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The Rehabilitation Act of 1973 was the first "rights" legislation to prohibit discrimination against people with disabilities. This law targets those specific programs and activities conducted by federal agencies (those receiving federal funds) such as colleges participating in federal student loan programs, federal employment, and employment practices of businesses with federal contracts. It states that no qualified individual with a disability in the United States, shall, solely by reason of her or his disability, be excluded under any program or activity receiving federal financial assistance, or under any program conducted by any executive agency, including the United States Postal Service.
The standards for determining employment discrimination under the Rehabilitation Act are the same as those used in Title I of the Americans with Disabilities Act (ADA). Sections 504 (included in the 1973 Act) and 508 (part of the Act Amendments of 1998) are the two most commonly invoked sections that prohibit discrimination based on a disability and mandate that all federally funded agencies provide equal access to technology and information for all people.
Section 504 of the Rehabilitation Act of 1973 prohibits discrimination against an individual with a disability, working or participating in federally funded programs or activities. It compensates otherwise qualified individuals who have been discriminated against because of a disability. In cases of intentional discrimination, Section 504 has been invoked to elicit punitive damages (in addition to remedial compensation) from a defendant, in an effort to deter other possible offenders.
To succeed under a Section 504 claim, the individual must show that his or her disability was the sole reason for adverse action. Any programs or services receiving federal funds are subject to Section 504. For example, termination of a federal employee for the sole reason that the employee is infected with Auto Immune Deficiency Syndrome (AIDS), yet was able to perform all other job functions, would be basis for action under Section 504.
Where other factors are involved in a decision to terminate, a Section 504 action will not succeed. For example, in a 1995 Minnesota case, an ex-housing authority executive director attempted to sue the Housing Authority Board under Section 504 on the basis that she was discriminated against due to her disability. The employment record showed poor job performance evaluations, and an admission by the ex-employee that the job relationship was generally not working out. These additional factors involved in the dismissal showed that her disability was not the sole factor (if a factor at all) in her dismissal. Demming v. Housing and Redevelopment Authority of Duluth, Minnesota, 63 F.3d 950 (8th Cir. 1995). Thus, her claim did not succeed.
The act is narrower than ADA in that it prohibits discrimination by groups that receive any amount of federal funding. Under the ADA, even a private entity that receives no federal funding is expected to comply with all accessibility regulations if it is regularly accessed by the public. On the other hand, the definition of disability under Section 504 is broader than the definition used in the Individuals with Disabilities Education Act (IDEA). Although IDEA applies only to students receiving a free appropriate education until graduation at high school level, the class of individuals is smaller than is covered under Section 504. Section 504 covers students with communicable diseases (e.g. hepatitis), alcohol or drug addiction, those with temporary disabilities, and students with allergies or asthma. Section 504 also provides for reasonable accommodations for parents with disabilities at school functions, such as PTA meetings.
Hearing aid compatible telephones incorporate an electromagnetic coil in the telephone receiver that emits a magnetic field. The electromagnetic emission is detectable as sound by some hearing aids. The Hearing Aid Compatibility Act requires that telephones (except cellular phones) manufactured or imported after 1989 contain this coil. The rule requires that phones in workplace, confined settings, emergency locations and hotels also feature this coil. Additionally, the Act requires the phones to have volume control capability.
It is not always clear without testing to know if a telephone is hearing aid compatible. And while no retrofitting of existing phones is required by law, a deadline for replacement of old telephones has now been set. The deadline was set beyond the normal life of a telephone, and varies by the age of the telephone. Most phones in the workplace must have been replaced by January 1, 2000; however, phones purchased between 1985 and 1989 are given until 2005. The act allows for employers to assume their phone is compatible, if purchased after 1989.
If a phone is incompatible, an employee or guest can request a compatible telephone. The law requires the employer to comply with the request. To reduce confusion regarding compatibility, phones manufactured after April 1, 1997 must be marked "HAC" if they are hearing aid compatible and meet the standards of the Act.
Congress enacted the Americans with Disabilities Act (ADA) in 1990 to protect persons with disabilities from discrimination based on their disability. Until that point, individuals with disabilities had no legal remedy by which to fight unequal treatment by employers and landlords; unequal access to public buildings, recreational facilities and public transportation; and substandard education and health services. Comparable to laws which prohibit discrimination based on race, color, sex, age and religion, the ADA gave individuals equal opportunity to enjoy the same public services the rest of the population enjoy.
In order to seek protection under the ADA, a person must meet the statutory requirements defining "disabled." To be considered disabled, he or she must posses a physical or mental impairment that substantially limits one or more of his or her major life activities; have a record of such impairment or be regarded as having such an impairment. The impairment must be long-term or permanent. Pregnancy, for example, can substantially limit certain life activities but is a temporary situation. Thus a pregnant person is not considered disabled. Further, Supreme Court decisions have excluded persons with conditions that are readily corrected with medication or devices, such as diabetes or imperfect vision.
The ADA is divided into five main titles. The first addresses employment issues. Discrimination in the work place continues to disadvantage individuals socially, economically and educationally. Both private and government employers are now required to focus on an individual’s level of job performance, as opposed to an individual’s disability. Where a reasonable accommodation can be made to facilitate the individual, an employer must comply. The ADA does not require an employer to give preferential treatment to a disabled person; the employee is still required to meet performance standards and possess skills necessary to meet the essential requirements of a particular job. If a reasonable accommodation can be made that puts the employee on the same or better skill level than others, the employer must comply. Case law illustrates that something as simple as rearranging a work schedule or providing special software or furniture is a reasonable accommodation, and can increase individual productivity, as well as provide for valuable input to the company as a whole.
The second title of the ADA addresses public services, which include state and local government instrumentalities. Any service provided by a government entity that is accessible to a non-disabled person must also be accessible to a disabled person. For example, public hearings or meetings must provide a written transcript, a sign language interpreter or a sound amplification system to accommodate deaf individuals. Public transit systems, such as buses and railroads, must be accessible to individuals with disabilities. Court decisions have further explained that the public entity, not the individual, can choose among various alternatives of accommodation. It need not choose the most modern or expensive method, as long as the result is effective communication.
Title three requires that any places, publicly or privately owned, that are accessible to the general population, must also be accessible to the disabled. New structures must be built pursuant to specific dimensional standards. Existing facilities must remove barriers to accessibility, if readily achievable. A reasonable effort at accommodation must be made. This includes posting raised-letter or Braille signs for the visually impaired, or installing a wheelchair ramp near an entrance. Where it is impractical or impossible to build a wheelchair ramp, a door bell may be installed to notify someone that help is necessary. Courts have held that a reasonable accommodation does not have to be the most expensive alternative, but an efficient method by which to meet the need of the individual.
The ADA, under Title IV, also requires telecommunications companies that offer telephone service to the general public to have a telephone relay service available to individuals who use telecommunication devices for the deaf (TTYs). The Federal Communications Commission has issued rules that implement this requirement. The FCC oversees use of standard operating systems, confidentiality of calls, and prohibition from intentionally altering a relayed conversation
Title V of the Act forbids threatening or retaliating against individuals with disabilities, or those attempting to aid people with disabilities, in asserting their rights. This protects people, such as the parents of a disabled child, who are not disabled themselves, but have a strong relationship to the child and advocate on his behalf.
In an effort to provide equal access to television medium by the deaf and hearing-impaired, the act was passed to require new televisions to have built-in decoder circuitry. Closed-captioned television transmissions have made it possible for people with hearing disabilities to gain access to television, and serves to improve the quality of their life. The act helps not only those born with a hearing disability, but people who experience loss of hearing throughout their lives. Furthermore, closed captioning improves reading skills in children and literacy in adults, and helps immigrants who are learning English as a second language.
In the past, if consumers wanted to take advantage of closed captioning, they had to buy a separate decoder and connect it to the television. The act recognized that as of 1990, technology was available that enabled the closed caption decoding to be built into television sets during the manufacturing process. The availability of decoder-equipped televisions has greatly increased the audience, and the increased size of the market now provides a larger consumer base for advertisers.
The law requires that all televisions, 13 inches or greater in size that are manufactured or imported into the United States comply with the internal decoding circuitry. The law also envisioned that closed captioning would continue to be made available on new televisions as technology progressed. As a result, in July 2000, the Federal Communications Commission amended its rules to require closed captioning display capability in digital television receivers.
The ADA mandates captioning for all government-funded public service announcements. In addition, Presidential and Vice-Presidential candidates will not receive federal campaign money unless they caption their commercials. A candidate for either office must certify that any television commercial prepared or distributed will be accompanied by closed captioning of the oral content of the material.
The Federal Communications Commission (FCC) proclaims the implementation of Section 255 of the Telecommunications Act of 1996 "the most significant opportunity for people with disabilities since the passage of the Americans with Disabilities Act in 1990." When signed into law in 1996, Section 255 updated the Communications Act of 1934, which was consequentially renamed as the Telecommunications Act of 1996. The Access Board and the FCC were given 18 months to develop accessibility guidelines for telecommunications equipment. Section 255 mandates that, if readily achievable, telecommunication service and equipment be accessible to and useable by persons with disabilities. When determining if an alteration is "readily achievable," the FCC will look at such factors as technical feasibility of implementing the design, expense of design or development, additional time required to design equipment, and defining fundamental characteristics of a product.
"Now, just as persons with disabilities can navigate our public streets because of the ADA’s requirements for curb cuts, all our citizens can navigate the information superhighway without confronting barriers that stop them cold," declared FCC Chairman William Kennard in his statement dated July 14, 1999.43 Dialing numbers on a telephone, checking messages from voice-mail, or doing business via an automated response system, is an essential and efficient part of every day life. For persons with disabilities, these activities may be impossible. Section 255 seeks to resolve this discrepancy in accessibility.
The Act adopted the same definition of disability as the ADA, thus affecting the same group of people, and allowing incorporation of legal precedent into defining the legal parameters of the term.
The Individuals with Disabilities Education Act was amended in 1997 to significantly improve educational opportunities for children with disabilities. The Act provides all children equal access to a common curriculum, rather than separating or excluding those with disabilities. A team consisting of educators, parents and doctors assesses each child with a disability. Based on those results, students are then mainstreamed into classrooms, given the appropriate supplementary aids and services.
The success of the program relies on the mandatory, individualized assessment of the child’s current educational level, accessory needs, expected performance levels and regular checks of progress. Based on the idea that a child with a disability will thrive and advance more rapidly when placed in classrooms, and allowed to participate in activities with nondisabled students, Individualized Education Programs (IEP) are developed, monitored and updated regularly. The IEP program requires involvement from parents, students and teachers. Regular meetings are required to discuss academic progress, short-term objectives and long-term goals of the student, so that he or she may be prepared for post-graduation employment and other activities.
Through these individualized meetings, specific augmentative needs for the child are also assessed. The team of educators and parents determine whether the child needs special aids, services, or accommodations. Based on reports prepared at these meetings, the public agency must ensure that all service requirements set forth in the IEP are provided, at no cost to the parents. However, a parent may not insist on any accommodations until after an IEP is established. (In special cases an interim, or temporary IEP may be developed). A school may be required to provide computer equipment, make modifications to school grounds or vehicles, or provide additional staff to meet the needs of the child. The aim of the program is to develop the least restrictive environment, monitor progress regularly, and educate a child with a disability to the same high academic and performance standards given to children without disabilities.
A child with a disability, just as a child without a disability, is also subject to disciplinary guidelines. A school may remove a child for up to ten school days at a time for any violation of school rules. Suspension or expulsion of the child, however, cannot be based on behavior that is a manifestation of his or her disability. Intentional acts such as possession of dangerous weapons or controlled substances, are subject to the school’s regular disciplinary procedure, and may require long-term removal or expulsion. At this point, the school may request a hearing officer to determine appropriate measures. During any long-term removal for behavior that is not a manifestation of disability, schools are still required to provide services, to the extent deemed necessary, to enable the child to appropriately progress through the IEP. A student may not be removed for more than 10 days if disruptive behavior is a manifestation of the disability.
A student’s right to a free appropriate public education terminates upon graduation with a regular high school diploma. IDEA, therefore, is effective only for the duration of education through a secondary education.
The Assistive Technology Act (the AT Act) was a renewal and expansion of the Technology-Related Assistance for Individuals with Disabilities Act of 1988. It provides federal support to states for researching and promoting assistive technology for individuals with disabilities. The 1988 law first defined assistive technology as a combination of devices and services. An AT device is any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain or improve functional capabilities of individuals with disabilities. "Devices" include the full range of technology from day-to-day living tools to prosthetics, medical equipment, wheelchairs, all the way up to the most complex computer communications systems. An AT service includes any service that directly assists an individual with a disability in the selection, acquisition, or use of an assistive technology device.
The AT Act affirms that assistive technology is a valuable tool to improve the lives of people with disabilities, and provides the framework by which federal government will promote access to AT devices and services. Under the plan, all 50 states plus the District of Columbia, Puerto Rico and outlying areas are eligible to receive support. Funding is provided initially for 10 years, and may be increased by 3-year increments if further eligibility is demonstrated.
To receive funding under Title I of the Act, states are required to support public awareness programs, promote interagency coordination that improves access to assistive technology devices, provide technical assistance and training, and provide outreach support to statewide organizations that provide AT devices and services. For 1999 $30 million was appropriated.
Title II of the Act relates to coordinating federal efforts pertaining to assistive technology and universal design research. It includes grants for small business research, unique individual AT needs, and technical training for people who develop AT devices. Title III allows the Secretary of Education to award grants to pay for specified costs, or provide alternative (low interest) financing to purchase assistive technology components for people with disabilities.
Assistive technology is now seen as a valuable tool that can be tailored to address the unique strengths and weaknesses of each individual with a disability. Devices can be customized to fit the appropriate setting in which that individual works or lives, in doing so focusing on specific tasks the individual performs. Advances in technology make tools more portable and accessible.
As the area of AT progresses, more and more products developed to assist individuals with disabilities are crossing over into mainstream or "universal design" areas. Legislation requiring closed-captioned circuitry in televisions has proven useful for hearing customers attempting to watch TV in a crowded bar. Voice recognition software is being used at work, at home and in the military. Private and government laboratories alike have found new purpose in developing this technology.
Section 508 of the Rehabilitation Act of 1973, as amended in 1998, requires Federal departments and agencies to comply with accessibility requirements when they procure, develop, use or maintain electronic and information technology (E&IT), unless it is an undue burden (defined as "significant difficulty or expense"). As directed by law, these requirements include standards developed by the U.S. Access Board. The standards are based on recommendations from an advisory committee the Board established for this purpose.
The intent of Section 508 is to ensure that federal employees and members of the public with disabilities have access to and use of E&IT comparable to that of the employees and members of the public without disabilities.
E&IT includes products that store, process, transmit, convert, duplicate, or receive electronic information, copiers, computers, fax machines, information kiosks, software, operating systems, websites and telecommunications equipment and services. The Section 508 standards provide technical and performance criteria that spell out what makes E&IT accessible to people with vision, hearing, speech, and mobility disabilities.
The Section 508 standards were published in the Federal Register on December 21, 2000 (65 FR 80500). Later, they were fully incorporated into the FAR (Federal Acquisition Regulations) and became enforceable on June 25, 2001 (48 CFR Parts 2, 7, 10, 11, 12, and 39). Only procured E&IT is subject to enforcement. The Section 508 standard provides (in Subpart A) a list of exceptions that agencies may claim as reasons for procuring a non-conforming product, such as lack of commercial availability.
The law includes an administrative complaint process. When an employee or member of the public files a complaint claiming an agency’s procurement is not in compliance, the process for handling that complaint will follow already established procedures that exist under Section 504 of the Rehabilitation Act. Individuals may also file a civil action against an agency to seek injunctive relief and attorney’s fees (but not compensatory or punitive damages).
The scope of Section 508 and the Board’s standards is limited to the Federal sector. Section 508 is not a requirement for the industry. However, since the federal government spends billions of dollars on E&IT, it is in the interest of the industry to develop products that conform to the Section 508 standard, so that the federal government will be inclined to procure them. Since one method of conformance with the standards is compatibility of E&IT with assistive technology, the Section 508 standard supports the AT industry. Therefore, it is important for the AT and E&IT industries to work closely together to ensure interoperability between E&IT and AT.
The Access Board and the General Services Administration (GSA) are directed to provide technical assistance to individuals and federal agencies concerning the requirements of Section 508. Their websites, respectively, are www.access-board.gov and www.section508.gov.
43See http://www.fcc.gov/Bureaus/Mass_Media/News_Releases/2000/nrmm0031.html