2004 Conference Proceedings

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LEGAL ISSUES FOR CSUN PARTICIPANTS: USING DISABILITY RIGHTS LAWS TO MAKE INFORMATION AND INFORMATION TECHNOLOGY MORE ACCESSIBLE

Presenter(s)
Lainey Feingold
Law Office of Elaine B. Feingold
1524 Scenic Avenue
Berkeley, CA 94708
Phone: 510.548.5062
Fax: 510.548.5508
Email: lfeingold1@earthlink.net

INTRODUCTION

Disability rights laws can be powerful tools for achieving access to information and information technologies. What are these laws and how are they being used in the real world? How can individual persons with disabilities as well as advocacy organizations use existing civil rights laws to increase information access? How can these laws be used creatively to encourage collaboration between industry, government, service providers and persons with disabilities? How can advocates avoid the pitfalls of litigation yet use these laws to their full advantage? These are some of the issues that will be explored in this session.

LAWS THAT CAN BE USED TO INCREASE THE ACCESSIBILITY OF INFORMATION AND INFORMATION TECHNOLOGY IN THE UNITED STATES

(1) Americans with Disabilities Act (statute: 42 U.S.C. 12181 et. seq):

Title I of the ADA, governing the employment of persons with disabilities by private employers, mandates that employers provide reasonable accommodations to covered employees if doing so does not create an undue burden. Providing accessible technology, information in alternative formats, and web accessibility are examples of types of reasonable accommodations that may be required. Title I regulations, issued by the Equal Employment Opportunity Commission, are found at 29 C.F.R. 1630 et seq.

Title II of the ADA governs state and local government entities. In addition to a basic non-discrimination mandate, this section requires that the programs, services and activities of these entities be accessible to and usable by persons with disabilities. There is also an express obligation to provide auxiliary aids and services to effectively communicate with persons who cannot see visually delivered information or cannot hear aurally delivered information. As government entities provide increasing amounts of information on the Internet, web accessibility of public information becomes a matter of increasing concern. Title II regulations, issued by the U.S. Department of Justice, are found at 28 C.F.R. Part 35, sections 35.101 et seq.

Title III of the ADA requires nondiscriminatory treatment in the provision of goods and services by entities who own, lease or operate a place of public accommodations. The right to "effective communication" is expressly set forth in both the ADA itself and in implementing Title III regulations, which are found at 28 C.F.R. Part 36.

Department of Transportation ADA regulations Department of Transportation Regulations implementing transportation provisions of the ADA, including the right to accessible transit information, may be found at 49 C.F.R. Part 37 http://www.fta.dot.gov/library/legal/adar.htm. 49 C.F.R.37.167(f) specifically requires that "the entity shall make available to individuals with disabilities adequate information concerning transportation services. This obligation includes making adequate communications capacity available, through accessible formats and technology, to enable users to obtain information and schedule service." For DOT accessibility information generally, see http://www.dot.gov/accessibility/index.html

(2) Rehabilitation Act of 1973

Section 504 of the Rehabilitation Act Section 504 (28 U.S.C. 794(a) requires any entity receiving federal financial assistance to ensure program accessibility. Web-based information is often integral to programs of federally funded entities - and may often be the programs themselves.

Section 508 of the 1998 amendments to the 1973 Rehabilitation Act, 29 U.S.C. 794(d). Section 508 guarantees access to electronic and information technology procured by Federal agencies. The U.S. Access Board developed accessibility standards for the various technologies covered by the law, and those standards have been folded into the Federal government's procurement regulations. Further information may be found at http://www.section508.gov/ (GSA home page for section 508 compliance); http://www.access_board.gov/508.htm (Access Board's section 508 page, which contains links to 508 regulations and other information.).

(3) The Air Carriers Access Act This under-used 1986 statute, enforced by the Aviation consumer Protection Division of the U.S. Department of Transportation, prohibits discrimination in connection with air transportation and related services. The applicability of this law to the provision of information by airlines, either over the telephone, in person, or over the Internet, has not been explored. Further information may be found at http://airconsumer.ost.dot.gov/

(4) State Civil Rights Laws: The civil rights laws of various states provide varying degrees of protection to the civil rights of persons with disabilities, and may or may not particularly address the right to accessible information and technology. A useful compilation of state information technology accessibility laws, policies, standards and other resources that are available on-line was compiled in April 2003 by the Information Technology Technical Assistance and Training Center (ITTATC), Georgia Institute of Technology, and is available on line at http://www.ittatc.org/laws/stateLawAtGlance.cfm

(5) The "Help America Vote Act of 2002" (HAVA) The right to accessible election information and independent access to voting technology is critical to the ability of persons with disabilities to exercise basic citizenship rights. Current information on laws affecting the rights of persons with disabilities to vote may be found on the website of the American Association for Persons with Disabilities at www.aapd.com. and at http://www.electionaccess.org/publications/AP_TOC.htm (international information). HAVA, passed by the U.S. Congress in 2003, impacts significant aspects of the voting process, including voting machines, provisional ballots, voter registration and poll worker training. Election officials, legislators, and advocates in each state are responsible for making HAVA work properly to insure the most inclusive, timely implementation possible. HAVA allocates $850 million to provide accessible voting. It mandates one accessible voting system in every polling place by January 1, 2006 and covers all related costs. It allocates $100 million to make polling places physically accessible, but there is no national definition of "accessible" or a deadline for implementation. (See also Voting Accessibility for the Elderly and Handicapped Act of 1984.)

(6) Telecommunications Act of 1996 and the Telecommunications Act Accessibility Guidelines of 1998, 36 CFR Part 1193. This law imposes accessibility obligations on manufacturers of telecommunications equipment and customer premises equipment. The Act is enforced by the Federal Communications Commission with which consumers may file complaints. Further information is available at http://www.access_board.gov/telecomm/FAQ.htm

(7) Individuals with Disabilities in Education Act This federal law, often referred to as Public Law 94-142, requires public schools to make available to all eligible children with disabilities a free appropriate public education in the least restrictive environment appropriate to their individual needs. Under the law, each eligible student must receive an Individualized Education Program, which will often address access to technology and information, and increasingly, to the Internet. (Useful information regarding the IEP process may be found at http://www.ed.gov/offices/OSERS/OSEP/Products/IEP_Guide/ .) The right to accessible information in the education context is also addressed by Section 504 (for educational institutions receiving federal financial assistance) and the ADA Title II (for state and local educational institutions) and Title III (for private schools.) See http://www.ed.gov/offices/OCR/index.html for information concerning the U.S. Department of Education enforcement of education rights under section 504 and the ADA. State laws may also specifically address educational rights to accessible information in various contexts. See, for example, California's 1999 Distance Education: Access Guidelines for Students with Disabilities at http://www.htctu.fhda.edu/dlguidelines/final%20dl%20guidelines.htm.

REAL WORLD APPLICATIONS: HOW LAWS BEING USED TO INCREASE ACCESS TO INFORMATION AND INFORMATION TECHNOLOGY

Through informal and formal advocacy, structured negotiations, administrative complaints, and litigation, the laws summarized above are being used across the country to increase the accessibility of information and information technology. A sampling of recent developments and resources follows:

Just as technology is constantly evolving, advocacy and legal strategies for increasing accessibility to that technology must be flexible and creative. Laws on the books provide invaluable tools for access and should be put to use - in as collaborative a manner as possible -- to ensure that persons with disabilities are fully included in all aspects of today's evolving society.


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