40 Accessibility

Desired result:

The ideal result is for the Publisher to make a warranty (or affirmative statement) that the Licensed Materials comply with:

AND/OR

Furthermore, it’s helpful to have the Publisher state that they will help to resolve any accessibility complaints that may arise.

You also want the vendor to agree to indemnify you if a third party (e.g. library user) brings a claim against you for providing inaccessible content that the publisher warranted was accessible.

Having an accessibility statement should be treated as a priority in virtually every license agreement. Exceptions can be made in limited circumstances for materials that are more likely to inherently be accessible, such as machine-readable raw datasets. If the Licensed Material includes formatted text or data visualizations (charts, graphs, etc.), then an accessibility statement should be included.

Essentials of the law

Educational and research institutions bear federal and state obligations to make materials accessible in various ways. So, when considering accessibility clauses, it can be helpful to understand the legal landscape in which an accessibility clause rests.

Titles II and III of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act prohibit discrimination by public entities and places of public accommodation against disabled persons. An individual with a disability is defined by the ADA as a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment. ^[2]. To understand the risks of licensing non-accessible content for disabled persons, we think it’s helpful to dive a bit into the grounds upon which a potential user may bring suit against your institution.

Eligible plaintiffs

A person bringing suit under either statute must demonstrate (1) they are a ‘qualified individual with a disability’; (2) they were either excluded from participation in or denied the benefits of an entity’s services, programs, or activities, or were otherwise discriminated against by the entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of the disability. ^[3]. Public institutions are covered by Title II of the ADA while private schools are covered by Title III, and both are covered by section 504 of the Rehabilitation Act.

Theories of liability

Under either Title II or Section 504, a plaintiff may base a disability discrimination claim on one of three theories of liability: (1) disparate treatment (i.e. differential treatment made expressly on the basis of their disability); (2) disparate impact^[4]; of a public institution’s otherwise “facially neutral”^[5] policies or services, or (3) a public institution’s failure to make reasonable accommodations in response to a qualified individual’s request.^[6]. It is very unlikely that your institution, through its e-resources license agreements, differentiates treatment expressly on the basis of a disability (theory 1). So really what you want to make sure your accessibility clauses cover are eliminating disparate impact (theory 2), and allowing for reasonable accommodations (theory 3).

With that in mind, we look next at the legal standards of both “disparate impact” and “failure to accommodate” next.

i. Disparate Impact

Disparate impact claims arise when a public institution’s services, policies, or practices are not fueled by discriminatory intent, but nonetheless have the “effect of denying meaningful access to public services to people with disabilities.”^[7] The defining characteristic of a disparate impact claim is that the at-issue service or policy adversely affects all people in a defined group (e.g. all blind persons). If a public institution’s policy or practice systemically has this type of disparate impact on disabled persons, then the institution is further obliged to make a reasonable modification to that policy or practice to avoid discrimination. To illustrate the operation of these concepts, consider a library web application like Dataverse used for accessing licensed data content. If the Database application is incompatible with screen reading software, this service would have a disparate impact on blind students, and the university would be required to make a reasonable modification to its web application. Making a reasonable modification might mean adopting an alternative software, or implementing website programming code to render the platform accessible.^[8]

ii. Failure to accommodate

Separately, a qualified individual also has a right to receive a reasonable accommodation to prevent discrimination in response to their specific need. Failure to provide reasonable accommodation claims arise in scenarios such as when: (a) a university fails to provide textbook to blind student in e-text format in timely fashion; (b) a professor fails to provide electronic version of a handout to blind student, who cannot read the in-class paper handouts; and (c) a university fails to offer in-class notetaker for a qualified student with auditory difficulty.

Note the distinction between the legal obligation to make a reasonable accommodation in response to a request by an individual with a specific need, and the separate duty to make reasonable modifications to a policy, practice, or service in order to avoid disparate impact: While public entities must make reasonable accommodations for qualified individuals pertaining to specific requests, they also have legal obligations to make reasonable modifications to otherwise facially-neutral policies or services that deny people with disabilities meaningful access to the entity’s programs or services.

Implications

What these laws and standards mean for your e-resource licenses is that you want to ensure:

• that your facially-neutral licensing policies do not create a situation in which disabled groups are impacted differently from other groups using your resources. This would mean, for instance, that blind readers are able to use your resources to the same extent sighted readers would;
• That your licensing provision allows you to make reasonable accommodations to modify licensed content so that you may respond to individual user needs, and / or that the vendor will work with you on providing modified copies; and
• That the vendor take on the work of providing accessible content from the start, so that you can avoid both of these scenarios all together.

*Note that the vendor’s provision of a VPAT does not actually satisfy the above laws, nor does compliance alone with WCAG standards. However, what you would be looking for in a VPAT is a roadmap from the publisher or vendor indicating a timeline and pathway for their attainment of WCAG 2.1 (or 2.2) level AA compliance within the term of your license agreement; this can provide reassurance that accessible materials will be made available to your users, even if not immediately available at the execution of your agreement.

Desired language

The following clauses are presented in descending order of preference. You may have to piece together accepted parts of the statement during negotiations and/or work your way through the list to get as close to the desired language as possible, based on the vendor’s concerns regarding the statement.

Handling vendor objections

If the vendor will not provide a warranty and only agrees to use “reasonable effort,” then the Licensee should explicitly state that they have the right to modify the resource for the purposes of making it accessible to Authorized Users with disabilities. Language regarding the right to modify Licensed Materials should also be added if you knowingly license resources that are not ADA compliant.

This statement can be omitted for redundancy if the vendor has agreed to a Fair Use/No Diminution of Rights clause elsewhere in the contract, as modifying materials for accessibility purposes is considered a fair use.

If the vendor objects to an accessibility warranty because the Licensed Materials are hosted by a separate content distributor/platform and they can’t control how the Licensed Materials are presented, you can ask them to warrant that the materials are accessible at the time they are provided to the content distributor.

Tricks and traps:

If vendors object to conforming to state/federal law, it’s helpful to remind them that they have to comply with federal disability laws whether they warrant to or not. You can try just removing the mention of state laws first, especially if the vendor is not based in the same state as the Licensee. Ultimately, if the vendor won’t agree to compliance with the law, it’s acceptable to strike the entire statement, since they’re bound by the law regardless. Silence on accessibility does not protect the vendor from meeting the requirements of accessibility statutes.

Similarly, any version of making “reasonable effort” to comply with federal or state laws does not change the fact that vendors must comply. Note, by contrast, that vendors are not independently obligated to comply with WCAG (as a state government institution, you might be obligated to comply with WCAG standards, but the providing publisher may not). So if you want WCAG compliance at a certain level, you must so state in the agreement. In the event of a lawsuit, what constitutes “reasonable effort” for compliance with WCAG would be up for debate, so this is not preferred language.

Where “reasonable efforts” are useful, however, are as a compromise phrase relating to the vendor’s obligation to resolve accessibility complaints—i.e. the vendor will use reasonable efforts to resolve accessibility complaints.

Finally, the entire statement regarding accessibility laws can be removed if it is an issue that would stop the agreement from moving forward, but it’s then valuable to assert the Licensee’s right to modify materials for any lawful purpose.

Importance and risk:

An accessibility warranty provides you with a safety net, so that if the vendor doesn’t comply with accessibility standards they will be held liable for breaching the contract and you can claim damages, if appropriate. In the event of a lawsuit from a third party regarding an accessibility complaint, you’re less likely to be held liable if you can rely on the vendor’s accessibility warranty.

Lastly, though not as good as a warranty, a VPAT demonstrating that accessibility is planned during the term of your agreement, could potentially serve as a representation of future compliance upon which you rely.