2002 Conference Proceedings

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What You Need to Know About Section 508 of the Rehabilitation Act

Taymour Ravandi
PROTECTION & ADVOCACY, INC.
100 Howe Avenue, Suite 235N
Sacramento, CA 95825
phone (916)488-9950
fax (916)488-9960
e-mail: taymour@pai-ca.org

Under Section 508 of the Federal Rehabilitation Act, federal agencies must ensure that electronic information and technology products are accessible to people with disabilities. This generally includes web sites, computers, computer software and information kiosks. Section 508 covers products that are purchased in the marketplace and products that are developed in response to a government solicitation. Commercially available products must comply with as many access standards, provided under Section 508, as possible. Section 508 is intended to benefit the employees of federal agencies and those who use their services.

Federal agencies must comply with Section 508, regardless of whether they have employees with disabilities. By requiring these agencies to purchase accessible products at the outset, this law aims to eliminate the need for expensive retrofitting of an existing product when requested as a reasonable accommodation at a later time.

Requirements of Section 508

Essentially, Section 508 requires access to products that provide information and data. Specifically, it requires that when federal agencies develop, procure, maintain, or use electronic and information technology, they shall ensure that this technology allows Federal employees with disabilities to have access to, and use of, information and data that is comparable to that of Federal employees who are not individuals with disabilities, unless an undue burden would be imposed on the agency. 29 U.S.C. § 794d(a)(1)(A)(i). Section 508 also requires that all individuals with disabilities, including non-federal employees, seeking information or services from a Federal agency have access to, and use of, information and data that is comparable to that provided to individuals without disabilities, unless an undue burden would be imposed on the agency. 29 U.S.C. § 794d(a)(1)(A)(ii).

To implement Section 508, the Access Board (the Architectural and Transportation Barriers Compliance Board) has issued regulations that set out technical criteria specific to various types of technologies as well as performance-based requirements, which focus on the functional capabilities of covered technologies. Specific criteria 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 Does Not Require All Covered Products Be Equipped with Adaptive Devices and Software

The purpose of Section 508 is to build as much accessibility as is reasonably possible into general products developed, procured, maintained, or used by federal agencies. So, for instance, it does not require the installation of specific accessibility-related software or the attachment of an assistive technology device at a workstation of a Federal employee who is not an individual with a disability. 29 U.SC. § 794d(a)(6)(B). Such assistive technology may, however, be required as part of a reasonable accommodation for an employee with a disability or to provide program accessibility under other laws. To the extent that assistive technology is necessary, products covered by Section 508 must not interfere with their operation.

Section 508 Does Not Require Federal Agencies to Provide Access to Its Information and Data at an Alternative Location for Members of the General Public

When federal agencies provide access to information or data to the public through electronic and information technology, they are not required to make their equipment available, or to purchase equipment for access and use by individuals with disabilities at a location other than that where the electronic and information technology is provided to the public. 29 U.S.C. § 794d(a)(6)(A). For example, if an agency provides an information kiosk in a Post Office, a means to access the kiosk information for a person with a disability need not be provided in any location other than at the kiosk itself. The accessibility of the location itself would be addressed under Section 504 of the Rehabilitation Act or other Federal laws.

Undue Burden Limitations on Section 508

Federal agencies are excused from complying with Section 508 when it would result in undue burden. Undue burden means significant difficulty or expense. Before an agency can claim undue burden, it must consider all its resources available to the program or component for which the product is being developed, procured, maintained, or used. Because available financial resources vary greatly from one agency to another, what constitutes an undue burden for a smaller agency may not be an undue burden for another, larger agency having more resources to commit to a particular purchase or project. Each should be assessed on a case-by-case basis.

Agencies must document any claim of undue burden explaining which provision imposes such a burden and its extent in each case. 29 U.S.C. § 794d(a(4). The documentation should discuss each of the factors considered. The requirement to document an undue burden applies only to purchases of new electronic equipment.

Additional Duties Applicable When a Federal Agency Claims Undue Burden

When complying with the standards would result in an undue burden, the agency must make information and data available by an alternative means. 29 U.S.C. § 794d(a)(1)(B). For example, a federal agency wishes to purchase a computer program that generates maps denoting regional demographics. If the agency determines that it would constitute an undue burden to purchase an accessible version of such a program, the agency would be required to make the information provided by the program available in an alternative means to users with disabilities. Although information provided by an alternative means should be provided at generally the same time as the information is made available to others, agencies have the flexibility to make case-by-case decisions.

Fundamental Alteration Limitation on Section 508

Federal agencies are not required to comply with Section 508 in cases where compliance would result in a fundamental alteration in the nature of a product or service or its components. Fundamental alteration means a change in the fundamental characteristic or purpose of the product or service, not merely a cosmetic or aesthetic change. For example, an agency intends to procure pocket-sized pagers for field agents for a law enforcement agency. Adding a large display to a small pager may fundamentally alter the device by significantly changing its size to such an extent that it no longer meets the purpose for which it was intended--that is, to provide a communication device which fits in a shirt or jacket pocket. For some of these agents, portability of electronic equipment is a paramount concern.

Section 508 Exemptions

Section 508 exempts telecommunications or information systems operated by agencies under some specific circumstances relating to national security. 29 U.S.C. § 794d(a)(5). These are:

Intelligence activities;
Cryptologic activities related to national security;
Command and control of military forces;
Equipment that is an integral part of a weapon or weapons system or
Systems which are critical to the direct fulfillment of military or
intelligence missions.

This exception does not apply to a system that is to be used for routine administrative and business applications (including payroll, finance, logistics, and personnel management applications). For example, software used for payroll, word processing software used for production of routine documents, ordinary telephones, copiers, fax machines and web applications must still comply with the standards.

Procedures Regarding a Violation of Section 508

Any individual with a disability may take either or both of the following actions if an electronic and information product obtained by the federal government after June 21, 2001, fails to comply with Section 508:

File an administrative complaint 29 U.S.C. § 794d(f)(2),

File a lawsuit. 29 U.S.C. § 794d(f)(3).

If you decide to file an administrative complaint, you must file it with the federal agency that you believe has failed to comply with Section 508. The federal agency must receive your complaint no later than 180 days from the date of the alleged violation. The agency will investigate and decide on your complaints based on procedures it has established for complaints filed under Section 504 of the Rehabilitation Act.

To file a complaint, send a letter to the agency that includes:

Your full name, address and telephone number;

A description of the violation;

The date that you discovered the violation; and

Any other information that you believe necessary to support your complaint.

From the date you find a violation of Section 508, you have one year to file a lawsuit in court. You must file your action in federal court. It is a good idea to have an attorney represent you in court, although you always have the right to represent yourself. You do not have to file an administrative complaint before filing a civil action. If you file an administrative complaint first and the agency finds no violation, you can then go to court as well.


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