top of who we’re designing for and who should be in our teams that we’re remembering the full scope of disability. I put here your idea here to #A11yWeekTO or A11yEthics of different points at which the ethics of how disabled people are involved in the process come up for you. Ethical user research, okay so these are places, these are the touchpoints where I’m thinking we need to have a focus on ethics and think about how ethics play out in this work.

Ethical user research, I’m going to recommend the accessibility Toronto presentation this week by David Sloan. I have a picture of him here. He’s @SloanDR on Twitter and his talk is called Tuskegee, Belmont, and Me – Ethics And Accessible UX. I talked to David a little bit on email about this talk. I think it’s going to be really great. I know that I will learn a lot. I know I added this in after I saw that he was doing this talk. User research is another place where a disabled people have to be centered and the ethics of how we’re conduct thing research, who we’re conducting with how, we’re reporting the research out is an ethical point. Don’t try on disability. This is one of the few don’ts I have on here.

This idea don’t try on disability, which is illustrated right now with a bunch of eye masks came from one of the software companies [accessiBe 00:12:49] on their blog post. They actually bragged about this that the founder, “distributed eye masks to blindfold every person in the audience,” which the previous sentence told us there were 600 people, “distributed eye mask to blindfold 600 people there, so they could experience for themselves the frustrations and disappointments that a blind user feels when they visit a site without accessibility.” That should come with a trigger warning. That’s an extreme example of someone saying, “Oh, try on disability, put on a face mask for five minutes,” but the ethical idea of trying on disability comes up in more subtle ways in all our work.

I asked my friend, Josh Miele who’s on Twitter. I have this picture covering up the eye masks. He’s on Twitter @BerkeleyBlink. I said, “Josh, is it ever okay to wear an eye shade?” He says, “It’s not always wrong,” capital always, that was in Josh’s text to me, “but it’s very rare to see it done tastefully and with relevance.” Ethics sounds stuffy, but tastes tastefully and with relevance, that sounds good. How do you do it tastefully and with relevance? I turned to someone else about trying on disability, which you can never do, but you can use some experiences to help people understand accessibility. This is from Lucy Greco, who’s on Twitter @accessaces who’s runs web accessibility at UC Berkeley. She’s a blind woman.

One thing she said was having a disabled person present to explain the problem and show the effectiveness of accessible code goes a long way, and the pictures I’m using or the people I’m quoting are from their Twitter handles, except for Lucy. I have her… what do you call it? Emoji as The Punisher, which she’s not really a punisher, but she had another really good line about importance of if you’re going to have an empathy lab, which is a place where ethics have to be coming right from the start and thinking about how you’re going to do it. Lucy said, “Empathy, if done right, can move people to do the right thing.

However, trying on a disability without having a person to show how they achieve the task will just make the non-disabled person feels sorry for the disabled person, without teaching that accessibility provides us with independence and removes the blocks.” There’s a lot written about how putting someone in riding a wheelchair or putting on ear shades or earplugs for 10 minutes, 20 minutes actually can have the opposite effect of creating empathy. That’s an area where we really have to focus on on the ethics piece. Be an anti-racist. I put this in as an ethics space. As those of you outside the US know this year in the United States, we have an ongoing national record reckoning with our racist past.

I think in accessibility work and all we do, in the United States, it started with police violence and criminal justice, but it’s important and there’s a growing understanding that the Black Lives Matter Movement has to be integrated into all aspects of what we do. To me, that includes accessibility. I have just a couple ideas on that and again, I really welcome people’s thoughts on the specifics of every slide. Like I said, what I got right, what I got wrong, what can be added. I’ve hashtag black disabled lives. This goes back to when we’re working with people with disabilities don’t have the default be a white man and well, I’ll get to that in a second.

Inclusive design, of course, the whole idea of shifting left accessibility design to design to me is part of the anti-racist effort because inclusive design includes a full spectrum of the human experience; race, gender, disability. I should have said at the beginning, every single one of these slides could be whole talk, and the thing about ethics already being on the table and big corporations and us integrating accessibility into those cupcakes and cookies, that could be a whole talk. Forgive me for the high level look, but I really wanted to put all this out, so we can start thinking as a community what resonates with us about how to be ethical.

Internal education, artificial intelligence has a lot of issues around, of course, the benefits for disabled people, the advantages and disadvantages across the board, but particularly with some types of AI and the impact on black people and other people of color, they’re doing all the bar exams for lawyers remotely this year. There was a big story that the, what do they call that, proctoring software, certain black test takers to become lawyers. They had that bright light shining on them because the technology, the artificial intelligence didn’t recognize the range of human experience in race. We’re working with AI to improve accessibility. We have to be aware of the issues. Amplifying black voices and representation.

The picture I chose for this is from a website called Disabled and Here, and it’s pictures of black, queer, and disabled. I’m not quite sure how they working at the intersection. This is a picture of three black women talking. One person’s in a wheelchair. Her back’s to us, we can’t really see her race. One person’s leaning on a cane. Just little things to me are things that have ethical implications. What pictures are we using for our slides? Who’s doing our talks? Who’s on our panel? Being anti-basis I think goes into the ethical touchpoints, and then the next one is question marks, please share your ideas on that.

Overlays and widgets, this morning, this slide said beware overlays and widgets, but now the slide says overlays and widgets and a global accessibility crisis because that’s what I think it is. I don’t know really know what else to say about it. It’s shocking to me how in the past year, an entire wave tsunami of software claiming to make things accessible in one line of code with no effort and 48 seconds is suddenly being purchased around the world. Again, we could have a whole talk on this, which I think I’ll be part of in A11y Camp Australia next month, but for now, I just want to highlight, I called the venture funded sparkle. I mean, these are companies that are getting big venture money for, I don’t know, there’s probably many of you are creative, so you can think of better ways to express this.

With the splashy, it doesn’t really deliver. Someone please text me or email me what we should call these things. What about due diligence? You talk about ethics. Companies are buying these overlays and widgets. I just saw get it and forget it. That’s how they’re advertising, get it and forget it. Like, “No, you can’t get accessibility, forget it.” To me, this is what started my whole… this and the drive by lawyers, the whole thinking of ethics. What are we doing here, and all these other issues like centering disabled people missing, completely missing from the overlays and widgets that have been written about. I’ll give you some links in a minute.

All these other issues fold into what’s becoming a global accessibility crisis. Due diligence, when an organization buys something that’s not related to accessibility, they have processes, they interview, they have procurement things. Here, people are running out to get the shiny, sparkly thing, really of ethical concern, and I don’t really know how to stop it. To be honest, I think we just have to be more vocal. We have to do what we can to let people know about the actual tools of these things. I put the link here to my piece, which is on my website, I put this link with dashes, but you can just find it. I think it’s on the most popular links, or you can just Google it.

The reason I put mine is because I include links to all the technical articles. Karl Groves, who taught me so much about this subject and Adrian, who’s written about this and talked about it and taught me a lot. I really recommend that I feel it’s like our ethical obligation to understand what these companies are. Then I come to find out this week, thanks to Twitter. Again, I love Twitter. At this link lies and gumballs, which are illustrated by a gumball. [Julie Moines 00:22:37] in France wrote this article about these accessiBe type companies in France. It really is a global situation. She wrote a very good piece. I’m really glad to be connected to Julie, and I encourage you to read it.

The company’s accessiBe, UserWay, Max Access. Those are some of them. Some of them are so-called white label. I don’t really understand that, but they’re using these companies, but they’re calling it their own company, like Safeway peanut butter or something. There’s many problems that are described in these articles that I linked to in my article. They don’t detect accessibility tests properly and so many things. I don’t know, we could then will talk about that. I don’t know, people, send me your ideas and what we can do, what can we do. Advertise honestly. Advertising is part of ethics. I have a stock picture free lunch and false advertising.

Accessibility does take effort and we have to be willing to talk about that. The ADA is not satisfied with one line of code. UsableNet is a consulting company. They keep track of how many lawsuits are filed against companies who are using the one line of code solutions. For the first half of 2020, they counted a hundred. I can’t verify these numbers, but I saw what their procedure was, or finding that number. It’s probably higher than the number. I just emailed with them today. They said there were 20 lawsuits filed against these companies last month. The ADA is not satisfied with one line of code. These companies do get sued. The ethics of advertising, so critical. Respecting privacy and autonomy.

Like we talked about, before privacy and autonomy are on the table for ethics for global leaders. Accessibility is privacy for disabled people. Without accessibility, there’s no privacy. They have to ask for help. This is a riff on that, which is these companies, I have an illustration here of one of them, which is essential accessibility, where they require a disabled person to use their assistive technology in order to get the accessible site, which is not accessible in the first place and as a separate site. Separate but equal, just wrong all the way around. What I want to do say about this is so essential accessibility, if a site is using them, it says on the top of the site, there’s a link or button, I don’t know, install free assistive test technology.

When you click on that link, you’re actually taken out of the site that you were on to a site that starts with You’re asked to sign an essential accessibility end user license agreement, which you must accept before you can even get the assistive technology, which I don’t even know what it is. Autonomy choice, being able to use the tools of your choice, that is a fundamental ethics issue. Some of these companies who are choosing to do accessibility in this short cut way are completely violating that ethical idea of autonomy. I just have to point out that the end user license agreement, the one I’d pulled up last week was dated 2013. Talk about separate, not being equal.

This is one of the problems with separate not equal is you can’t keep it up. Then I thought, well, maybe that was just this one company. I checked a different company today with this link installed free assistive technology, also essential accessibility last revised in November, 2013. Hard to believe they’re even compliant with privacy requirements that have been adopted since then. Again, your idea here, ways in which we have to be thinking about privacy and autonomy in accessibility work to be sure that our work is ethical. Respecting civil and human rights. This, of course, I’m a lawyer.

This is how I started thinking about ethics when all of a sudden into my field that I have been in since 1998, in 2017 came a type of lawyer who in my view is not respecting the ADA, is not respecting civil and human rights, is not prosecuting the cases in ways that result in full accessibility. I believe in collaboration. I wrote a whole book about structured negotiation. I need to say in this talk and in every talk that I also believe in civil rights lawsuits. My problem is not with a civil rights lawsuit. My problem is with a lawsuit masquerading as a civil rights lawsuit, so a couple things on the human rights aspect. Accessibility is a human right. It’s about communication, it’s about participation.

That is a key ethical point that I often do talks and say, “Put the law in your pocket.” It’s like, put the ethics in your pocket, understand that whatever your role in accessibility, you are creating or not creating civil and human rights. Avoiding fear, this is why I have the shark. Oh, I might’ve forgotten to say at the beginning, I have the dolphin in the background in my slides because I don’t think lawyers should be sharks. I don’t think accessibility is advanced. I’m not saying don’t be firm. I’m not saying don’t event civil rights. I’m saying don’t yell at people the way these lawyers yelled at me when I first called them up and said, “Welcome to the field, so glad you decided to be disability rights lawyers,” before I knew the true story.

Understand the law, follow-through, the law is a tool for accessibility. If you’re doing 10 lawsuits every two weeks, you are not following through and making sure things are accessible. On the other side, don’t look for loopholes. If you’re a company, don’t say, “Well, the law is unclear.” You know what, the law’s pretty clear. The law’s clear and in the legal update tab on my website, I have a lot of updates about the law. I invite you to read them. I do my best to try to keep the community up on what’s happening in the legal space, because I do think it’s important for us to be able to talk about the law in a way that gets away from the fear and gets back to the civil rights. Examine your accessibility legal ends.

How do you talk about it? My feeling is say that there’s some bad actors. We’re not going to ruin the whole bucket of apples. We’re not going to throw the baby out with the bath water to mix metaphor, just because a few people are misusing the law. The ADA is 30 and Canada has laws. Globally, there’s more and more laws. We’re not going to let a few bad actors take away the fact that civil rights are an important part of accessibility. I have written extensively about this in my red flags piece, which had given fine. I did a short link,, and I go through the whole thing about what to look for in a lawsuit. Like many important things, it’s nuanced. I invite you to read it.

Recognize conflicting interests, this idea I got from Jamie Knight, who’s also speaking at the conference and I recommend. He said, “Ethical issues tend to be about balancing needs when different user groups have opposing requirements.” Jamie’s @JamieKnight, one word, JA-M-I-E K-N-I-G-H-T, and here he’s in a picture. His Twitter photo with lion. This is a place where ethics comes up that sometimes there could be conflict between the needs of one disability group and another. As we said earlier, we’re centering disability in all its formats and all its flavors and all its… I asked Jamie for some examples, he gave me a couple.

I’ll only read one, and the basic point I understood from Jamie and I hope he’s going to share more about this or tweet, or tell me how I can make this better next time is there will be conflict, and our role in accessibility is to resolve conflict in a way that does not exclude anyone. Even if everyone is a not a hundred percent satisfied, we have to make sure we’re not excluding. Again, all these ethical issues are intertwined because exclusion of course is a civil rights. Like Jamie gave this example, “Autistic person and low vision person shared the same workplace. One needs dim lights, the other needs bright lights. In this case, sunglasses for the autistic person and lights kept bright.”

Jamie knows this firsthand because he said autistic person was me, “chosen because it was the simplest way to accommodate both needs,” so another place, another touchpoint to look for ethics and be aware that our decisions are ethical. The decisions we’re making impact ethics. Recognize conflicting roles. Jamie was recognized conflicting interests. This is a another place where ethics can come in. “For many accessibility consultants who work for multiple clients, the conflict between sales and independent advice can be a challenge. Sell tools or services or tell the client they are ready to fly on their own.” This came from Allen Hoffman who’s @Twithoff, who as I said, anyone I’m quoting here, I have permission to quote from. Pictures of people gave me permission.

I chose a picture, because Allen doesn’t have a picture on his Twitter profile, of a hat that says vote, very timely because many of us wear multiple hats and every time we change, hats is an ethics point. This is a quote from Allen. I’m not saying what is a conflict, what isn’t a conflict, but every time you change a hat from a tester to a seller or to whatever, tools manufacturer to a service seller, that’s a place for ethical consideration. Respecting WCAG, respecting WCAG. This is Adrian in his rear view mirror with a camera, Adrian Roselli. He wrote, “Too many organizations, consultants, et cetera target WCAG compliance, even when it’s the minimum can be gamed, can be shown not to help real humans in specific cases.

The challenge is in helping people without also alienating clients, devs, and designers. Unfortunate compromises can happen.” Again, it’s different roles. I want to say that I called this respect WCAG, that’s my words. That was Adrian’s quote. Too many people don’t respect WCAG. They make it sound like it’s too complicated. This is what we have. This is the international standard. We have to make decisions on the ethics of, yes, I believe in free speech, but we just have to be careful about what we’re doing with the standards that we have. VPAT, what VPAT? This has no one’s picture because this is a thing that bothers me. It’s not just a check box and I put a link in here.

I wrote a little bit about VPATs and a document I help disability in and their corporate partners do on accessible procurement. You can find it at It’s not just a check box. There’s a whole huge process. I believe there are ethics that go into, not ethics, law and ethics. You say something’s accessible, it should be accessible. You’re required to know if a product is accessible. Don’t just say I read a VPAT because the VPAT might say this thing isn’t accessible, so that’s another place where ethics come in. Community, I have a picture here of the Toronto Disability Pride March. I see myself as part of three different communities that impact my ability to do my accessibility work as either an ally or a member.

One of course is the disability community. There’s so much important work that goes on the culture and the arts and the history, and so much in the disability community that we can all learn from that impacts our ability to do accessibility work ethically. Of course, as the accessibility community and this wonderful community that this year we have to come together virtually, but being part of the community learning, sharing and of course the community is global. That’s what I got. Those are my ethics ideas so far. If you have more, please hashtag A11yEthics or A11yWeekTO or me at @LFLegal, or send me an email or a direct message if you don’t want the world to know what you’re thinking. Again, I’m at LFLegal, and you can reach me through my website,

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