RAQs: Recently Asked Questions

Topic: Oral history transcriptions and the ADA - 5/19/2020
When publishing Oral Histories to a Digital Exhibit, such as Omeka, are we required by A...
Posted: Tuesday, May 19, 2020 Permalink

MEMBER QUESTION

When publishing Oral Histories to a Digital Exhibit, such as Omeka, are we required by ADA to include a full transcription of the interview in the metadata? Is a Time Summary sufficient?

WNYLRC ATTORNEY'S RESPONSE

Ugh.

Not only is the answer to this “maybe,” but I am afraid the answer is actually “maybe maybe.”  And it might even have to be “Maybe maybe maybe, maybe.”  But hang in there, because I think I can still give you some solid information in reply! (Maybe.)

Oral history projects—exhibits and collections using audio and video recordings to tell a story in participants’ own words--provide invaluable access into the culture and experience of particular people, at a particular place, during a particular time.  Using direct representation, with only the mediation of the recording, they can show emotion, capture dialect, and put a subject in control of their own story.[1]

Hosting such stories online is a great way to bring unique perspectives and individual experiences to a broad audience who might not be able to access a physical museum.  But as the member’s question points out, not everyone has equal access to audio or audio-visual online content.  So what are the precise ADA obligations pertaining to an oral history exhibit’s audio components?

As the word “maybe” implies, there is no bright-line answer.

Libraries, museums and archives collecting and curating oral histories all have different obligations under the Americans with Disabilities Act.  Some institutions will fall under the obligations governing government entities. Others will fall under the law and regulations governing places of public accommodation. Still others will have accessibility considerations arising from acceptance of federal grant money, or operation as an educational institution or health facility.

And finally, some institutions may develop an oral history exhibit along with a community partner, splitting duties regarding collection of stories, arrangement of information, construction of the on-line exhibit’s functionality and web presence, and ongoing hosting.  And any one of those split or shared duties, regarding audio, could have implications for access under the ADA.

But while there is no bright-line answer, there is some great guidance out there on this topic, and if that guidance is followed as closely as possible, it will not only reduce the risk of an ADA violation, but perhaps also enhance an oral history exhibit.

To design an oral history project that will have a high likelihood of complying with the ADA, the project developers have to be thinking about access from the start.  This means, before the project budget is fully allocated, before the contracts are awarded, before the online platform for a project is selected, or before any contributor terms are settled, access for those with a disability has to be considered up-front.

Fortunately, pre-planning and clear methodology are the hallmarks of all serious oral history projects.  This is due to the great professionalism of those who are committed to this medium, who have developed an array of ethics, legal considerations, and guidelines for such projects.

Any member considering an oral history project should check out the excellent guidance at https://www.oralhistory.org/?s=ethical+guidelines (the statement of ethics developed by the Oral History Association) as well as their institution’s own ethics policies and guidelines.  Any agreement with a collaborator or contributor should also reference the ethics/access criteria for both parties, as well as for a particular project.

For compliance with the ADA, what are those guidelines?  There are any number of them, but I’ll go with what I consider the Gold Standard: The US Department of Justice, which investigates alleged violations of the ADA, guides web developers to the World Wide Web Consortium’s (“W3W”) Web Accessibility Initiative (WAI), which sets forth clearly developed standards for web content accessibility.

What does WAI say about the issue of audio content?  A lot.  Further, what the WAI has to say is so well-developed and nuanced—addressing just about every permutation you can think of (speaker reading from script, spontaneous speech with one person, spontaneous conversation, both audio-only, and audio-visual)—that the best thing I can do is send you to their guidelines:

https://www.w3.org/WAI/WCAG21/Understanding/audio-only-and-video-only-prerecorded

As you’ll see in the “Standards,” just as the member suggests, sometimes a textual timeline might be sufficient.  Other times, a transcript of the complete audio content should be available.  And while this information can be part of the metadata, the manner in which the exhibit interacts with the user’s browser will be just as critical (for oral history exhibit developers who are actually developing the front end of an exhibit, here is what the USDOJ looks for : https://www.justice.gov/crt/web-page-accessibility-checklist1).

To use the member’s specific example, there may be times when simply a timeline of the information is sufficient.  If, however, the way the person is describing the events, or the particular language or dialect they are using is part of the value of the exhibit, the content should be fully transcribed.  The standards used to make that call should be part of the design of the project.  For contributors sending an exhibit in to larger work, the host should be the one to set the criteria. 

Now: I appreciate that not every oral history project, or every institution undertaking one, will have the budget or professional support to create W3W-informed access content.  And while transcription gets easier and faster every day, not every project will have the capacity or need to use that, either.

Some oral history projects are very small.  Some projects involve simply wanting to record different experiences of the people in a town, enjoying their Public Library, and put them on the library website.[2] For those projects, the more modest resources and needs of the Town will govern the ADA obligations (unless there are strict conditions under grant money).  But for larger projects connected to institutions that can be seen as having an obligation to provide such transcripts as part of a large oral project, particularly if public funding is involved, it is best to design the project to conform to agreed upon ethics, and W3W’s standards for Accessibility.

Again, this requires consideration at the front end of the project, and needs to be built into the budget and the procurement.  It also needs to be built into any agreements for outside contributors (which the question hints at). 

As the W3W guidelines point out, this will not only ensure the accessibility of your project, but will help people and institutions who do not speak the language of the person in the audio or audiovisual content to use your oral history project in their own research. The fact that this will also give you a better project is an incidental benefit of designing for inclusion!

Thanks for a great question.



[1] Through the magic of editing selective footage, an oral history project can also directly subvert these goals, but let’s assume anyone reading this is using their powers for good.

[2] Some would debate if this would be called an “oral history” project.  Out in the field, I have encountered many uses of that term, and some of them are very informal, or minimally funded, so I am including that as an example.

Tags: Accessibility, ADA, Digital Exhibits, Omeka, Oral Histories, W3W, WAI

Topic: ASL Interpreting Services and Legal Recourse for Service Cancellation - 6/19/2019
Greetings. We have used an ASL Interpreting service a few times over the past few months...
Posted: Wednesday, June 19, 2019 Permalink

MEMBER QUESTION

Greetings. We have used an ASL Interpreting service a few times over the past few months and have had a situation occur twice where the patron cancelled their visit with our library 2 hours before the appointed time. The service we are using requires a 48 hour cancellation notice or else we get invoiced for full service. Is it legal to forward that charge on to the patron as they are the party who cancelled the service? If this behavior becomes habitual (a request is made, the patron cancels past the 48 hour minimum time frame, we get invoiced), does the library have any recourse per ADA compliance law?

WNYLRC ATTORNEY'S RESPONSE

This question has two parts, so I will re-state them for clarity:

Is it legal to forward that charge on to the patron as they are the party who cancelled the service?

Answer: no.

If this behavior becomes habitual (a request is made, the patron cancels past the 48 hour minimum time frame, we get invoiced), does the library have any recourse per ADA compliance law?

Answer: yes.

For more on both of these, see below!

This submission to “Ask the Lawyer” is a good companion to a recent query about arranging ASL interpreters, posted under the title “ADA Compliance When Screening Movies” (we’ll call it “Screening Movies”), on January 7, 2019. 

“Screening Movies” sets out some of the fundamentals of ADA compliance in the ASL interpreter realm, so as a foundation for the answer to this question, please take a look at it for some essential background.

[We’ll pause while you read “Screening Movies” and absorb the basics.]

Okay, have you got the fundamentals of ASL-related ADA compliance?  Great!  Now we’ll move to the advanced work required by these questions.

The answer to the member’s first question is “No,” because, per federal regulations[1]:

 (c) Charges. A public accommodation may not impose a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of measures, such as the provision of auxiliary aids….

While any regulation is of course open to interpretation, the United States Department of Justice—the body charged with enforcement of the ADA—offers this commentary on surcharges related to accommodations:

One medical association sought approval to impose a charge against an individual with a disability…where that person had stated he or she needed an interpreter for a scheduled appointment, the medical provider had arranged for an interpreter to appear, and then the individual requiring the interpreter did not show up for the scheduled appointment. Section 36.301(c) of the 1991 title III regulation prohibits the imposition of surcharges to cover the costs of necessary auxiliary aids and services. As such… providers cannot pass along to their patients with disabilities the cost of obtaining an interpreter, even in situations where the individual cancels his or her appointment at the last minute or is a ‘‘no-show'' for the scheduled appointment. The… provider, however, may charge for the missed appointment if all other[s] … are subject to such a charge in the same circumstances.

In other words, cancellation fees or other obligations imposed upon the general public can be equally applied to those who require ADA accommodations, but any charge specifically related to an ADA accommodation cannot. 

There are, however, several ways to address the need of Deaf and Hard-of-Hearing users to change their arrangements.

1.  Renegotiate your interpreter contract to shift away from cancellation fees

This of course requires cooperation by your ASL agency, but it is feasible. 

One approach is to use a contract that guarantees a base or “stand-by” rate that is assured to your provider (regardless of utilization). For example, for $####/year, your organization gets ### hours of services, in up to ### separate instances; this amount is paid not matter what. 

This gives both your library, and the provider, some fiscal stability as you serve the needs of your community.  It is an approach that might not work for libraries with small budgets, but collaboration with a system, council, or network can sometimes use this approach.

2.  Renegotiate your contract to tighten the cancellation window and reduce the fee

24 hours’ notice and a cancellation fee (not paying for the whole service value) is much more reasonable!

Again, this requires cooperation by our agency, and in you location, it might be a seller’s market.[2]  But it doesn’t hurt to negotiate![3]

3.   Know your budget

As described in “Screening Movies,” the obligations of libraries will vary wildly from institution to institution.  What might be “reasonable” to a large urban library might be an “undue burden” [4] for a small village library with a much smaller budget.  But no matter the size or budget, as “Screening Movies” states, every library should have an accommodations plan—and that plan should have a line in the library’s budget.

When a library has a budget for routine ADA accommodations (as opposed to one-time capital improvements or ad hoc needs of employees), it can help provide users with meaningful information about the libraries ability to provide those services.  It can also position your library to show if the cost of an accommodation truly would be an “undue burden,” (and thus not an obligation) as defined by the ADA.

For members of the Deaf and Hard-of-Hearing communities, access to information is critical, and a public library’s commitment to assuring it is vital. 

The member’s foresight and attention to stewarding this resource and making it as accessible as possible is exactly what is required.  And as can be seen, just as critical is finance committee and budget input on how to make the most of assets and budgets that help assure access and legal compliance.

 



[1] 28 C.F.R. § 36.301 “Eligibility criteria.”

 

[2] A good resource when considering an interpreter contract is here: https://rid.org/about-rid/about-interpreting/hiring-an-interpreter/.

 

[3] I don’t mean to imply that this member didn’t negotiate.  In my experience, librarians are often tough and forward-thinking hagglers.

[4] Undue burden means significant difficulty or expense. In determining whether an action would result in an undue burden, factors to be considered include –

  • (1) The nature and cost of the action needed under this part;
  • (2) The overall financial resources of the site or sites involved in the action; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements that are necessary for safe operation, including crime prevention measures; or the impact otherwise of the action upon the operation of the site;
  • (3) The geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity;
  • (4) If applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and
  • (5) If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity.

Tags: Accessibility, Laws, ADA

Topic: ADA Compliance When Screening Movies - 1/7/2019
This question has 2 parts:  1. Public Libraries often show movies/films under the auspices...
Posted: Monday, January 7, 2019 Permalink

MEMBER QUESTION

This question has 2 parts: 

1. Public Libraries often show movies/films under the auspices of a public viewing license. A question arose regarding ADA compliance: Does the film have to be shown with closed captioning? What if closed captioning is not an option.

2. When a program is given in a public library does a deaf interpreter have to be provided for every public program? OR is there a time-frame of notification - that is to say, if the library is notified an individual expecting to attend a program requires a deaf interpreter, one must be provide. What is considered an acceptable time-frame of notification? Should this be posted - if so where is it required: Website? 

Thank you for your assistance in this matter.

WNYLRC ATTORNEY'S RESPONSE

This is an important submission, because access is the mission of every library, and access is the purpose of the ADA.  When it comes to ADA accommodations, an institution’s commitment should always be: plan for access.  

Under that principle, the answers to the member’s questions are:

  • When showing a movie, always use some type of assistive technology to ensure accessibility.
  • When having a large-scale event, always budget and plan for an ASL interpreter.
  • To ensure people can advise the library of the need for specific accommodations, have a well-developed and publicized accessibility policy.

By planning for access, an institution can never go wrong under the ADA.

But the member wants to know: when planning for access, what does the law specifically require?

As always, what the law requires can depend on a lot of different factors.

The ADA and its enabling regulations do expressly require certain entities to use captioning technology.  For example, all commercial movie theaters (except drive-ins), and all televisions built after 1993, must include captioning tech. 

But while a specific requirement for captioning has been an important asset for the Deaf and Hard of Hearing communities for decades, libraries are not on the list of legislated adopters.  Rather, just like any other place of “public accommodation,” libraries have a broader mandate; they must ensure “…no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services….”  

In other words, while captioning is not expressly required at a library, accommodations are.

The ADA doesn’t always mandate the precise means of accommodation; captioning can be but one of the many ways a library ensures a Deaf patron can access a movie.   What’s important is not the precise accommodation, but the removal of a barrier to service.  

That is why a big part of ADA compliance is not just following narrow rules (although there are plenty of those, especially when it comes to design of new buildings or the mass purchase of technology), but keeping up with and considering all available options for access. 

How can a library easily assess all those options?   A great resource for learning about the latest ADA accommodations—organized alphabetically by disability—is AskJAN.org.[1]  Although created primarily for employers (the “JAN” stands for “Job Accommodation Network”), JAN is an invaluable jumping-off place for learning the specific barriers a person with a disability may face when trying to access a service, and how a provider can remove those barriers…within that provider’s budget. 

For example, a search of “deafness” on AskJAN shows—among many other things—an array of “real-time captioning” services, together with providers and a description of how they work; this allows for comparative shopping and a more nuanced use of services.  To use the member’s movie example: if the only version of a movie a library wants to show doesn’t come with captioning, a resource like AskJAN can help find an alternative—which is what the library is required to do.

Which brings us to the heart of the member’s question: what are a library’s specific obligations?  At the start of this answer, I have used the lawyer’s go-to response: “it depends.”  But what does it depend on?

Precise obligations under the ADA vary based on institution type, size and budget.  For example, a very large municipal library with a relatively large budget and older facility should address accessibility questions through their ADA Title II-mandated self-evaluation, compliance policy, and complaint procedure; such an institution should also have to have a “responsible employee” overseeing that procedure.  This is because ADA Title II, which applies to government bodies and agencies, expressly requires a government agency to have those resources in place.[2]

On the other hand, a small association library with a small budget and a new building will fall under different sections of the law, and have somewhat different obligations.

But no matter what section of the ADA applies, the goal remains the same: to not deny service if there is an aid or adjustment that can help…unless that aid or adjustment would fundamentally alter the service, or be an “undue burden” (i.e. too expensive or difficult[3]). 

This is why every library should have a custom-tailored[4] accessibility policy guiding the library’s planning for ADA-related operations (which, at a library, are practically all operations).  While such a policy can take time to implement, and must be updated from year-to-year, in the end it is both a respecter of people and a time-saver, taking the painful guess-work and last-minute planning out of ADA compliance, and helping a library plan for access for all. 

For instance, as suggested by the member, such a policy can set a threshold for when events will automatically have an ASL interpreter, and when/how a patron can notify a library about an accommodation needed at a smaller event.  Further, it can ensure there is a budget line to pay for such accommodations, and that staff are trained and ready to answer accommodations-related questions gracefully. 

A thorough, custom policy will not only pinpoint a library’s specific ADA compliance obligations, it will make sure:

  • the library is not making ADA decisions ad hoc (a recipe for a law suit);
  • that its documentation shows compliance if a violation is claimed;
  • that ADA accessibility is built into budgeting, staffing, training, purchasing, and event planning;
  • that the institution is placing the needs of all patrons at the forefront of planning.

If a library doesn’t have such a policy, forming an ad hoc “accessibility committee” comprised of both staff and board members[5], and an attorney, should be a top priority.

How can that play out?  Let’s return to the member’s scenarios. 

With a policy guiding the way, the answers to the member’s questions would unfold in a methodical way.  The library would check the latest alternate assistive technology in the early planning stages of the event.  Consulting AskJAN, they might determine that perhaps remote CART[6] technology can help, and their planned budget line would pay for it.  If the projected attendance is under the threshold set by the policy (determined by considering the library’s area of service), there is no automatic ASL interpreter; however, the publicity and posted policy will include the ways attendees can notify the library of any necessary accommodations.

If, after the movie, there is a complaint about ADA compliance, the policy and documentation showing it has been followed will help resolve the complaint in its early stages.   But more critically, the details of the event will reduce the risk of such a complaint,  since any person who needed accommodation had access that was both well-planned and easy to arrange. 

Thank you for these important questions.

 


[1] https://askjan.org/a-to-z.cfm

[2] An example of the consequences of non-compliance can be found here: https://www.ada.gov/sacramento_ca_settle.htm.

[3] This legal language “undue burden,” causes some of the most painful moments under the ADA.  When a small, budget-challenged institution is forced to call a necessary accommodation a “burden,” no one feels good.  Sometimes the law picks the wrong work; I would have gone with “unduly disproportionate.”

[4] Although seeking inspiration from similar institutions can be a great place to start, an ADA policy is not a document to cut-and paste from another institution. 

[5] Page 62 of the 2018 “Library Trustees Handbook,” is a great resource for a library directors who need to give trustees an summary of the magnitude and importance of this issue.

[6] Communication Access Real-time Translation.

Tags: Accessibility, Laws, ADA

The WNYLRC's "Ask the Lawyer" service is available to members of the Western New York Library Resources Council. It is not legal representation of individual members.