Laws Protecting People with Disabilities Won't Work if They're Not Applied
In my last column, I reviewed the facts of a case in which AT&T violated state and federal law because its interactive voice response (IVR) was not accessible to people with difficulty speaking or having their speech understood. The plaintiff satisfied the elements required by law and proffered evidence of actual damages, but her litigation options were limited to arbitration or small claims court. She chose small claims court.
Technically, the plaintiff won: The judge awarded her damages. But they were a fraction of the minimum damages required under state law and they were a fraction of her actual damages. If she met her burden under state and federal law, why did the judgment bear no relation to her damages?
The plaintiff began by briefly explaining the nature of her disability, which includes difficulty multitasking, processing information, and speaking, all of which affect her ability to use IVR.
The judge’s response? “Well, you seem to be talking to me just fine.”
Do you see how, from the first words out of the judge’s mouth, his analysis was not “Did the defendant violate the law?”; rather, it was “Is the plaintiff disabled enough?”
And that’s the wrong analysis.
In 2008, Congress passed the Americans with Disabilities Amendment Act (ADAA) in response to Supreme Court decisions that narrowed the definition of disability under the ADA. Congress stated that disability should be construed broadly, and the primary object of attention should be whether businesses have complied with their obligations and whether discrimination occurred, not whether the individual meets the definition of “disability.”
IVR taxes the cognitive system as well as linguistic and speech systems because it requires the caller to orally use target words to trigger the desired service; increase articulation and volume of speech; repeat oneself; and listen to an audible cue while the system is processing one’s request. Additionally, since users cannot always anticipate what IVRs are going to say, they must process information in the moment and quickly make a response, which can be difficult or impossible for users with these deficits.
While these factors are crucial for IVR developers to understand, they are irrelevant to this legal analysis.
The judge was not familiar with the pertinent laws and he clearly did not understand the disabilities at play. He was not aware of the required legal analysis. And he did not allow the plaintiff to proffer evidence regarding such.
The plaintiff enumerated the elements of the applicable laws, applying evidence to support her contentions and meeting each element required to prevail. She submitted a brief presenting a cogent written argument to accommodate for her difficulty processing information and speaking. It outlined statutory and state law, recited the facts, and provided exhibits, including documentation of special damages incurred as a consequence of AT&T’s discrimination.
AT&T’s representative presented its case by tossing out a string of politically correct yet meaningless words and phrases, without even stringing them together in actual sentences: “We are committed to… handicapped… ADA… whole department… take seriously…”
The defendant continued by stating that the plaintiff could have used AT&T’s website or walked into any store and paid her bill in person or read the teeny tiny fine print on her bill each month to advise herself of the company’s commitment to accessibility.
The judge asked, “Why didn’t you go into the store to pay?”
Why didn’t the plaintiff hop into her car, drive to an AT&T store, park her car, get out of her car, walk to the store, open the door, bombard herself with the sensory overload she would face in the store…month after month after month?
Because that’s not what the law requires.
The judge asked, “Why didn’t you pay online?”
Turning on a computer, opening a browser, navigating to a specific website, creating an account, remembering and being able to return to the site, entering a username and password, navigating to the proper screens and reading and following online instructions bear no resemblance to pressing 1 on a keypad to pay one’s bill.
But that’s irrelevant.
The law requires that IVR be accessible, without the use of speech, to people who have difficulty speaking or having their speech understood.
Never did the judge ask, “Why did AT&T violate the law?”
It’s all well and good to have laws to protect people with disabilities, but if courts don’t apply them, they’re meaningless. Just like they were in this case.
Robin Springer is an attorney and president of Computer Talk, Inc. (www.comptalk.com), a consulting firm specializing in implementation of speech recognition technology and services, with a commitment to shifting the paradigm of disability through awareness and education. She can be reached at (888) 999-9161 or firstname.lastname@example.org.