Disability Law Blog Essay

From Compliance to Initiative: The Next Stage in Disability Inclusion

Editor’s Note: This piece is a part of our series celebrating the thirty-year anniversary of the Americans with Disabilities Act (ADA).

The Americans with Disabilities Act (ADA) has been transformational in many ways, especially in the way that people with disabilities can access public spaces and thereby participate in their communities. Nevertheless, a look at the ADA’s impact on its thirtieth birthday reveals much that has not changed. Notably, the needle on unemployment of employable persons with disabilities has scarcely budged. In other areas things are getting worse. WebAim’s survey of the home pages of the one million most popular websites, for example, revealed barriers on 98.1% in 2020, an increased incidence rate from 97.8% in 2019; likewise, the average number of accessibility errors per home page rose to 60.9% in 2020 from 58.8% in 2019.

The time has therefore come to re-assess how to innovatively advance disability rights.  Historically, strategic litigation has been the tool of first resort of cause lawyers on behalf of marginalized groups in the U.S. including, at times, people with disabilities.  Litigation is an important tool, but one that is expensive, time-consuming, and non-systemic.  Because defendants settle the strongest cases, it is hard to build a body of good law, and, for the most part, employment disability rights cases are dependent on the facts around reasonable accommodation that are idiosyncratic and provide relief one plaintiff at a time.  Moreover, all too often, entities do not want to comply when the law is clear or even when it is economically in their own self-interests. Part of the problem lies with the stubborn, prevailing cultural perception of “disabled” as “less able,” and a view of accommodation as an imposed burden, rather than a positive opportunity to include those with disabilities. Consequently, the ADA remains a broad mandate that society has not yet fully embraced.

It is time to consider how to move from compliance as an imposition toward desired inclusion and belonging—from a semi-effective external enforcement stick to a more effective self-motivated carrot.  From that perspective, current laws are not much help.  The ADA, the Rehabilitation Act (Rehab Act), and their accompanying respective regulations elaborate on what covered entities should not do—discriminate, create barriers, and fail to make reasonable accommodations.  But apart from the notable exception of the ADA Architectural Guidelines (ADAAG) and the Rehab Act’s 508 regulations, governing the accessibility of electronic and information technology applicable to federal governmental entities, there is little in the way of guidance as to the affirmative steps that organizations could take to be inclusive and accessible to customers, employees, and job applicants with disabilities.  Not surprisingly, so far the record on the effectiveness of affirmative standards, beyond ADAAG, is not encouraging.  Compliance by the federal government with 508, as well as by states that have 508 equivalents, was and is rare.  Take, for example, the extensive use of Google Docs before it was accessible; further, use of inaccessible Microsoft SharePoint by governmental entities at all levels was and is endemic. 

So, where is the all-in-one answer to what an entity needs to do to be fully inclusive of people with disabilities, be they customers, employees or job applicants?  If an entity wants a comprehensive answer as to how to build an energy-efficient building, an architect advising a corporate CEO can point to the LEED certification standard for the steps to take.  But there is no disability equivalent—a comprehensive, cross-disability set of affirmative steps that a corporate or other entity can take to ensure that the organization is fully welcoming and accessible to persons with disabilities. 

That there would be corporate interest in such a set of standards is not naïve.  Increasingly, as corporations become more knowledgeable about demographics and customer bases, the importance of expanding one’s customer base is clear.  One marker: Wal-Mart’s website was one of the first retail websites to be non-visually accessible, and that, without any litigation or, so far as these authors know, threat of litigation.  So, too, some corporations are slowly awakening to the benefits of including people with disabilities as part of employee diversity. 

The answers to how to be inclusive are not necessarily self-evident to a corporate executive or to a risk manager.  What does a disability-inclusive emergency planning and disaster resilience program for a corporation need to include?  How, exactly, do you incorporate accessibility requirements into software design standards?  How do you ensure that those who sell you employee-facing software are selling you accessible software?  Does the new AI program being used by human resources to screen job applicants discriminate against applicants with disabilities?

Such a set of standards must also reflect what changes to corporate infrastructure will ensure the sustainability of the effort—at what level is the leadership? What goes into employment reviews about compliance with accessibility efforts?  How does the reporting chain flow to ensure that the right people know what is and is not happening?  In other words, where is the accountability that goes beyond the rhetoric?

Some companies have come together through an entity called Disability:IN to outline some steps that corporations can take and subsequently score themselves.  While those standards cover a number of areas, they are not comprehensive. As a result, a company can, for example, market inaccessible software while scoring 100 on the standards.  While the Disability:IN standards have produced some notable progress, such incidents of perfect scoring and imperfect results have opened up the system to significant critique within the disability community.

The source of a LEED-equivalent standard for disability inclusion should, of course, come from the disability community itself. There is no more authentic source for what a company needs to do for people with disabilities than people with disabilities.  And compliance scoring needs to be external and verifiable.  To this end, the National Federation of the Blind, the National Association of the Deaf, Association of Late-Deafened Adults, The Arc, the Autistic Self-Advocacy Network, National Council on Independent Living, the Bazelon Center for Mental Health Law, the World Institute on Disability, the Civil Rights Education and Enforcement Center and advocates for persons with allergies have all contributed to the ongoing development of just such a set of standards for corporations.  (It is hoped that ones for educational and governmental entities will follow). 

But while disability advocates know what is needed, the input of corporate professionals who know how corporations work into the fashioning of such a benchmarking tool is likewise necessary.  Thus, the standards that are being generated have been reviewed and commented on at length by digital accessibility consultants, built environment consultants, and human resource professionals who have made constructive suggestions on such matters as broadening training and how to address steps in web and app design.

After one of the authors proposed the development of such standards in a keynote speech at the 2017 CSUN Accessible Technology conference, the International Association of Accessibility Professionals agreed to host the standards.  The IAAP, a division of the Global Initiative for Inclusive ICTs (G3ict), is a not-for-profit that certifies digital accessibility professionals and is now undertaking to also certify built environment professionals.  It intends to also develop a curriculum, training, and certification for disability inclusive emergency and disaster resilience planning.  Among the important actions taken by the IAAP is the agreement that modifications to the standards, questions such as whether a corporation might earn partial credit, and the frequency with which audits of continued compliance will occur, are decisions that will remain in the hands of the disability rights groups named above. 

At present, the standards, under the sobriquet Smart Business 4 All (SB4All), are under review by two significant corporations who are assessing the feasibility of being the beta testers and identifying areas that are ambiguous or will pose major challenges.  The standards in this benchmarking tool, even if adopted by only a small number of large corporations, could have a large ripple effect.  Consider, for example, the requirement in SB4All that employee-facing software must be accessible on renewal of the software license.  Right now, the ADA and other statutes do not require  that software developers make their software accessible.  However, if sellers of accounting, human resources, inventory, and other business software are facing a demand for accessibility from a number of significant corporate customers, accessibility will become a market requirement and a sales point. 

In the civil rights movement, we have seen over and over the complex interplay between cultural perception and law, whether the subject is race, gender, or sexual orientation.  Success for disability rights will require more than litigation.  The authors believe SB4All is a promising approach, but only as part of a multi-prong effort to change the meaning we ascribe to disability and the societal value of including individuals with disabilities.  Thirtyfive years after the enactment of the ADA, we need both new approaches and renewed vigor.