Advocating for eResource Content Accessibility

Making vendors responsible for digital accessibility.

The case that could have destroyed everything

According to recent litigation, libraries are responsible for accessibility, because they paid to access the inaccessible content. When libraries raise the issue with third-party vendors, vendors often point the finger at the publishers and authors. They claim that they simply aggregate and index the content given to them; the inaccessible content isn’t theirs.

In Payan v. LACCD (2021), blind students sued the Los Angeles Community College District (LACCD). As one summary of the case describes, “The students want the textbooks, handouts, websites, and other technology they use at school to be accessible to them.” In 2019, “the federal judge ordered LACCD to [sic] make its materials, websites, and software accessible to blind students, and to remedy barriers in its library databases.”

Neither the library catalog nor vendor content databases—among other products that libraries have, for decades, subscribed to for accessing millions of information pieces—are guaranteed to be available in an accessible format. This is the giant elephant at the negotiating table between libraries and vendors and that is often ignored as libraries address the crushing increases in subscription fees.

Until this case, the question of responsibility for accessibility wavered delicately between libraries and vendors. However, libraries have always held the burden of legal ownership for inaccessible content. The problem lies with the scope of Section 508 of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, which extends accessibility to digital spaces for institutions that receive federal funding. Most public, special, and academic libraries receive some level of federal funding, but many corporations do not. In those cases, third-party vendors are not legally required to meet the same accessibility standards, though they are in everyone’s best interest.

LACCD appealed the ruling, claiming the discrimination was unintentional. The problem with this approach is that the majority of inaccessible digital spaces aren’t due to people intentionally going out of their way to ensure exclusion or discrimination. Nearly all cases are based on unintentional discrimination, followed by varying degrees of arguments over how responsible that corporation is for building inclusive digital spaces. Domino’s Pizza argued vehemently for six years that they had no responsibility to make their online ordering system available to blind people.

If the LACCD appealed to the Supreme Court using “disparate impact,” then, according to Disability Rights California, “more than 40 years of hard-fought-for civil rights of people with disabilities would be unceremoniously undone in one fell swoop, leaving a trail of destruction and harm that extends far beyond the scale and scope of the case against LACCD or their jurisdiction.”

With libraries on the legal hook for corporations’ lack of accessibility, libraries need to hone the tools they have available.

Read more about digital accessibility:

Prioritizing accessibility in contract negotiations

Many aggregate and index databases are willing to include some accessibility language in the contract. However, this language likely will only cover their product—not the content itself, but the search interface and record display pages.

Some vendors may provide a Voluntary Product Accessibility Template (VPAT). In a VPAT, vendors provide answers to each of the Web Content Accessibility Guidelines’ (WCAG) success criteria. VPATs are primarily useful for negotiations and should not be considered accurate or comprehensive.

During vendor negotiations, ask who filled out the VPAT. Sometimes, it’s marketing or sales personnel who are unlikely to have the technical expertise to respond correctly. If a product developer writes responses, they may not include all the features or modules the library is considering. Libraries can request that VPATs are performed by third parties, preferably accessibility consultants, such as Deque or Level Access, but vendors may then request that the library covers the cost. Do not pay for their VPAT evaluation. If the vendor suggests the library pays for it, that should be a warning flag for how the vendor views accessibility responsibility.

What VPATs can do is open the door to a conversation. Request more details, a road map for accessibility issues, and their accessibility coordinator’s contact information.

Filing bug reports

Accessibility errors can be filed with the vendor as bugs or issues. Remember to provide details so the vendor’s developers can replicate the issue, and reference specific resources, such as WCAG success criteria, for implementing a solution.

Using collective action to address accessibility issues

If accessibility issues aren’t promptly addressed, libraries can use collective action by reaching out to multiple institutions to file the issue. The Library Accessibility Alliance performs at least two e-resource tests a month on various library e-resource vendors. The tests are made publicly available, and each vendor is offered a free hour with accessibility consultants to go through the results or ask questions. 

Library consortiums may have more leverage in negotiating, since their contracts are often substantially more lucrative than individual institutions. Ensure your consortium includes accessibility as a requirement.

Beware of accessibility overlays

A vendor may opt to cheat their way toward passing an automated accessibility audit using products called accessibility overlays, “add-on accessibility,” or machine-learning tools for accessibility. The sales pitch for these products sound cutting-edge and promise nearly 100 percent accessible websites with one line of code. Product teams may see overlays as a solution to what may feel like an overwhelming issue.

If the vendor or product uses an accessibility overlay, do not purchase or subscribe unless they agree to remove it and resolve the underlying accessibility issues of their product. Libraries should never use these products on their own digital spaces. As the A11y Project writes, “[W]e view these kinds of products as actively harmful, and a step backwards for digital accessibility efforts.” Adrian Roselli, an accessibility advocate, has written in-depth about how it may get you sued.

The publisher dilemma

If publishers and their authors are the source of inaccessible content, how are they addressing it?

Some publishers haven’t adapted to a hybrid existence. They still format articles with a print-first mindset, which often is not optimal for reading on screens, with or without assistive technology. Little has been said about the publishers’ or their authors’ responsibilities. When this point was raised by a librarian in conversation with a vendor, the response was that there were thousands of publishers. 

Libraries need to reach out:

Taking action can work. According to reporting by The Valley Star, at LACCD “the board of trustees listened to over 60 disability advocates before deliberating for over five hours and deciding just after 10 p.m. against filing a writ of certiorari.” Their petition never went to the Supreme Court.

Authors and publishers need to shift their practices, and vendors and libraries need to better advocate and support that effort. To the initial chicken-and-egg question, the egg (the article) came first, but the chicken (libraries) takes all the legal bacon.

Sign up for LibTech Insights (LTI) new post notifications and updates.

Interested in contributing to LTI? Send an email to Deb V. at Choice with your topic idea.