2001 Conference Proceedings

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An Overview of Law and Policy for IT Accessibility:
A Resource for State and Local IT Policy Makers

Cynthia D. Waddell
San Jose City Hall
801 North First St.
San Jose CA 95110
E-mail: cynthia.waddell@ci.sj.ca.us 

Mark D. Urban
PSINet Solutions
4600 Marriott Dr.
Raleigh NC 27612
mark.urban@ncmail.com

Mark Burks
5212 Covington Dr.
Raleigh, NC 27613
mburks952@att.net

How To Use This Report

This report is intended as an introduction to the issue of electronic and information technology accessibility for governmental policy makers at the State and Local level. The Authors do not intend for this to be a complete discussion of the complex issues involved, nor do they intend this resource to be the “final word” regarding the changing regulatory and technological environment. Finally, this report should not be construed as legal advice or opinion on specific facts since particular legal questions can best be answered by seeking the advice of counsel.

The Need for Accessibility

Information technology accessibility for Americans is at a critical turning point. According to the 1999 U.S. Department of Commerce report, Falling Through the Net: Defining the Digital Divide, although more Americans than ever have access to information tools, such as the personal computer and the Internet, there is still a significant "digital divide" between those who “have” and “have not.” Yet, even if we were to overcome the problem of connectivity for everyone, another significant problem remains. According to the 1999 U.S. Department of Commerce report, The Growing Digital Divide in Access for People with Disabilities: Overcoming Barriers to Participation, even Americans with disabilities who have access to information technology are subject to another significant “digital divide” between those who “can” and “cannot.”

Usability of information technology becomes a serious issue for Americans with disabilities when they are excluded from the e-commerce and e-government due to the inaccessible design of information technology. Those who “can” and “cannot” are finding a growing number of access barriers, such as inaccessible web sites, software incompatibility with adaptive devices, and voice automated systems inaccessible to adaptive telephones.

Fortunately, a closer look at the design features of accessible technology reveals that the benefits extend beyond the community of people with disabilities. For example, accessible web design enables the very functionality needed for a diverse community to conduct dynamic, web-based transactions – whether or not it is for business transactions, voting or long-distance learning. In addition, CD and videotapes can be archived through captioning and electronic textbooks can be made accessible. Even illiterate populations can access the web by listening to screen readers audibly reading the text on the web page.

But perhaps the most significant benefit for the global economy is the fact that accessible web design enables low technology to access high technology; thereby contributing to a stable, sustainable electronic infrastructure. People with slow modems and low bandwidth can access the electronic content of the web even if they do not have the state-of-the-art computer equipment. Likewise, people with personal digital assistants and cell phones can access the content of web sites incorporating accessible web design features. Therefore, it is not surprising that a growing number of governments around the world have adopted accessible web standards to ensure participation in the global economy.

Federal law

Americans with Disabilities Act of 1990

The Americans with Disabilities Act (ADA) requires that covered entities furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities, unless doing so would result in a fundamental alteration to the program or service or in an undue burden. See 28 C.F. R. Section 36.303; 28 C.F.R. Section 35.160.Auxiliary aids include taped texts, Brailled materials, large print materials, captioning and other methods of making audio and visual media available to people with disabilities.

On September 9, 1996, the U.S. Department of Justice issued a policy ruling that stated that ADA Titles II and III require State and Local Governments and the business sector to provide effective communication whenever they communicate through the Internet. This effective communication rule applies to covered entities using the Internet for communications regarding their programs, goods or services since they must be prepared to offer those communications via an accessible medium.

As discussed in the paper, “Applying the ADA to the Internet: A Web Accessibility Standard,” State and Local governments should be adopting and implementing accessible web design policies to ensure compliance with the ADA. Moreover, as early as 1995, ADA discrimination complaints have been filed against public agencies resulting in settlements, either public or private.

Events this past year demonstrate the continued activity in the filing of ADA complaints to address access barriers in electronic and information technology. For example, in November 1999, the National Federation of the Blind filed suit against America Online, Inc., charging that AOL’s proprietary browser and internet web site was inaccessible to consumers who are blind. In March 2000, an ADA settlement agreement was reached between Bank of America and the California Council of the Blind to not only install 2500 talking ATMS in Florida and California, but to ensure that its Web site and online banking services were accessible to people using screenreaders. Even April 2000 brought an ADA settlement agreement between the Connecticut Attorney General’s Office, the National Federation of the Blind, and four online tax filing services. The four popular online tax filing services listed on the Internal Revenue Service’s official web site as on-line partners have agreed to change the coding of five websites to ensure that people who are blind can access the sites for the year 2000 tax filing season.

Rehabilitation Act Amendments of 1998 

On August 7, 1998, Public Law 105-220 enacted the Rehabilitation Act Amendments of 1998 which significantly expands and strengthens the technology access requirements of Section 508 of the Rehabilitation Act of 1973 (Section 508). Section 508 requires that when Federal agencies develop, procure, maintain, or use electronic and information technology, they must ensure that the electronic and information technology is accessible to people with disabilities, unless it would pose an undue burden to do so. Federal employees and members of the public who have disabilities must have access to and use of information and services that is comparable to the same available to non-disabled Federal employees and members of the public.  

Under Section 508, the scope of electronic and information technology is expansively defined. It includes computers (such as hardware, software, and accessible data such as web pages), facsimile machines, copiers, information transaction machines or kiosks, telephones, and other equipment used for transmitting, receiving, using, or storing information.  

A Federal agency does not have to comply with the technology access standards if it would impose an undue burden to do so. This is consistent with language expressed in the Americans with Disabilities Act (ADA) of 1990 and other disability rights legislation, where the term "undue burden" is defined as "significant difficulty or expense." Agencies shall continue to have long-standing obligations under sections 501 and 504 of the Rehabilitation Act to provide reasonable accommodations to qualified individuals with disabilities upon request.  

Section 508 State Impact 

In addition to Federal agencies, States are also impacted by Section 508. States receiving Federal funding under the Assistive Technology Act of 1998 will be subject to Section 508. This means that States' purchases of electronic and information technology must also comply with the accessibility standards set forth under Section 508. Even local governmental entities may be impacted, especially in those States where statutes prohibit discrimination on the basis of disability by entities receiving state funds.

Perhaps more significantly, however, Section 508 will inform States and Local Government on how to provide accessible services for their citizens and accessible work environments for their employees as already mandated under the ADA. In its infancy, compliance with the ADA was informed by the body of law developed under the Rehabilitation Act of 1973. Similarly, it is expected that Section 508 and its information technology accessibility standards will inform State and Local Government ADA compliance efforts.

As more and more intra- and inter-governmental services utilize information technology, policymakers will at a minimum be required to implement Section 508 guidelines - or determine their own guidelines, standards, and policies regarding IT procurement, deployment and use – to avoid liability for the violation of disability rights. Currently, it is the opinion of the authors that State and Local Government implementation of the World Wide Web Consortium Web Content Accessibility Guidelines 1.0 would satisfy the U.S. disability rights mandate for accessible web design. In fact, implementation of these standards would ensure that the U.S. remain competitive in the global market since the European Commission endorsed these standards in May 2000 as a policy for all European institutions and Members States.  

Both State and Federal agencies must also be aware of the determination by the U.S. Department of Justice that accessibility issues cannot continue to be addressed exclusively on an “ad hoc” or “as needed” basis. In fact, a systemic accessibility plan must be in place for electronic and information technology. According to the April 2000 U.S. Attorney General report on the state of federal accessibility:

Data provided by the agencies suggest that the majority of agencies that continue to handle IT accessibility issues exclusively on an "ad hoc" or "as needed" basis, instead of integrating accessibility into the development and procurement of their mainstream IT products. Many IT officials hold the mistaken belief that persons with disabilities can always be accommodated upon request by using widely available assistive technology devices (e.g., screen readers, screen enlargers, volume control apparatuses, pointing devices that serve as alternatives to a computer mouse, voice recognition software, etc.) in conjunction with mainstream technology applications. Indeed, the goal of section 508 is to ensure that the agency will always be able to provide reasonable accommodations. Without adequate planning, however, the possibility of providing an accommodation to person with a disability may be foreclosed…. Use of an "ad hoc" or "as needed" approach to IT accessibility will result in barriers for persons with disabilities. A much better approach is to integrate accessibility reviews into the earliest stages of design, development, and procurement of IT. Once an accessible IT architecture is established, then ­ and only then ­can persons with disabilities be successfully accommodated on an "as needed" basis.

Standards are being established by the U.S. Access Board to provide technical and functional
performance criteria that will determine whether a technology product or system is
"accessible." Federal agencies must comply with these technology accessibility standards for
all electronic and information technology acquired on or after August 7, 2000. This will require increased coordination and technical assistance to carry out this mandate.  

The administrative complaint process for Section 508 will become effective It enables an individual with a disability to file a complaint alleging that a Federal department or agency has not complied with the accessible technology standards for a procurement made after August 7, 2000. The complaint process is the same as that used for Section 504 of the Rehabilitation Act which provides for complaints alleging discrimination on the basis of disability in programs or activities conducted by Federal agencies or States receiving Federal funds. Remedies include injunctive relief and attorney fees to the prevailing party, but does not include compensatory or punitive damages. Moreover, individuals may also file a civil action against the agency for not complying with Section 508.

Summary of Section 508 Important Limitations

Built-in assistive technology is not required where it is not needed. The law does not require every workstation of nondisabled employees­ or every EIT product to be fully accessible to persons with disabilities. Products such as desktop computers do not have to be outfitted with refreshable Braille displays, but must be compatible with refreshable Braille displays so that if an individual who is blind needs one as a reasonable accommodation, he or she can use it with the agency's standard workstations. The Access Board's Section 508 Standards will determine when an EIT product must be fully accessible and when it must only be compatible with assistive technology.

Undue burden. Agencies do not have to procure EIT products that satisfy the Access Board's Section 508 Standards if doing so is an undue burden. "Undue burden" generally means a "significant difficulty or expense." The Standards will include factors that agencies can use to help apply this term consistently.

Development, maintenance, and use of EIT products. The enforcement provisions of section 508 cover only "procurement" of EIT products and services on or after August 7, 2000. Agencies will continue to have long-standing obligations under sections 501 and 504 of the Rehabilitation Act to provide reasonable accommodations to qualified individuals with disabilities upon request.

Critical Issues

  1. Did you include all organizational stakeholders in their development? 

  2. Do you have training and technical support available for those who do not understand the practical implementation of that standard? 

  3. Is the standard applied throughout your organization? 

  4. Do you have a phased, cost-effective approach to limit undue burden?