December 2013 Issue  Volume 14  Number 12

Profiles

Lainey Feingold: The Power of Structured Negotiations

When Lainey Feingold went to law school, she wasn't planning to fight for the rights of those who are visually impaired or any other particular minority. She did have a natural inclination toward believing in social justice and human rights. Early in her career, she found herself in what she assumed to be a temporary job at the Disability Rights Education and Defense Fund (DREDF). Here, she became eager to learn about disability issues.

As it turned out, Lainey Feingold was with the Berkeley, California organization from 1992 to 1996, and by the time she left to build a home-based law practice enabling her to be more fully involved in the lives of her two young daughters, she was thoroughly in touch with people with disabilities and their countless encounters with discrimination.

She wound up working on behalf of some wheelchair users who were weary of the second-class citizenship afforded them when they couldn't reach the height of gas pumps to fuel their own vehicles or enter the convenience stores commonly affiliated with gas stations. In an effort that Feingold and her collaborator, Linda Dardarian, would eventually refer to as "structured negotiation," Feingold orchestrated a settlement netting the results those wheelchair users desired and deserved, and no one ever went to court.

First Foray into Information Access for People Who Are Blind

The first case involving blindness that she recalls came in 1993 or 1994 when a particular Californian who was blind became exasperated with the failure of Bay Area bus drivers to announce stops.

"The ADA had passed in 1990 and regulations were in place," Feingold recalls, "so the rules were there, but people weren't following them."

Rather than filing a lawsuit, Feingold wrote letters, made phone calls, reached an agreement, and solved the problem with the active participation of her clients.

By the mid-1990s, word of her abilities had begun to spread, at least in the blind community in California, and Feingold became engaged in a major struggle for information access that is today a significant access milestone. Obtaining your own financial information and accessing your own cash are conveniences most of us now take for granted, but in the 1990s, a blind person could not use a simple ATM to get cash, deposit checks, get balances, or transfer money from one account to another. Similarly, accessing your own information independently, despite state and federal laws, was not something people who are blind could do.

A few individuals and the California Council of the Blind brought the problem to Linda Dardarian's office, Linda got Lainey involved, and again, the letter writing and negotiating began. It didn't happen overnight but by early 2000, Wells Fargo, CitiBank, and Bank of America throughout California had committed to providing information to customers who are blind or visually impaired in alternate formats, and the widespread installation of accessible "talking" ATMs was launched.

The approach was friendly, collaborative, and took inordinate patience. As with all cases that would follow, Feingold stresses that blind individuals and organizations as claimants were actively engaged in the process every step of the way. The gist of the initiative was to assist these major financial institutions in providing accessible information to their blind customers, collaborate with them to avoid the hostility and expense of litigation and, of course, to guide them through the process of just plain doing the right thing. The results of that first major settlement, talking ATMs at banks throughout California and statements mailed to blind customers in braille and large print, was a clear win-win for everyone.

Kelly Pierce and Anne Byrnes, two Bank One (later Chase) customers who are blind in Chicago heard about Feingold's success in California, and enlisted her help in launching a similar negotiation in Illinois. Again, patience and persistence in what Feingold was now calling structured negotiation earned the positive outcome of talking ATMs and financial information in alternate formats to all Bank One customers who were blind.

Beyond Banking

In the nearly two decades and 50 settlements that Feingold and Dardarian have negotiated, the broader picture of information access has reached far beyond the banking industry. Structured negotiations have resulted in obtaining accessible information for blind customers of such institutions as American Express and Charles Schwab, for example, and in the successful installation of accessible point of sale devices in tens of thousands of stores in such retail chains as Wal-Mart, CVS, Best Buy, Target, and a half dozen others.

In San Francisco, pedestrians who are blind worked with Feingold and Dardarian for the installation of practical, accessible audible traffic signals, so that where there were once just a handful of such pedestrian informational signals, there are now about a thousand.

As the result of one little girl's mom (Helen Popper, mom of then six-year-old Rio) looking forward to a time when her daughter would want to go to any movie and enjoy it independently with her friends, a structured negotiation was begun with a national movie theater chain, Cinemark, resulting in the installation of audio description equipment in every theater in that chain nationwide.

The work has expanded to include information access in medical environments as well. Hospitals in Massachusetts and California now provide patient information in alternate formats due to the structured negotiations initiated by Feingold and Dardarian, (and in Massachusetts by attorney Dan Manning of the Greater Boston Legal Services) along with a number of blind individuals, the Bay State Council of the Blind, California Council of the Blind, and others.

Online Access

Dating back to that first settlement with the three California banks, Bank of America is credited with having included online accessibility as part of the equal access afforded blind customers. Today, online and mobile accessibility are recognized as vital parts of every structured negotiation Feingold initiates.

Two recent successful settlements were focused primarily on web and mobile accessibility. The web sites for Weight Watchers and Major League Baseball are both interactive sites, and both were brought to the attention of Feingold and Dardarian by individuals who are blind and were frustrated by inaccessibility and the desire to use these services. The involvement of individuals who are blind is essential to every case, Feingold says, in part because it makes it clear to the company invited to the negotiation that here are customers who are interested in the product but unable to use it.

How It Works

Feingold emphasizes that every case in which she has been involved has been initiated by individuals who are blind or visually impaired. There is first a documented effort on behalf of those individuals to encourage a company to provide the information access requested. When lawyers enter the equation, she says, rather than taking the approach of filing a lawsuit, letters are written and phone calls made inviting the company to engage in the negotiating process. "It takes patience, optimism, and perseverance," she says. The advantage of negotiation, rather than litigation, is that the relationship involves two parties working together toward desirable outcome, rather than a plaintiff and a defendant struggling with one another. Obviously, the cost of depositions and court appearances is eliminated, so complying with what is actually law is less expensive if the institution cooperates.

And how are the lawyers paid for their time and effort? Feingold explains that when a situation is identified as discriminatory, whether the victims of that discrimination are women, racial minorities, people with disabilities, or another group, the law requires what is called "fee shifting." In other words, the burden of paying lawyers' fees shifts to the offending organization, so that in addition to providing the accessible information required in the settlement, the offending organization is also obligated to pay attorneys' fees.

Since most of the settlements to date have involved individual members or affiliates of the American Council of the Blind (ACB), Feingold was asked about the distinctly different approach taken by the National Federation of the Blind (NFB). She spoke with immense respect for NFB's attorneys, both external and internal, and is actively involved in an information-sharing organization called the Disability Rights Bar Association, in which attorneys working on behalf of both NFB and ACB are involved. Litigation works, too, Feingold believes, but she and Dardarian have chosen a different path with structured negotiations. One particularly interesting circumstance in which legal efforts have mirrored one another on behalf of both ACB and NFB has been in the airline industry. To have a negotiation, the invited party obviously has to agree to the process. Only once has a company refused Feingold's invitation: Jet Blue, whose blatant disregard for building accessibility into either its website or onsite kiosks resulted in a lawsuit filed by Feingold and Dardarian. A similar suit was filed against United Airlines by NFB attorneys. Both cases are currently under appeal.

Lainey Feingold is a talented lawyer who cares passionately about the rights of those who are blind or visually impaired to have independent access to information, whether financial, educational, entertainment, medical, or in any other aspect of living life in America. She is in the process of writing a book about her experiences with structured negotiations, a book that she says wouldn't be possible without the many individuals who are blind and have brought each case to her attention.

"I've been lucky," she says. "The work has been great and the story needs to be told."

To read more about settlements that have occurred, how to address a discriminatory situation in your own region, structured negotiations, and the work Lainey Feingold herself, visit her law firm's website.

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