Section 508 of the Rehabilitation Act was enacted in 1996; it requires federal agencies to make sure that the agency’s Information and Communication Technology (ICT) is accessible to employees with disabilities and the general public. The law explicitly applies to all ICT that is developed, procured, maintained or used by agencies. People with disabilities must have access to information and data that is comparable to people without disabilities.
Limited exemptions are allowed for instances when compliance would impose an undue burden on federal agencies and for agencies involved in national security. The law requires that in cases of undue burden, agencies still must provide access to information and data through alternative means.
Regulations and Standards
Section 508 provides that the U.S. Access Board should develop standards to define the technical and performance criteria for implementing the law. The Access Board issued initial standards in 2000, and it published revised standards in 2018. For Section 508, the standards include two major sections:
- The “Scoping” Section, Chapter 2, includes definitions, exceptions and exemptions, and elaboration of basic requirements for agencies to follow. This section applies to the processes and procedures agencies must implement;
- Functional Performance Criteria and Technical Requirements, Chapters 3 through 7. The functional performance criteria are very general and apply to all ICT covered by Section 508. The technical requirements are divided into separate chapters for hardware, software, and support documentation and services.
Section 508 requires that all complaints must be filed with the involved federal agency. These complaints are handled by the agency’s civil rights office using the Section 504 complaint procedures. While it is possible to take a case involving Section 508 violations to court after these administrative processes have been completed, it rarely occurs. Some Section 508 cases have been dismissed from court because these administrative remedies were not completed. Those Section 508 cases that have been successfully filed in federal court have been settled, with the relevant federal agencies agreeing to make necessary changes to their ICT for accessibility. Because these cases have been settled, there are no court decisions to point to.
Section 504 of the Rehabilitation Act was the first broad federal disability civil rights law. It prohibits discrimination against people with disabilities by recipients of federal financial assistance. Entities that must comply with Section 504 include state and local governments, higher education institutions, medical and health facilities as well as many more organizations that use federal funds.
The Section 504 regulations issued by the Department of Education define disability very broadly as “ any person who (i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment.”
The prohibited discrimination includes exclusion from programs or activities, providing opportunities that are not equal to those afforded to others, or are not as equally effective, and providing separate aids, benefits or services.
The regulations were issued in 1980, well before the use of digital technology to deliver programs and activities. The regulations that have been interpreted to require accessibility of communications and eventually websites state:
(d) Auxiliary aids. (1) A recipient to which this subpart applies shall take such steps as are necessary to ensure that no handicapped student is denied the benefits of, excluded from participation in, or otherwise subjected to discrimination because of the absence of educational auxiliary aids for students with impaired sensory, manual, or speaking skills.
(2) Auxiliary aids may include taped texts, interpreters or other effective methods of making orally delivered materials available to students with hearing impairments, readers in libraries for students with visual impairments, classroom equipment adapted for use by students with manual impairments, and other similar services and actions.
In June 2010, the Department of Justice and the Department of Education Office for Civil Rights (OCR) issued a Joint Dear Colleague Letter to College and University Presidents stating that “[r]equiring the use of an emerging technology in a classroom environment when the technology is inaccessible to an entire population of individuals with disabilities . . . is discrimination prohibited by the [ADA and Section 504].”
Office for Civil Rights Settlements and Court Decisions
For Section 504, the Office for Civil Rights (OCR) in the Department of Education, as well as the Civil Rights Offices in other federal agencies, carries out investigations of complaints and often reaches broad settlement agreements with federal grantees. Even when the initial complaint was filed on the basis of a narrow set of facts, OCR often broadens its investigations to encompass many other potential Section 504 violations. In June, 2016, the OCR reported settlements involving web accessibility in seven states and one territory.
Americans with Disabilities Act
The Americans with Disabilities Act was enacted in 1990 and provides for broad civil rights protections to persons with disabilities. It is patterned after prior civil rights laws that afford rights to people based on race, national origin, religion, sex, age and religion. It establishes equal opportunity for individuals with disabilities in public accommodations, employment, transportation, state and local government services and telecommunications. It does not specifically refer to information technology because 1990 was before digital technologies became so entrenched in everyday life. The ADA’s specific requirements for accessibility to communications have been interpreted to mean that digital communications such as websites must be accessible.
The original regulations issued in the early 1990’s did include provisions requiring equally effective access to communications that were interpreted to require website accessibility first for public websites and then eventually for websites of private businesses. In 2008, the Department of Justice issued a statement, “Accessibility of State and Local Government Websites to People with Disabilities”.
In 2010 the Department of Justice (DOJ) issued an Advanced Notice of Proposed Rulemaking relating to accessibility of websites. Later public notices referred to ongoing deliberations with DOJ on the subject, but no proposed regulations were issued until 2016. However, this proposed rule has been withdrawn.
The earliest legal decisions about digital accessibility were cases against state and local governments for maintaining inaccessible websites. The ADA’s Title II requirements for state and local governments are more explicit with respect to communications access than those for private businesses. These decisions were based on the requirements for state and local governments to ensure that all services, programs and activities are accessible.
Subsequent cases against private entities, referred to as public accommodations under the ADA, at first ruled that a website could only be required to be accessible if the business had a bricks and mortal facility and the website was used to supplement business carried out on the premises. As the number of private businesses that operate only on the web has increased, courts have begun to rule more frequently that suits can be brought against web-only businesses. Some courts have decided that private web businesses can’t be expected to make their websites accessible until the Department of Justice issues final regulations about web accessibility, but others have ruled that the ADA clearly requires equal access and that businesses are under this obligation whether the DOJ issues regulations or not.
“ICT Accessibility and the Law” published by the Partnership on Employment and Accessible Technology, a rich source of information for employers about how to make sure IT in the workplace is accessible.
“DOJ Withdraws ADA Compliance For Website Access Regulations”, published by Cielo24. This article includes a Brief History of Accessibility Law in the U.S.
The court decision in Access Now vs. Blue Apron (2017) provides a detailed discussion of the basis for requiring web accessibility under the Americans with Disabilities Act by a private business with no physical retail facility. It also includes the court’s reasoning for denying Blue Apron’s request to defer the lawsuit until the ADA issues web accessibility regulations.
IT Accessibility Risk Statements and Evidence, published in 2015 by Educause, is a list of specific IT management risks associated with accessibility. Each risk is described and documented with a list of court decisions wherein failure to take an action resulted in legal liability. For example, risks include “Failure to allocate sufficient resources and authority to coordinate and implement (accessibility)” or “Failure to provide accurate video captioning”.