Abstract
Live television production remains driven by platforms which are modelled on systems developed before digitised technology, with specialised components and systems which were designed and developed entirely for a non-disabled plurality. The effect of this is that skilled production staff who become disabled are unable to continue within their roles, in many cases becoming forced into leaving the television industry entirely. This investigation explores the possibility of using bespoke ubiquitous computing systems to circumvent existing practical and strategic restrictions upon reasonable adjustments in production roles. To make our findings, we draw upon twelve criticality-informed interviews with both production specialists and assistive technology experts, and an ethnographic study conducted in a television production environment. This investigation had a particular emphasis upon what practices are (legally) reasonable to adjust in a production environment, and thus allow the realistic targeting of adjustments to particular combinations of roles and disabilities. Through doing so, we describe a space for re-configuring existing user interfaces, practices and workflows in the production environment, introducing a new paradigm of bespoke assistive technologies. We also discuss the novel implications for both disability discrimination law and ubiquitous computing that arise from our investigation.
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Notes
These are otherwise known as reasonable accommodations in most jurisdictions outside of the United Kingdom.
See the government statistics at: http://www.gov.uk/government/uploads/system/uploads/attachment_data/file/321594/disability-prevalence.pdf.
Before this were provisions designed primarily for Veterans, for example the (U.S.) 1973 Rehabilitation Act, although it must be remembered that this represents a very small minority within the disability community. Interested readers may wish to read Lawson’s book [45] to explore how the reasonable adjustment duty has emerged and developed.
There are of course other aspects to this legislation, which we do not explore within this particular paper, given that we are only concerned with reasonable accommodations in an employment context. This includes a wide range of other legal duties that vary across jurisdictions. In the UK for example, under the Equality Act (2010) this would include the need to avoid direct and indirect discrimination, not to victimise someone for supporting a person with a disability, and public law considerations, such as the Public Sector Equality Duty (s 149) which requires proactive promotion and consideration of Equality (including for people with disabilities) by public authorities.
This would exclude Northern Ireland, which operates a different legal system concerning Disability Discrimination.
To avoid identification of individual participants, we do not provide a more detailed description of their individual roles.
What we have done should be distinguished from Value Centred Design [46]. Although we might have said to have adopted the “value” of disability inclusion in the workplace, Value Centred Design would not involve this kind of rigour or skilled legal consideration of this issue and would not be ideal because such an approach would inevitably drift into an implementation of Deal’s hierarchy of impairments [20].
It was argued by one of our participants that there was a need for a sound mixer to run into a studio and repair technical issues with microphones. However, taking the overall picture, we found that someone else could perform this role if it became necessary (based in part on discussions with other participants who were less convinced that this would be problematic), and this would already be a reasonable adjustment. As such, this concern does not apply for our case.
A video overview of this system can be found at: http://www.youtube.com/watch?v=Q5DxNpJHN00.
The specific issue here would be of less difficulty in the UK for instance, where there appears to be more liberal legislation and processes for custom and rebuilt vehicles.
A video illustrating the use of this system is available here (this was used as part of the demonstration of the proposed system): http://www.youtube.com/watch?v=_HPU6DxzIU0.
A stenographer provides support for D/deaf people by typing—in real time—what is being said by a speaker, using a special chorded keyboard that allows them to obtain a sufficiently high word rate per minute (WPM) with a great degree of accuracy.
We also used a video of a similar system to support discussion of this particular proposal: http://www.youtube.com/watch?v=5vUi0DXtXs4.
We do not consider cognitive disabilities here, as our process was not validated for or designed in respect of this space. However, it is certainly possible in some circumstances that BAT’s could be developed in response to these types of disabilities going forwards, and this is a development we would certainly welcome.
Perhaps surprisingly, the fact that this investigation was conducted in abstracto (i.e. without using a real disabled “client”) does not have any impact upon the legal aspects of this work. Disability and individual impairments are diverse. The same applies for production roles. As such, each case would need to be determined on its merits de novo, as opposed a fixed piece of technology or set of reasonable adjustments being applied. Intuitively this might make more sense when considered against the fact that there is no obligation in law for disabled people to prove that a given reasonable adjustment to work (with both Foster vs Leeds NHS Trust and Butcher vs Croft Vets and Anor going as far as to oblige reasonable adjustments that are highly unlikely to work). If disabled people had to demonstrate that reasonable adjustments were likely to be work, then the natural effect would be to negate the duty to make reasonable adjustments in most cases, simply because reasonable adjustments generally are individual specific, as well as evolve with the introduction of new technologies and practices.
Although the USA has not ratified the UN CRPD, over 150 other states have now done so. In most cases where a country has signed but not ratified the UN CRPD, the failure to ratify does not actually flow as a consequence of the core reasonable accommodation duty (as termed in the convention), but the failure to meet their obligations to those who may be considered to lack “mental capacity”. One striking example is the Republic of Ireland, where the current law in force remains the Lunacy Act of 1871, rather than more progressive legislation (in England and Wales, the Mental Capacity Act (2005) applies, which is sufficiently modern—although far from immune to criticism— as to meet the UN CRPD’s requirements).
Access to Work is a scheme in the United Kingdom that subsides reasonable adjustments for people with disabilities. This subsidy has the natural effect of broadening the reasonable adjustments that might be made, by helping to eliminate defences that might be made on cost grounds. However, given that this scheme is being reformed, and there is a lack of similar schemes in many other jurisdictions, it is better not to rely upon that schemes ongoing existence.
Similar arguments have been accepted under US legislation. For example, the Third Circuit of Appeals in Colwell v. Rite Aid found that it was a reasonable adjustment to change someone’s shift patterns in response to an acquired vision impairment (the reasoning being that night driving become dangerous for that employee). In Equal Employment Opportunity Commission vs United Airlines, the Seventh Circuit of Appeals also affirmed that re-assignment to a vacant position was a reasonable accommodation (even if there might be better external applicant for that vacancy).
This can be found in Cordell at 26. http://www.bailii.org/uk/cases/UKEAT/2011/0016_11_0510.html.
This is generally similar to other jurisdictions. For instance, in the Canadian case Central Alberta Dairy Pool v. Alberta (Human Rights Commission), it was recognised that “undue hardship” included a consideration of “financial cost, disruption of a collective agreement, problems of morale of other employees, interchangeability of work force and facilities”. It was also noted that “the size of the employer's operation may influence the assessment of whether a given financial cost is undue or the ease with which the workforce and facilities can be adapted to the circumstances. Where safety is at issue both the magnitude of the risk and the identity of those who bear it are relevant considerations”. In the USA, the test is “undue hardship” (in the employment context), with very similar factors also being expressed directly in the Americans with Disabilities Act (2010) itself (see 42 U.S.C. § 12,112.).
This can also be found in Cordell, at 27.
This picture is reflected in a wide range of international case law. For example, in the US case of Argenyi vs Creighton University, a D/deaf medical student was found to be entitled to expensive communication support (in excess of $100,000) in order to enable them to complete their degree program.
In respect of English employment law, the Equality Act (2010) does not impose an anticipatory duty in an employment context directly. However, not adopting such an approach could be a failing under the Indirect Discrimination provisions, and we assume this route may apply instead.
Some public sector organisations have additional obligations that bring about stronger anticipatory duties through a different route. In England and Wales, this would be under the Public Sector Equality Duty (s.149 of the Equality Act (2010)). For our context, this would likely extend to promoting the inclusion of people with disabilities in production environments more generally, rather than simply those who it happens to employ.
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Acknowledgments
We are grateful to our participants for the insightful contributions that they offered to this work. We are also grateful to both CanAssist and the British Broadcasting Corporation for enabling this research to be completed. The first author was funded by an EPSRC DTA award, as well as the British Broadcasting Corporation for the period of this research.
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Kirkham, R., Bartindale, T., Evans, M. et al. Build me a Ubicomp: bespoke ubiquitous accessibility in live television production environments. Pers Ubiquit Comput 19, 853–880 (2015). https://doi.org/10.1007/s00779-015-0859-7
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DOI: https://doi.org/10.1007/s00779-015-0859-7