by Julie Carroll
Access to information technology has long been a high priority for people who are blind or visually impaired. Only recently, however, has the issue of access to technology received widespread attention from the information technology industry. This change was due, in most part, to actions taken by Congress in 1998 to strengthen Section 508 of the Rehabilitation Act.
First enacted in 1986, Section 508 originally consisted of general, non-binding guidelines regarding government procurement of accessible technology. Only a few federal agencies considered accessibility features when making procurement decisions. This did not create sufficient demand to influence systemic changes in product design. As a result, the assistive technology industry has continually played catch-up, struggling to modify their products to make them compatible with mainstream technology after it is on the market. Expensive retrofits and time-consuming efforts to work around interface barriers have been the norm. Blind people have, at best, had only partial, unreliable access to the information technology long considered one of life’s necessities by others.
Recognizing the problem, Congress made three significant changes to Section 508 in 1998. First, Congress added enforcement provisions, an administrative complaint process and a private right of action. Second, Congress called for the U.S. Architectural & Transportation Barriers Compliance Board (Access Board) to issue accessibility standards for electronic and information technology. Finally, the revised Section 508 requires accessibility standards to be incorporated into all federal procurement decisions. Accessibility standards have been issued by the Access Board. The new Section 508 enforcement mechanisms are in effect. Government and industry are engaged in extensive training on the new access standards across the country. The ultimate success of Section 508, however, will depend on the willingness of disabled consumers to learn and assert their rights under the law. This article will provide an overview of the requirements and exceptions of Section 508. The statutory provisions, implementing regulations, and more in depth information on the technical provisions of the law and extensive technical assistance are available on the following web sites: www.ittatc.org, www.access-board.gov, www.section508.gov.
What Does Section 508 Require?
Section 508 of the Rehabilitation Act Amendments of 1998 requires that when federal departments and agencies procure, develop, maintain or use electronic and information technology (EIT), they must ensure that it complies with the Section 508 standard developed by the Access Board, unless doing so would pose an undue burden on the federal department or agency. The purpose of the law is to ensure that federal employees and members of the public with disabilities have access to the same information and data as employees and members of the public without disabilities.
What is the Scope of the Section 508 Standard?
Section 508 applies to electronic and information technology procured by any federal department or agency after June 21, 2001. Electronic and information technology is defined as “information technology and any equipment or interconnected system or subsystem of equipment that is used in the creation, conversion or duplication of data or information.” According to the standard, “The term electronic and information technology includes, but is not limited to, computers, software, networks, and peripherals, as well as telecommunication products (such as telephones), information kiosks and transaction machines, web sites, multimedia, and office equipment (such as copiers and fax machines).”
Section 508 contains technical provisions, which cover: software applications and operating systems, web-based intranet and Internet information and applications, telecommunications products, video and multimedia products, self-contained, closed products, and desktop and portable computers.
Section 508 also includes functional requirements for: people who are blind or have visual impairments, people who are deaf or hard-of-hearing, people with speech impairments, and people with motor impairments. The functional requirements serve to make products accessible when particular features are not specifically addressed in the technical standard, or when the specific provisions in the standard cannot be met. The functional requirements can also be extremely useful in making a determination that an alternative design is an “equivalent facilitation.”
Section 508 also contains accessible information and documentation requirements. Federal departments and agencies must ensure that product support is provided in alternate formats. Descriptions of accessibility and compatibility features in alternate formats are also required, as well as product support services in alternate communications modes.
How Does Section 508 Affect the Private Sector?
The obligations of Section 508 are limited to federal departments and agencies. The standard does not apply directly to the private sector, nor does Section 508 impose requirements on the recipients of federal funds. The law does not create an administrative complaint process or private right of action by individuals against private companies. The standard does, however, have an indirect effect on companies wishing to sell or lease electronic and information technology to federal departments or agencies. They now must compete on the basis of accessibility for federal business. While manufacturers are not required to modify their products, federal departments and agencies are required to give priority to procuring products which best meet the Section 508 standard.
The enforcement provisions of Section 508 went into effect June 21, 2001 — six months from the date the Access Board published its final Section 508 standard. As of June 21st, any individual with a disability may file a complaint alleging that a federal department or agency failed to comply with Section 508 by procuring non-compliant electronic and information technology. By statute, the enforcement provisions of Section 508 only apply to issues relating to electronic and information technology procured after June 21, 2001.
Complaints under Section 508 are to be filed with the federal department or agency alleged to be in non-compliance. The federal department or agency receiving the complaint must apply the complaint procedures established to implement Section 504 of the Rehabilitation Act for resolving allegations of discrimination in a federally conducted program or activity. It provides injunctive relief and attorney’s fees to the prevailing party, but does not include compensatory or punitive damages. An individual may also file a suit in federal court against any non-compliant federal department or agency without first going through the complaint process.
What are the exceptions under Section 508?
A. Undue Burden
Section 508 standards do not apply if doing so would cause significant difficulty or expense for the federal department or agency. In determining whether an undue burden would exist, all resources available to the component or program making the procurement must be considered. If an undue burden is claimed, the federal department or agency must document the reason for, and extent of, the burden. Additionally, the department or agency is still required to make the information available to individuals with disabilities in an accessible format.
B. Commercial Availability
All Section 508 requirements are subject to commercial availability. Commercial availability means the product is on the market, the product will be on the market in time to satisfy the government solicitation, or, with minor modifications, could be on the market in time to satisfy the government solicitation. The importance of this exception is that it must be applied on a provision-by-provision basis. If there are products on the market which meet some, but not all, of the Section 508 standard, the government must procure the product that best meets the standard.
C. Fundamental Alterations
Fundamental alterations to products to meet Section 508 standards are not required. A fundamental alteration is a change in the nature or purpose of the product.
D. EIT Related to National Security
Section 508 exempts systems used for military command, weaponry, intelligence, and cryptologic activities (but not routine business and administrative systems used for other defense-related purposes or by defense agencies or personnel).
E. Equipment Accessed by Service Personnel Only
EIT located in spaces frequented only by service personnel for maintenance, repair, or occasional monitoring of equipment are not required to meet Section 508 standards.
F. Micro-purchases
The federal acquisition regulations exempt federal procurements up to $2,500, if made on the open market, as opposed to as part of an existing contract, from Section 508 requirements until January 1, 2003.
Requiring accessible information technology throughout the federal government is not only the right thing to do, it is also good for the government. First, the federal government employs many people with disabilities. Currently, more than 195,000 people with disabilities work in the federal government. In a recent executive order, federal agencies were asked to increase the number of employees with disabilities by 100,000 over the next five years (Executive Order 13163, July 26, 2000). Thus, the federal government has a direct interest in making sure its technology is accessible to disabled employees.
Increasing technology accessibility in the workplace has significant potential to reduce the unemployment rate of people with disabilities thereby reducing dependence on government subsidies and programs. Equipping the federal workplace for the largest number and variety of human resources will also increase the pool of qualified workers for labor-intensive jobs. Increasingly, employment requires the use of technology. It is estimated that by 2006, half of all jobs will be in information technology. People with disabilities, if trained and provided with accessible technology, will be a valuable resource as companies and government compete to fill these high-tech positions.
Finally, government increasingly relies on electronic media to provide information to the public. E-government now includes downloading tax forms, checking retirement benefits on-line, and accessing information about government programs and services across the government via the world wide web, just to name a few examples. Government agencies are finding it easier and less expensive to make E-government accessible to all people, including people with disabilities, rather than to develop alternative methods of delivering the same information and services. According to a recent New York Times article, many in government have been pleasantly surprised that making federal web sites accessible has already been accomplished. The article quotes Don Heffernan, deputy CIO at the GSA’s Federal Supply Service, saying, “All it took was a little awareness. Shame on us for not doing it years ago.”