DREAM ITN
Final Deliverable
Ieva Eskytė
Faculty for Education, Social Sciences and Law, University of Leeds
Supervisor: Professor Mark Priestley
DREAM work package: Enhancing the Rights of People with Disabilities as Consumers
of retails services available to the public
April, 2015
1 1.
Introduction to my Topic & Research Questions.
The United Nations Convention on the Rights of Persons with Disabilities (CRPD) (2006)
obliges State Parties to promote and achieve accessibility across the board for disabled
people. While different articles address areas such as access to employment, independent
living, websites, and information, article 9.2b tackles customer goods and services. Since the
ratification of the Convention, national governments and the EU are obliged to identify and
eliminate barriers to accessibility to mainstream goods and services through minimum
standards and guidelines, training assistance and support, and so on. While the main emphasis
is on market practices, the responsibility of the provision of the framework within which
private entities should introduce and promote equal and accessible customer service is placed
on national governments and the EU. Specifically, MS are required ‘to ensure that private
entities that offer facilities and services which are open or provided to the public take into
account all aspects of accessibility for people with disabilities’ (art.9.2b). But how is this
best achieved? What impact do EU policies have and how does the situation compare in
different European countries? How can governments ensure that the private market becomes
more accessible for disabled people? Aiming to answer these questions, the research project
engaged disabled customers, industry players and disabled people’s organisations to reflect
and share the knowledge, experiences, and positions. While this allowed the reality of market
accessibility to be revealed, the rhetoric was addressed through the analysis of global,
regional, and national policies and instruments, shaping private sector providers and civil
society’s commitments to and activities with regard to accessibility and disabled customers’
rights. Recalling the focus of the DREAM project and the CRPD requirement to provide
access to information and communication technologies and systems (ICT) (art. 9), the ICT
market was treated as a case study for the accessible markets across the EU.
Due to limited space for the discussion, this paper is not able to provide a full-fledged answer
to the questioned outlined above. Indeed, it focuses on the process in which the data was
gathered and sheds light on the ways global, regional and national policies shape industry and
civil society’s positions toward disabled people as customers and markets accessibility. It
suggests that while the stakeholders acknowledge the need for more accessible practice
across the EU markets, global, regional and national instruments play different role in
shaping these knowledge sets and positions, as well as actors’ empirical actions. In addition,
some tensions between global, regional and national instruments are detected. The discussion
demonstrates that while globally disabled people are perceived as equal customers, having
2 the same rights as non-disabled individuals have, regional and national policies construct
them as ‘vulnerable’ customers and contradict with the position established in the CRPD.
Likewise, national governments do not take systemic actions to eliminate disabled customers’
exclusion and in some cases provide a framework for inequality and marginalisation to
emerge. Drawing on broader results of the research, it seems that harmonised and together
developed legal instruments, focusing on partners’ collaboration and learning from each other
may encourage more positive changes in policy rhetoric and the reality of markets
accessibility.
The discussion starts with an overview of the research process, highlighting similarities and
differences between the initial research plan and the actual research activities. It also
addresses methodological changes and challenges, experienced during the research, and
briefly discusses how the process itself provided some insights into the relationship between
the stakeholders and regional policies, and how the existing gap between accessibility
rhetoric and reality could be fulfilled. After this, the paper draws on a small bit of research
results and extracts the data illustrating how global, regional and national policies shape
industry and civil society’s positions toward disabled customers and the accessibility of the
EU single market. The paper concludes with the provision of broader insights reflecting the
results of the entire study and focuses on how and why the collaboration between and the
involvement of different stakeholders in the policy-moulding process may lessen the gap
between the rhetoric and reality of accessible markets.
2.
My Research Journey.
This section charts the path that the study took, addressing differences between the initial
research proposal and the actual research activities, unexpected challenges, and strategic and
opportune aspects of the research process. While the following subsections link these
dimensions with separate stages of the study and provide a more detailed exploration, it
should be noted that the final research design conceptually has remained similar to the initial
proposal. The original idea was to conduct policy document analysis and to involve the main
actors that play a part in shaping accessibility to the EU private market. Specifically, the
participants were disabled people, national and international disabled people organisations
(DPOs and IDPOs), manufacturers, national and international ICT business representatives
(IBR), and shop personnel. It was decided to involve these groups of stakeholders as
3 following the CRPD and Habermas’s theory of communicative action (Habermas, 1984,
1985); one of the research aims was to bring the parties ‘in one room’ and to enable them to
indirectly communicate about accessibility-related practices and perspectives. In this way, it
was revealed how the actors adapt, negotiate, or resist State interventions that promote or
require accessibility rights; which policies work and which do not; and what the factors are
for success or resistance. In addition, such an approach revealed the stakeholders’
expectations and uncertainties as well as potential ways for involvement, which would bring
more positive and human rights—oriented outcomes than current governance tools and
instruments.
While the concept of the research remained unchanged, there were two general-nature
vicissitudes. First, research locations have changed. While the initial research proposal aimed
to illustrate the accessibility of the EU markets by focusing on Poland, Latvia, France, and
England, in the final research design Lithuania and the United Kingdom were selected as the
key-informant countries. Although historical, economic, and market criteria for the original
country selection were valid and reliable, it was decided to select Lithuania and the United
Kingdom, due to the methodological changes that are discussed in the following subsections
and the decision to compare disabled people’s customer experiences living in similar cities
but in socially, historically, and economically different countries.
The second general-nature change addresses methodological adjustments. For the purpose of
this paper, these are examined in the context of the research process and are addressed in the
following sub-sections. First the light is shed on policy document analysis aiming to provide
some insights into rhetoric of the EU accessible markets. Then the attention is drawn on the
methods employed to identify the reality of EU markets accessibility.
- Presenting the accessible markets ‘rhetoric’: policy document analysis
Language plays an important role in the creation of disability (Barnes, 1991). Hence, the
initial plan aimed to reveal State policy positions to disabled people and private sector
providers by analysing legal language and conducting policy document analysis. While the
initial proposal focused mainly on national instruments addressing customer rights, in the
actual research global (CRPD, US), regional (EU), and national (LT, UK) documents,
targeting customer rights and protection, accessibility of public spaces, retail outlets, and
ICTs, as well as general principles of disability policy were examined. In both cases the
purpose was to detect the way disability and disabled people are defined in the context of the
4 mainstream private market, and what are legally established rhetorical pre-conditions for
creating more accessible EU single market.
Aiming to detect underlying legal norms and rules (Henn et al., 2006) that may impact
industry and civil society’s obligations and interactions as well as disabled people’s customer
experiences, voluntary and binding instruments of the EU were analysed. This allowed the
revelation of the strengths and weaknesses of two types of legislation and the ways they may
be used for incentivising the actors to innovate and produce greater knowledge toward
accessibility. In addition, since the EU negotiation settings are characterised by high levels of
institutionalization and socialisation (Lewis, 1998), the analysis of soft and hard law enabled
detecting broader conditions for shared meanings and the communication and collaboration
practices among the actors to emerge.
The identified legal framework was used not only as a starting point for understanding and
interpreting the involved parties’ interactions but also as a final destination, which is
addressed in the end of the research. Specifically, the barriers and potentials in the system,
preventing from or encouraging the actors for the engagement in accessibility debates and
practices across Europe, are identified. While the original proposal alongside policy
document analysis aimed to conduct focus groups with policy makers, the actual research
employed participant-observation method. The decision was informed by the knowledge
gained during the DREAM network training events and internships at international
organisations representing disabled people and ICT industry across Europe. Specifically,
some potential latent tensions between policy makers, representing particular areas of
legislative bodies, industry and DPOs, were revealed. In addition, undergoing European
Accessibility Act–related (EAA) debates bring some tensions and uncertainties to the field.
Hence, a direct involvement of policy makers as participants could increase the mistrust and
the resistance of industry and civil society informants. At the same time, the opportunity to
attend different policy development-related events and meetings during the internships
provided a great field for participant observation, which enabled identifying dominant strands
and perspectives with regard to policy makers’ positions on and knowledge about
accessibility, disability, and disabled-customer rights.
The results of this research stage assisted in shaping the framework for research activities
with disabled customers, industry, and civil society. Interview questionnaires were founded
5 on the results of policy document analysis and acquired data was interpreted in the light of
the aforementioned instruments.
- Presenting disabled customers’ reality: mystery shopping and interviews with
shoppers with impairments
The first stage, which aimed to reveal the reality of the EU accessible mainstream private
market, addressed disabled people’s empirical customer experiences. The exploration of
shoppers with impairments’ personal accounts was determined as the second stage of the
study in both initial and actual research plans. Despite this consistency, the stage has had
several methodological changes. The initial research plan aimed to combine focus group and
biographical methods. However, literature review, policy document analysis, DREAM
trainings, courses at the University of Leeds, and participation in conferences and other
external events led to the conclusion that in order to gain deeper insights into empirical
domain (Bhaskar, 1975) of shopping, other methods have to be applied. This decision was
also supported by the initial aim to reveal a diversity of customer experiences in a shopping
process and not purely focus on barriers encountered by people with a particular type of
impairment in a retail outlet. As a result, it was decided to use methods that wake and
stimulate participants’ experiences, enabling them to negotiate these experiences as they
unfold and not just narrate them afterward. With this in mind, prior to describing customer
experiences via interviews, the informants were invited to participate in mystery shopping.
Mystery shopping is a form of participant observation where the researcher interacts with the
research participants being observed and stems from the field of cultural anthropology
(Miller, 1998). The adoption of this method provided benefits such as identification of
different service-delivery elements on natural conditions (Grove and Fisk, 1992) and the
overcoming of the discrepancy between real and reported behaviour (Friedrichs et al., 1975).
It also served as a reliable tool to test whether customers are treated equally or discriminated
against (Morrall, 1994, Wiele et al., 2005). Furthermore, it enabled identifying the key stages
of disabled people’s shopping process and revealed how the focus of the State and the market
on an ‘average’ citizen and customer marginalise and exclude people with impairments and
convert them into ‘vulnerable’ consumers.
Semi-structured interviews followed the mystery shopping. This phenomenological approach
allowed identifying meanings that people ascribe to the shopping process and outcomes
6 (Gray, 2009), captured participants’ perceptions and opinions about their experiences en
route to the shops (Arksey and Knight, 1999), and revealed more detailed responses and
clarifications of the reasons and motives behind the customer choice and decisions. The
interview schedule included a number of questions aimed to reveal practical experiences and
examples of how the norms established in global, regional, and national policy documents
may be experienced and shape disabled people’s customer patterns. Since it was also
intended to reveal the elements of an accessible shopping chain, the included topics addressed
informants’ experiences in accessing customer information, traveling to the retail outlet,
experiences in, and opinions about mainstream shops, interaction with shop assistants, and
accessibility of ICTs. It is important to note that although accessibility of home environment
and personal assistance schemes were not directly addressed in the interviews, informants’
narratives suggest that in some cases these are inextricable elements of an accessible
shopping process and equal customer experience.
Aiming to ensure the highest accessibility of the research process, elements such as question
type, wording, language, translational differences, and ethical sensitivity were considered
(McNamara, 2009, Turner, 2010, Bryman, 2012, Mason, 2002, Viruell-Fuentes et al., 2011).
In addition, different means and methodological decisions have been applied in order to make
mystery shopping and interviews accessible to people with vision and hearing impairments
and learning difficulties.
It is important to address data collection-related experiences that reshaped some of the initial
activities and seem to be linked with policy processes and rhetoric. Specifically, while in
both countries, the purposive sampling was combined with snowball sampling, the process
itself as well as the techniques for accessing potential informants differed. While the majority
of the participants in Lithuania were contacted through the gatekeepers in DPOs or disabled
people sport clubs, this strategy did not work in the UK. As a result, additional techniques,
such as advertising on e-mail lists, e-newspapers, Internet message boards, and Facebook
were employed, which might exclude people who have no access to the Internet. It seems that
current policy changes and finance cuts for the third sector in the UK are important reasons
behind the situation. The majority of the approached organisations in the UK noted that, due
to finance cuts, they are in shortage of human resources and are not able to assist in accessing
potential participants. As a result, out of thirty-eight disabled customers, twenty-seven were
from Lithuania and eleven from the UK. While an unequal number of participants in the two
countries may be treated as a limitation, it is important to note that participants were treated
7 as one group of informants, representing different geo-political, social, situational, and
private market contexts of the EU. The emphasis was on data saturation and not on the
achievement of a statistically representative number of the informants. In total, thirty-eight
disabled customers took part in the study. Twenty of them were females and eighteen males.
The sample included people with different types of impairments, such as vision, hearing,
mobility, learning difficulties, and mental health conditions. The participants were between
eighteen and seventy-nine years old, of different ethnic origin, and of different position in the
labour market. Hence, it can be argued that the results are likely to have shown practices in a
relatively representative and valid light. All the informants were introduced with a research
purpose and process and were given a written consent to take part in the study.
- Presenting reality of the mainstream private market: interviews with the EU ICT
industry and Disabled People’s Organisations
When disabled customers’ empirical experiences were revealed, the study shifted the
attention to the ways in which the private-sector enterprises, providing goods and services,
adapt, negotiate, or resist policy interventions that promote or require accessibility rights.
Additionally, the roles played by the EU ICT business representatives and DPOs in
innovating and producing knowledge regarding what works in the private market were
addressed. These goals were identical in the initial and actual research plans, but the way they
were approached slightly differed. The initial proposal operationalized these by addressing
the private sector providers’ understandings about and positions toward disabled people as
customers and interaction with them, and their understandings of the obligations and
responsibilities under regional and national policies. The actual research addressed these
dimensions but also introduced three additional elements: stakeholders’ communication;
access to the discourse; and power relations. At this stage, a great attention was paid to
designing credible interview guides to each group of informants. The questionnaires for all
the stakeholders were framed within Habermas’s theory of communicative action (Habermas,
1984, 1985) and were linked with the results of global, regional, and national policy analysis.
Although the idea and the aim behind the content and the framework were similar, the
questionnaires for each group were constructed to meet informants’ professional realities and
experiences, as well as the legal contexts, within which they operate. Hence, as advocated by
Niemann (2004), the interviews employed a similar protocol of asking questions, but the
provided questions themselves were not identical and parallel with one another.
8 As in the case of research activities with disabled customers, this stage also introduced some
unexpected experiences and insights. The most important was the resistance of industry
players to take part in the study. Prior to this stage, potential challenges and limited business
players’ interest in the study were forecasted. With this in mind, it was decided to approach
ICT manufacturers and national ICT business representatives during the internship at the
organisation, representing ICT industry at the EU level. However, after exhausting different
means and channels, only one manufacturer agreed to take part in the research. The motives
for the refusal of the potential informants were based either on political and internal policyrelated reasons or on limited experience in the field. It was also evident that undergoing
discussions on and processes related with the EAA introduced some tensions and mistrust
among the stakeholders as well as may regulate their participation and involvement in ‘outside’ research and knowledge sharing.
While the discussed context and methodological decisions address the whole study, the
following section draws on a smaller topic, addressing how global, regional, and national
policies may shape international and national industry players and DPOs’ positions and
responses to market accessibility and disabled people as customers and equal participants of
the EU single market.
- Disabled customers and accessibility: the role of global, regional, and national policies
The CRPD provides a global human rights context, within which disabled people are
recognised as equal participants of the mainstream private market. State Parties are obliged to
‘take appropriate measures’ and provide access to the private sector through the removal of
barriers and the provision of appropriate measures. The underlying principle of equality
across the CRPD and particularly in article 9 (Ferri, 2010, Kayess and French, 2008, Lawson,
2010) suggests that private providers should expect and respect a diversity of customers with
impairments and treat them on equal basis with non-disabled market participants (Kayess and
French, 2008). Hence, alike elimination of social exclusion (Ferri, 2010) and promotion of
personal autonomy (Mégret, 2008) are enshrined between the lines of the Convention,
accessibility of the private market and equality of disabled people as active market
participants is legally established at the global level. The Treaty redraws the historically,
socially, and politically shaped portrayal of disabled people as ‘wasting’, ‘special’, ‘passive’,
‘demanding social welfare’, or ‘vulnerable’ market participants. On the contrary, it positions
9 them as active, equal, and demanding customers, exercising equal rights as non-disabled
citizens and customers are.
The situation and position toward disabled customers’ equality and market accessibility differ
at the regional level and some tensions between global, regional, and national instruments
may be observed. The customer for the private goods and services in the EU single market is
defined as someone ‘acting for purposes which are outside his trade, business, craft or
profession’ (EC, 2011, art. 1). Although the concept is not entirely consistent across all EU
instruments, this common core is typical for contractual (EC, 2008b) and non-contractual
obligations in law (EC, 1999), as well as for procedural (EC, 2000, EC, 2008a) and customer
protection–oriented (EC, 2011) legal instruments. Seeking to ‘promote the interests of
customers and to ensure a high level of customer protection’ (EC Treaty, art. 153), the
European Community (EC) established the fundamental principles of customer protection
and acknowledged the existing distortive practices within the private market, as well as
defined two groups of customers: namely, ‘average’ and ‘vulnerable’. When ‘average’
customer-protection measures are applied, the emphasis is on market practice, which
‘materially distorts or is likely to materially distort the economic behaviour with regard to the
product of the average customer whom it reaches or to whom it is addressed’ (EC, 2005, art.
2b). However, measures established in the same instrument distinguish ‘vulnerable’
customers, including people with impairments, as requiring particular protection due to
vulnerability ‘because of their mental or physical infirmity, age or credulity’ (EC, 2005, art.
5.3). The tendency to categorise market participants into ‘average’ and vulnerable’ is
common across the EU MS, including Lithuania and the UK. Here disabled people are
defined either as ‘socially vulnerable’ or as ‘vulnerable’ customers. Furthermore, the majority
of the measures for creating more accessible markets seem to be shaped by having the
individual model in mind.
While the discussion above provides some insights into the tensions at global, regional, and
national levels between customer vulnerability and full participation as equal customers, the
following subsections broaden the debate and provide some empirical evidence from the
interviews with national and international DPOs, ICT producers, international ICT business
representatives, and national ICT sellers. It focuses on how different global, regional, and
national policy instruments may impact the stakeholders’ activities and how this moulds their
positions toward and actions with regard to disabled customers and accessibility that is
directly linked with their customer vulnerability. This paper draws on strengths and
10 weaknesses of current policies, respectively promoting or limiting accessibility practices in
the market.
The discussion starts with an exploration of the CRPD and some accessibility requirements
from the US. Then it moves on and focuses on regional (EU) legal instruments and the
impact of binding and voluntary legislations. The section concludes by discussing the role of
national policies and the way they may create conceptual and empirical disabled customers’
vulnerability.
- Global regulations
With regard to global regulations, the main emphasis in informants’ narratives was on the
CRPD and accessibility-related instruments from the US. While none of the industry players
mentioned the Convention, the IDPO identified it as the most significant instrument framing
the content and the streamline of general activities as well as actions related with the EU
markets’ accessibility. When asked about the reasons, which led to being interested in this
field, the informant narrated historical developments and the way the CRPD has shifted the
conceptual understanding of accessibility:
IDPO has always been interested in that [accessibility] area, but also [tried] to be
active in areas where it could have an impact. So things developed over time. So, for
instance, at the beginning accessibility was addressed through the area of nondiscrimination so the first step there was really to have the possibility to address
issues relating to persons with disability so there was inclusion of non-discrimination
in the treaties and then legislation and initially IDPO wanted to have legislation on all
areas, but we had only [on] employment and training. Then there was work which was
done on transport, which led to having specific, because there were a lot of cases of
discrimination for people travelling in air transport, so we managed to have legislation
there and then this ended up including persons with disability in all passenger’s rights
issues in different modes. Then, with the UN Convention also, this became broader,
so little by little in ICT and other areas, it was possible to include issues relating to
persons with disability and the access. One thing was also to promote legislation on
accessibility of goods and services, which was then taken up with the Commission
who included it in their work programme and they are now trying to have this
legislation proposed. So it was taking, according to the evolution of policy-making
and trying to use the opportunities (IDPO).
11 In addition to the indicated historical and conceptual changes in understanding accessibility,
the account also provides some insights into the role played by global and regional
instruments in shaping the position and activities of the IDPO. The informant’s narrative as
well as internship experience suggests that customer rights and accessibility of the private
market is not a top-priority of the IDPO. However, it would be misleading to state that the
focus on employment, public transport, air passenger rights, and other identified areas is a
freely and expediently chosen position. Indeed, while the CRPD establishes accessibility as a
general principle and as a right, and together with other human rights translates it in a manner
that addresses disabled people’s situations (Kayess and French, 2008, Ferri, 2010), there is a
lack of regional instruments and international institutions that would provide a framework for
dense interaction patterns on market accessibility to emerge. Instruments such as
Employment Equality Framework Directive (200/78/EC), regulations on the rights of rail
passengers (Regulation 1370/2007 and Regulation 1371/2007) and air passengers’
(1107/2006/EC) address the rights established in the Convention, provide a clear rhetoric of
and instrumental guidance for these areas, and lead to more elaborated and developed
activities of the IDPO. However, a lack of regional legal instruments addressing market
accessibility and disabled-customer rights limits the implementation of the obligations
established in the Treaty and prevents the organisation from fully integrating some of the
human rights into their professional positions and activities. However, the narrative suggests
that the Convention and specifically article 9.2b may be used as a tool to shape and influence
the development of the EU legal instruments. While this reveals the power of the Convention,
it also questions the awareness, willingness, and preparedness of the policy makers working
at the EU level to address disabled customers’ rights from the social model perspective. It is
important to highlight that while at this stage policy makers’ policy development skills are
not questioned, the Community should be aware that a great part of them may lack expert
knowledge, enabling approaching accessibility– and customer rights– related issues in a way
that they are addressed in the Convention.
Research data suggests that the CRPD may shape market accessibility-related knowledge at
national levels. Specifically, the informant from the IDPO noted that this human rights
instrument not only deepens the understanding of people’s participation in the society but
also widens it by introducing access to goods and services:
I think it’s a big challenge still that we have because the organisations of persons with
disabilities they are, okay, more and more evolved with time and also a bit was non-
12 discrimination legislation, now a lot with the convention in looking at the issue from
an angle of right. So, to be able to participate, to whole of society including the access
to goods and services (IDPO).
Although the representatives of national DPOs also acknowledged the importance of the
CRPD as it enables ‘to push things forward at the political level’, none of them identified it
either as a tool to redraw national market policies and practices or as an instrument changing
the prevailing conception of accessibility. Indeed, national informants corresponded on the
regional rhetoric and referred to the Convention and accessibility in their narratives on access
to labour market, public spaces, public transport, and education. This suggests that areas,
which are heavier regulated regionally, seem to be better recognized at a national level.
Contrary to the civil society, industry actors did not address the CRPD. Instead, an important
point of reference was the US accessibility regulations. To begin with, when asked about the
original reasons that influenced the Company X’s interest in product accessibility, the
informant noted legal instruments and highlighted the role of the US regulations:
It has originally been driven by the legislation. In part of a review, there was this
hearing aid compatibility requirement already something like one year ago. And after
that, there has been legislation. And now, again, the US is at the moment leading in
legislation with this Obama act in communication media, an accessibility act coming
into force next October (Company X).
Similarly, the IBR also addressed the US legislations and identified them as an important
reason that led to including accessibility in the agenda of the activities:
And then you have, as you know, in the US, for a long time and we – standard are
being developed and guidelines and things like this. So we are – I think that’s why it’s
in our group because we looked at it more from a standardisation point of view (IBR).
The narratives above are not without some foundation. Having longer history and experience
in eliminating discrimination and assuring disabled people’s civil rights, the ADA introduced
a clear guidance on access to public accommodations and services operated and products
produced by private entities. It seems that in aiming to access larger customer groups and
generate more profit, industry is willing to comply with legislations that are not directly
related with the region of their origin. Although compliance is an on-going issue, clear, even
though minimum, guidelines and checklists are an important means of directing actors’
activities and providing more accessible practices. This suggests that a strong legal basis and
13 dense institutionalisation may serve as a framework expanding knowledge and providing a
scene for the development of more accessible products.
US regulations provide manufacturers not only with technical requirements that shape
product design decisions and process but also introduce procedures, which may assist in
expanding and reshaping the position toward an understanding about accessibility and
disabled customers. The informant from Company X provided an example of the requirement
to discuss products accessibility features in general meetings and noted that this is one of the
factors shaping the company’s commitments and activities:
We write the minutes of those so that there's a record of what we discussed. In this
US legislation, actually, there is a requirement that we take the needs of disabled
people into account and actually keep records. So [this is] a requirement as well.
But we don't do that only because of the legislation; we want to know their priorities
(Company X).
The narrative suggests that knowledge and awareness rather than a purely technical-solutions
oriented requirements may invite industry to consider accessibility not only as an additional
and compulsory feature that is addressed and included in the final product development stage
but as a part of on-going process. Such praxis allows a company’s personnel to challenge
each other’s positions and knowledge sets, discuss and learn about accessibility, and to
familiarise with disabled people as a group of potential product users and customers. In such
a context, the incorporation of accessibility features into forthcoming technologies may not
be seen as something ‘more’ or as an ‘additional burden’. Indeed, such legal incentives to
engage into the discourse and discussions provide a scene for gradual familiarisation with this
group of customers and for recognition of accessibility not only as technical features but also
as an issue of equality.
Research data demonstrates that, aiming to ensure accessibility across the EU markets,
compatibility between the US and the EU legislations is important. According to the IBR, one
of the reasons behind this necessity is the provision of globally or regionally recognisable
language that brings in clarity, structure, and a common understanding about this newly
emerging concept and practices:
I think it all becomes a bit more tricky when you have different national requirements
or different European [requirements] from the US or, I don’t know, elsewhere. So if
you stick to a global level, as a company that makes your life so much easier because
14 you know what you’re dealing with, you know exactly what the requirements are and
you don’t have to renegotiate things or make changes in the way that you operate or
how you decide to develop. So I think lots of the company that I’m involved in, have
experience of accessibility in other regions and they’d rather have it harmonised at the
global level if possible, i.e. at least have European legislation to some extent, wellbeing at least close to the requirements that we have elsewhere. Because otherwise
every region would require a new, well a tailor-made product in relation to
accessibility and again, I think we don’t believe that impairments are really different
in the US and Europe (IBR).
The informant from Company X echoed the IBR and noted that incompatibility between the
legislations of different regions may compound the activities and may have a negative impact
on the on-going developments. The narrative of the informant suggests that since the US has
longer experience in the field and to some extent dictates accessibility trends, future
legislations of the EU should take into account present practices and introduce regulations
that share a common ground with present requirements shaping world-wide activities:
It will become interesting in Europe with [the] European accessibility [act] whenever
it comes. We are a global company, so it becomes a nightmare to us if there’s a very
different legislation in all market areas. So, here, US legislation is in place, so we do
want that there’s not too much difference to Europe on this type of – it would be good
if something is not so variable in the US so that we can comply (Company X).
While the manufacturers and industry representatives addressed the compatibility between
the US and the EU regulations as an important factor ensuring more accessible practices, the
IDPO noted that the existing gap between the US and EU regulations and requirements may
serve as a ‘tool’ to shape lagging providers’ understanding and activities:
So there is, I would say it’s more and more interest because for some of them,
accessibility is becoming also sales component of the products. There is also – some
of – in the area of ICT also because of the legislation in the US, some companies
develop certain things and then other companies found themselves a little bit maybe
in a more difficult situation because they had not reacted so promptly to this. Now
they are trying to catch up so there is interest on that and we have to take advantage of
that in a positive way (IDPO).
In addition to positive practices introduced by the US legislations, manufacturing companies
critically addressed some requirements, indirectly regulating producers’ finances.
15 Specifically, the informant addressed the requisite regulating of the quantity of mainstream
technologies that have to have incorporated accessibility features. This, according to industry
actors, may not reflect the real needs of customers and has a direct impact on the
expenditures of the company:
The hearing aid requirement in the US means that when you sell a mobile phone, in
one third of the products you need to have one component here on the back that
connects to the hearing aid device. It costs about $1, this component. So if one third
of the product has a component that costs $1 and only a very minor group of people
are using that, that’s an example of not so good legislation in my mind because that’s
a waste of resources. The same money would serve those disabled people much better
in giving them really good appliances, like this type of device that they would use to
connect to the phone (Company X).
The narrative is important for several reasons. First, it illustrates how strong and clear globalmarket-oriented legislations may shape global providers’ commitments and product
development practices. They over step regional boundaries as producers, operating in other
regions and willing to access broader audiences, seem to follow clear and established
requirements, and integrate them into professional practice. This evidences that the creation
of common ground on accessibility and the employment of common language across the
sectors may have positive outcomes. However, the role played by institutions and ruleregimes in creating the framework and the starting point for such commitments and activities
to emerge should be questioned. Second, it is a potential risk that unnegotiable quantityoriented requirements, shaping manufacturers’ expenditures, may impact their accessibility
related initiatives and decisions for forthcoming products. In other words, hard law
instruments, providing strict regulations and limited space for negotiations may prevent
industry from wider initiatives and concentrate their focus on meeting legal standards and
minimal requirements.
By the end of this subsection we have seen that global instruments, which are regulating
accessibility of the mainstream private market, have a different impact in shaping the
positions and perspectives of the EU industry and civil society on markets accessibility and
disabled customers. While international civil society actors found their activities on the
CRPD, industry has limited relation with this global human rights instrument. It prioritises
the US legislations, providing clear guidance and technical framework for meeting minimal
16 standards
and
accessing
wider
customer
audiences.
This
suggests
that
dense
institutionalisation and regulatory power in regional policy may overstep initial geographical
boundaries and become a world-wide recognised instrument, providing the framework for
actors, operating in other regions. In addition, it questions the stakeholders’ communicative
and cooperative experiences as they operate at the same geo-political level, but shape their
knowledge sets, positions, and practices within different legal contexts. It was also suggested
that the discussed instruments play a significantly weaker role in shaping national actors’
perspectives. Indeed, the relation seems to remain on the surface and none of the global
instruments dominate in their everyday professional activities. It was evident that global
instruments do not exist in a vacuum and are closely linked with regional legislations. Hence,
the following section sheds light on various EU policies and aims to detect their role in
shaping actors’ positions and practices toward market accessibility.
- EU legal instruments
European Union policies and legislations are important instruments shaping industry and civil
society’s positions and practices in regard to market accessibility. While the expression
‘made it possible to proceed with these [accessibility] things’ (Company X) best represents
EU business’ experiences, regional civil society noted that EU instruments on accessibility
and particularly on ICT accessibility ‘do impact a lot’ (IDPO). Research data as well as
internship experience suggests that usually the actors employ the same EU policies but adjust
them to fit professional practice. For instance, the informant from Company X indicated EU
legislations as a positive guidance, having a direct impact on product development process:
In our company, and I also think in other companies, this regulation and legislation is
a language that is very well understood inside product development. So, we just
implement those, and that’s a very good thing (Company X).
While manufacturers translate legislations into a language of technical features, guiding
product development process, for the IBR the EU instruments serve as a framework, within
which the association interacts with member organisations, policy makers, and other partners:
Every time we have a legal proposal being talked about, and suggested and drafted,
this is where the association obviously, unless it’s not an important one, which
doesn’t happen usually, becomes active. Let’s say the most usual thing where we
certainly will have to look at it because then it becomes concrete and then it’s about,
17 again, specific requirements and then it’s about often framework within which the
companies have to operate and then maybe different from the current situation (IBR).
It seems that different policies provide the IBR with a framework for interaction with
member organisations and serve as a unifying element, which summons the partners for
collaboration and cooperation. Locating this practice in a broader context of research results,
it seems that EU legislations often become a relatively substantial starting point, determining
the level, complexity, and content of partners’ collaboration, activities, and engagements in
the discourse and practice of accessible markets. Recalling the discussion in Section One, the
content of the EU instruments and the weight dedicated to accessibility within them should be
called into question. In addition, the idea of ‘universalised disability policy’ as suggested by
Bickenbach (2014) should be applied not only do disability social policy but to broader
spectrum of the EU legal instruments. Likewise, modified principles of Universal Design and
the principles of human rights should be intertwined with mainstream policies, which at first
sight may have little to do with markets accessibility and customer equality.
Similarly to industry players, the IDPO employs EU legislations as a framework within
which the organisation starts and coordinates communication with national members. While
one of the goals of such interaction is to reshape national DPOs’ positions, the organisation
equally aims to promote changes in national policy rhetoric:
Now we have, for example, this proposal for legislation on accessibility of websites,
public bodies’ websites. If it is adopted, and hopefully it is, the scope is a bit enlarged,
can have a really important impact because now there are on one hand, still a few
countries, who do not have any rules on what accessibility, some that they have, but
they do not really apply them and you have also a difference of requirements. So this
legislation could uniform requirements and make it much easier than to really have
accessible websites and for public authorities and hopefully also at least the providers
of services which are used by the majority of people. We hope that there will also be
some enforcement mechanisms so I think it can have an impact (IDPO).
The narrative suggests that EU instruments may provide a framework within which MS that
lack knowledge and regulatory practices on accessibility, become able to create new norms
and values that are common across the region. In addition, it seems that regional policies are
perceived as tool, unifying national instruments. While this may boost accessibility
provisions and provide a common ground across the Community, it is important to note that
18 interventions of the EU should be sensitive to different national contexts and do not intrude
into their realities. Despite the outlined differences, it seems that the stakeholders perceive
EU policies as a guiding mechanism, within which framework professional positions and
activities are shaped and developed. Such practice may provide a scene for creating collective
identity, sharing common values and norms, employing common and recognisable language,
as well as shaping the lifeworld (Habermas, 1984, 1985) on markets accessibility. However,
the role of voluntary and binding legislations in moulding these dimensions differs. With
regard to voluntary agreements, the IBR noted that often industry either partly complies with
this type of legislation or ignores them:
A voluntary agreement is something else in reaction to legislation. It can prevent
legislation, can substitute legislation, but it only goes this far because it’s based on
voluntary engagement and not everyone may want to engage. Not all TV
manufacturers engage (IBR).
Similarly, observations of different meetings during the DREAM internships revealed that
business’ position toward voluntary agreements differ. As an example, while some producers
are more proactive and ready to sacrifice in terms of the company’s self-interests, others are
less open and focus more on business strategy and profit maximisation. Such fragmentation
suggests that under current policy development strategies and methods, business’ interests
and values in accessibility areas are not strong enough to produce and to follow soft
legislations. In other words, current voluntary agreements do not create interaction patterns
within which shared accessibility norms would establish a common value in the EU single
market.
On the other hand, it seems that binding EU legislations have a greater potential to provide
international stakeholders with a framework, structuring their activities and involvement in
accessibility debate and practice. To illustrate, the IBR noted:
Again, each company has to make its own decision, unless you have legislation and
then there is no choice; you have to do it and they will do it […]. While, if you have
legislation, now we are looking at a suitability act, that’s a different sort of animal
because then it is binding for everyone and then obviously the attention is there. […]
So I think it’s important to just say once, if you are still in the voluntary area, then the
approach may be very, very fragmented, while once you move into legislation
obviously there’s a certain level of harmonisation by default, but it doesn’t mean you
19 can do more than that, you can only accessible product by default. Not everyone does
it, but it could be a policy (IBR).
The leading role of binding regulations was confirmed by Company X. Although the
informant did not refer to specific hard law instruments of the EU, the examples of
integrating the Hearing Aid Compatibility requirements and other US legislations suggest
that binding rules have greater potential to serve as a tool, shaping business’ activities and
commitments.
By the end of this subsection we have seen that regional instruments are mainly considered
by international stakeholders. Even though the actors respond to and use regional instruments
differently, it seems that current EU legal basis is able to provide a common ground for
acknowledging accessibility and integrating it into professional perspectives and practice. It
is suggested that voluntary and binding regulations play a different role in addition to the fact
that stakeholders’ responses to them are not identical. While soft legislations provide a space
for establishing two-way power to address accessibility issues, the actors seem to be resistant
to considering voluntarily established commitments. Contrary, binding instruments,
providing MS and the stakeholders with legally enforceable requirements, are taken into
account more specifically. Either way, it seems that compliance with legal rules and
requirements becomes a medium to remain in the market and not to ensure equality among a
diversity of customers. However, keeping in mind that the EU by its nature may be
considered as a lifeworld or may provide a framework for a common language and lifeworld
to emerge (Lewis, 1998, Müller, 2004, Niemann, 2004, Risse-kappen, 1996, 1999, 2000),
dense regulatory instruments and institutions should not be devalued in knowledge and
practice development stages. Indeed, locating the principles of the communicative rationality
(Habermas, 1984, 1985, 1991, 1993) and the procedures of the Open Method of Coordination
within the deliberative democracy framework (Eriksen and Fossum, 2002, Habermas, 1996,
Cohen, 1989) may bring the EU Community, industry, civil society, and disabled customers’
understanding and implementation of accessibility closer to the one that is established in the
CRPD.
- National policies
The role of national policies in expanding markets accessibility and customer equality is
twofold and may either prevent or encourage positive changes. To begin with, while
20 Lithuanian and British legal instruments on customer rights are consistent with the position
established in regional legislations and construct disabled people as ‘vulnerable’ customers,
the perspective of national social policy entrenches this conceptual division and provides
some operational framework for the empirical implementation. Interviews with Lithuanian
and British DPOs suggest that current national social policy priorities restrict civil society’s
activities that could reshape and broaden the understanding of disabled people as customers
and markets accessibility, and bring it closer to the position entrenched in the CRPD. For
instance, the focus of national governments on issues such as disabled people’s medical and
professional rehabilitation, special needs, access to build environment and public transport,
and insufficient consideration of markets accessibility respectively shape national DPOs’
priorities and activities.
Although these areas are important, by receiving the funding for the implementation of
particular activities, the organisation is prevented from expanding the actions and including
customer rights and market accessibility issues in the agenda. While this can be linked with
historically and socially constructed disabled people’s exclusion from and marginalisation in
labour and commerce markets (Baker, 2006, Baker et al., 2007, Freeman and Selmi, 2010,
Kaufman-Scarborough, 1998, 2001, Beier, 1974, Gillin, 1929, Ryan and Thomas, 1980,
Stainton, 2008, Stone, 1984, Gleeson, 1999, 1997), Lithuanian informants noted that one of
the potential reasons behind such a policy position is that people with impairments’
participation in the market as customers ‘goes after everything else, if it goes at all’ (LT
DPO). In a similar vein, UK DPO referred to national policies and revealed how current
welfare reform changes and financial cuts mould DPOs’ activities across the country:
The priority for most disabled organisations, or organisations of disabled people is to
resist those cuts to benefits because that’s where the majority of disabled people are
and that’s the issue that’s affecting them most, and if you haven’t got very much
money to spend, you’re not going to be going to the shops anyway. So the focus is not
on disabled people – the focus of our UK society is not on disabled people as
consumer, but is on disabled people as participants, and resisting so-called welfare
reform changes that affect the level of benefits and their entitlement to benefits (UK
DPO).
It seems that limited disabled people’s recognition as customers in customer rights’
protection instruments and the focus of social policy on welfare measures portray people with
21 impairments as vulnerable objects of welfare, social services, and benefits, rather than active
choosers and decision makers in the market. Such legal practice and austerity measures draw
the boundaries within which DPOs have to operate, shape their positions, and create
knowledge, which later is communicated to partner organisations, disabled individuals, and
other members of society. Being locked within the knowledge, positions, and values of the
system, DPOs are prevented from the creation of their own accessibility concept and
practices.
Similarly to national actors, international industry and civil society stakeholders addressed
several present and potential shortcomings in national legislations. To begin with, while the
informant from Company X noted that none of the national instruments across the EU have
an actual impact on the activities of the company, the IBR noted that national standards and
regulations on ICT may serve as a barrier causing incompatibility practices and closing
particular niches of the market:
I think it all becomes a bit more tricky when you have different national requirements
or different European from the US or, I don’t know, elsewhere. So if you stick to a
global level, as a company that makes your life so much easier because you know
what you’re dealing with, you know exactly what the requirements are and you don’t
have to re-negotiate things or make changes in the way that you operate or how you
decide to develop. So I think lots of the company that I’m involved in, have
experience of accessibility in other regions and they’d rather have it harmonised at the
global level if possible, i.e. at least have European legislation to some extent,
wellbeing at least close to the requirements that we have elsewhere. Because
otherwise every region would require a new, well a tailor-made product in relation to
accessibility and again, I think we don’t believe that impairments are really different
in the US and Europe (IBR).
In other words, currently national policies and legislations neither serve as a tool or a filter,
ensuring the provision of more accessible products on national markets, nor contribute to the
creation and amplification of international players’ positions toward and knowledge about
accessibility. Contrarily, if incompatible with international and global instruments, national
legislations may serve as a barrier, closing up particular niches of national markets and
preventing international stakeholders from broader and deeper engagement in the area.
22 In a similar vein, as international industry actors, the IDPO did not refer to national
legislations as an important source or means for creating knowledge and positions on
accessibility. Indeed, the informant identified national legislations as an object of changes by
applying regional instruments:
As this legislation [EU level] is actually somehow our source of the national
legislation, if you don’t manage to influence the new level, you do not have an impact
at national level. It’s much more difficult (EDF)
Despite the outlined shortcomings, research data suggests that national instruments may
encourage private providers to introduce more accessible customer service. While Lithuanian
representatives addressed more hypothetical scenarios, the UK informant noted that although
national legislations have no power on product accessibility, they may introduce a framework
for more accessible customer interaction in the premises of private providers:
In the UK, there are rights that people have got under the Disability Discrimination
Act, which then became part of the 2010 Single Equality Act. So there are
requirements, for example, for retailers to provide reasonable adjustments and there
are some good examples of reasonable adjustments that have been made. Some of the
– I think Weatherspoon’s, for example, pubs have made it easier to visit their pubs.
[…] Some of the providers in the hospitality and leisure industry, like the
intercontinental Hotel Group have trained their staff in the needs of disabled. […] So
there is some consumer protection rights under the Single Equality Act, particularly as
I say around reasonable adjustments, but what’s missing is a requirement on
manufacturers to produce accessible products (UK DPO).
The discussion in this subsection has suggested that national policies play a limited role in
creating common ground for markets’ accessibility and may prevent international and
national stakeholders’ broader actions. It seems that MS neither sufficiently consider nor
efficiently implement the obligation ‘to ensure that private entities that offer facilities and
services which are open or provided to the public take into account all aspects of accessibility
for persons with disabilities’ (art.9.2b). While ‘over-regulation’ on product accessibility may
introduce tensions and incompatibility across global, regional, and national instruments and
practices, limited requirements for accessible and equal customer service delivery in the retail
outlet exclude and marginalise disabled shoppers as well as create their customer
vulnerability and spatial isolation in the EU mainstream private market.
23 4.
Tentative Outcomes & Recommendations.
This paper was founded on the results of the three-year project ‘Effective Customer Policies
for Disabled People in the Private Market’ and provided some insights into the research
process and results. From a methodological point of view, it has been suggested that one
manner of identifying the way MS could meet the requirement outlined in the CRPD to
provide private entities with a framework, within which they take into account all aspects of
accessibility for disabled customers, is to inspect legal rhetoric in regard to such practices as
well as empirical experiences of the key-actors. It was suggested that even though the
discourse of rights and accessibility is present at a global level, there are some fundamental
tensions at regional and national levels. Specifically, while the CRPD draws the path for
customer equality and markets accessibility to emerge and develop, the EU and national
policies legally construct disabled people as ‘vulnerable’ customers and shape some measures
for more accessible market practices around an individual model of disability. Such regional
and national legal practices classifies disabled people as customers, who have ‘low selfesteem, poor decision making abilities, less personal control’ (Sanders, 2006). In addition, it
sets a legal path for marginalization and exclusion and negates people with impairments’
customer equality, rights, abilities, and strengths. Most importantly, it legally entrenches the
status of being ‘vulnerable’ and positions an individual’s impairment as an important factor
determining his/her position in the market as customer.
Research data suggest that at the empirical level the legal division between disabled and nondisabled customers often manifests in inaccessibility of retail outlets, limited shop assistants’
awareness of disability and accessibility, ‘average’ customer-oriented content of provided
product information and service delivery among others. It seems that the marriage of the
capitalist economy with the existing regional and national policy position separate disabled
people’s skills, competences, and knowledge that they could use to negotiate their position
and actions within the market. Experiences, emotions, expectations, abilities, and habitus in
general become pressed to the bottom (Edgar, 2006) by the prevailing understanding of
disabled customers as important, sensitive, and needing protection social concern (Baker et
al., 2005).
Research process has also revealed that undergoing regional and national policy
developments do shape citizens’ realities and mould social and policy research process. It
24 was detected that ongoing debates on the EAA introduce some signs of mistrust and tension
among policy makers, international industry, and civil society actors and limit their
involvement in the academic knowledge creation process. In a similar vein, national social
and welfare policies impact on the human resource and activity priorities of national DPOs,
which often manifest in resistance to take part or to act as gatekeepers in social research.
With regard to empirical insights, it was suggested that the stakeholders acknowledge the
need for more accessibility across the EU private market. However, their knowledge and
positions are shaped by different legal instruments and this introduces some differences and
tensions in the actors’ knowledge sets and perspectives. As an example, regional
representatives of civil society mould their understanding around the CRPD, perceive
accessibility as a right and an issue of equality and non-discrimination, and position it within
a broader context of independent living. Manufacturers, for instance, having to meet technical
requirements and standards perceive respective legal instruments as the main source of
reference. As a result, they usually understand accessibility through the angle of technical
characteristics and developments. Broader results of the research suggest that due to their
operation within technical legal context, product producers may position individuals’
impairments as guidance for identifying lacking product features and meeting minimal
technical standards. While this may open some space for users and designers’ cooperation, it
also introduces a risk to transform product accessibility from lacking and disabling features
into means to ‘overcome’ or ‘fix’ people’s impairments. It was also suggested that national
policies do not exploit the potential to introduce more accessibility practices and in some
cases may act as a barrier from wider actions and initiatives. However, in those cases when
governments do take actions in regard to market accessibility, positive outcomes are often
experienced by disabled customers, and private providers’ positions seem to progress toward
social model oriented perspective.
Operating in the emerging field, which does not have long traditions and entrenched
practices, the stakeholders acknowledge the need for cooperation with other parties, as well
as positively responding to sensitive and reasonable legal instruments. This enables learning
from each other and gaining knowledge, which is important in activities, such as product
development or lobbying, and overcoming conceptual and empirical contradictions
introduced by different legal contexts. Broader insights suggest that, operating in the area,
which is relatively new and poorly established, the stakeholders may not be internally selfsufficient (Aldrich and Pfeffer, 1976) and have to interact with the actors, managing and
25 owning accessibility-related information, which would remain unknown or unreachable
without their intervention (Pfeffer and Salancik, 1978). However, detected unequal power
relations between policy bodies, industry, and civil society question the manner of the
cooperation. Hence, it is suggested that the actors should be equally involved in policydevelopment process, and the practice should be implemented by locating the principles of
the communicative rationality and the procedures of the OMC within the deliberative
democracy framework (Eriksen and Fossum, 2002, Habermas, 1996, Cohen, 1989). This may
reshape power relations and open up a scene for public arguing (Cohen, 1989, Seymour,
2013) as well as bridge the gap between different positions on and understandings of
accessibility. Regular benchmarking and peer review of own and of other states’ programmes
(Casey and Gold, 2005) may enable MS and the stakeholders to learn from each other,
exchange information and best practices, provide comparative analysis and advice, as well as
promote innovative approaches and evaluate experiences as it is established in the
Amsterdam Treaty (European Union, 1992, art.129). In addition, this would enable disabled
customers to share their concerns, interests, and ideas and in such a way to experience selfgovernance (Friedrich, 2006). Such processes seem to enable different countries, industry,
civil society, and other participating actors to ‘share a commitment to the resolution of
problems of collective choice through public reasoning’ (Cohen, 1989:72) and transform
markets’ accessibility into a commonly perceived issue of human rights.
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