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Lissner, Scott lissner.2 at osu.edu
Mon May 29 19:21:50 PDT 2017

The most a public entity may be able to do may be to expressly contract for compliance


Accessibility Policies & Third Party contracts, what can you learn from architecture?

Many colleges have developed a thoughtful, well crafted digital accessibility policy and are seeing considerable success with campusawareness and internal digital development and content creation but are hitting a wall when it comes large scale enterprise purchases that form our digital infrastructure. From content management to self-service functions these tools often fall short of functionally meeting accessibility standards and require negotiating improvements from the vendor or extensive exceptions with costly work-arounds. While most contracts have a "nuclear" option – you can walk away from the contract if the product does not comply with all state and federal regulations - that is not a realistic threat or compliance tool when it takes 3-8 years to walk away.

There needs to be additional contract language that incentivizes contractors and vendors tasked with designing and updating your infrastructure. Contract clauses for indemnification andproportionate penalties (e.g. refunds on license fees for days out of compliance). A recent case about airport facilities (City of Los Angeles v. AECOM Services, Inc., 854 F.3d 1149) can inform your conversation.

As a background, the ADA does not speak directly to indemnity which has led some courts, including then 9th Circuit, to conclude that like other civil rights statute the ADA creates a ”non-delegable” duty. The logic is that if the law allows any party toassign any part of their civil rightsobligation though indemnification itwould dilute, if not undercut, the goals of equity and inclusion the law embodies. This logic works well for the general prohibition of non-discrimination but overlooks the reality that the ADA reaches beyond local laws, policies and practices and into the built environment (physical and virtual).

Compliance with technical standards in the context of architectural and digital infrastructure often necessitates heavy reliance on both the technical expertise and the representations of third parties in ways that are unique from other civil rights statutes. Similarly, the financial consequence of mistaken reliance on third parties are often considerable.

"The most a public entity may be able to do in furtherance of its duties under the respective acts may, in many situations, be to expressly contract for compliance (contractual provisions for which it will potentially have to pay a premium to the contractor). From there, the entity best situated to ensure full compliance may well be the contractor tasked with designing or constructing the public resource in question, and precluding contract clauses for contribution (indemnification) reduces a contractor’s incentives to do so."

City of Los Angeles v. AECOM Services, Inc., 854 F.3d 1149<https://www.gmsr.com/case/city-los-angeles-v-aecom-services-inc-april-24-2017-ninth-circuit-no-15-56606-__-f-3d-__-2017-wl-1431084/>

L. Scott Lissner,
The Ohio State University
ADA Coordinator and 504 Compliance Officer
Associate, John Glenn School of Public Affairs
Lecturer, Knowlton School of Architecture, Moritz College of Law & Disability Studies
Board, Center for Disability Empowerment & VSA Ohio
Chair, Public Policy Committee, AHEAD

(614) 292-6207<tel:(614)%20292-6207>(v); (614) 688-8605<tel:(614)%20688-8605>(tty) (614) 688-3665<tel:(614)%20688-3665>(fax); Http://ada.osu.edu<http://ada.osu.edu/>
21 East 11th Ave., Columbus, Ohio. 43210

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