The Accessible Future
June
21, 2001
National Council on Disability
1331 F Street, NW, Suite 1050
Washington, DC 20004-1107
202-272-2004 Voice
202-272-2074 Text Telephone
202-272-2022 Fax
This report is also available in alternative formats
and on NCD's award-winning Web site (www.ncd.gov).
The views contained in the report do not necessarily
represent those of the administration, as this document has not
been subjected to the A-19 executive branch review process.
Letter of Transmittal
June 21, 2001
The President
The White House
Washington, DC 20500
Dear Mr. President:
On behalf of the National Council on Disability (NCD),
I am pleased to submit a report entitled The Accessible Future.
The report was developed with the advice of NCD's Tech Watch federal
advisory committee, a group of experts in technology and disability
from around the country.
The rapid advances in our nation's electronic information
and technological capability are inspiring. In this successor era
to the Industrial Age, information is more and more the principal
commodity of commerce, and technology, ranging from the computer
to the information kiosk, from the electronic message board to the
DSL line, is more and more the medium for transmission, storage,
and manipulation of that information. Access to information technology
is increasingly the arbiter of success and the source of opportunity
in education and employment.
For America's 54 million people with disabilities,
however, access to such information and technology developments
is a double-edged sword that can release opportunities or sever
essential connections. On the one hand, such developments can be
revolutionary in their ability to empower people with seeing, hearing,
manual, or cognitive impairments through alternative means of input
to and interaction with the World Wide Web, information transaction
machines, and kiosks. On the other hand, electronic information
and technological developments can present serious and sometimes
insurmountable obstacles when, for example, basic principles of
accessibility or universal design are not practiced in their deployment.
By and large, federal enforcement of key laws (i.e.,
the Americans with Disabilities Act, Section 255 of the Telecommunications
Act of 1996, and Section 508 of the Rehabilitation Act of 1973,
as amended) as it relates to electronic and information technology
(E&IT) is in its earliest stages. In this report, E&IT specifically
involves the Internet, the World Wide Web, and select information/transaction
machines.
To ensure that the new Information Age includes all
Americans in the bounty of opportunities that are being created,
NCD has taken a prospective look at the laws related to accessible
electronic and information technology as an emerging civil rights
concept. In this respect, NCD has examined the status of those federal
entities responsible for implementing laws that protect the rights
of persons with disabilities that relate to accessible electronic
and information technology. Included in this report are public policy
interventions that we recommend as part of an overall strategy to
make the electronic bridge to the 21st century available to all
Americans.
Our recommendations are in line with the focus of
your New Freedom Initiative's emphasis on expanding the use and
application of technology by people with disabilities at home, at
work, and throughout the course of their daily lives. NCD stands
ready to work with you and stakeholders outside the government to
see that the agenda set out in the attached report is implemented.
Sincerely,
Marca Bristo Chairperson
(The same letter of transmittal was sent to the President
Pro Tempore of the U.S. Senate and the Speaker of the U.S. House
of Representatives.)
National Council
on Disability Members and Staff
Members
Marca Bristo, Chairperson
Hughey Walker, First Vice Chairperson
Kate Pew Wolters, Second Vice Chairperson
Yerker Andersson, Ph.D.
Dave N. Brown
Edward Correia
John D. Kemp
Audrey McCrimon
Gina McDonald
Bonnie O'Day, Ph.D.
Lilliam Rangel-Diaz
Debra Robinson
Gerald S. Segal
Ela Yazzie-King
Staff
Ethel D. Briggs, Executive Director
Jeffrey T. Rosen, General Counsel and Director of Policy
Mark S. Quigley, Director of Communications
Kathleen A. Blank, Attorney/Advisor
Gerrie Drake Hawkins, Ph.D., Program Specialist
Martin Gould, Ed.D., Research Specialist
Pamela O'Leary, Interpreter
Allan W. Holland, Accountant Officer
Brenda Bratton, Executive Secretary
Stacey S. Brown, Staff Assistant
Carla Nelson, Office Assistant
Edward J. Heaton, Fellow
Acknowledgments
This report is the product of a team effort and incorporates
the work of many people. First and foremost, the research and interviews
were conducted, and a report to the National Council on Disability
(NCD) prepared, through a contract with Stephen Mendelsohn. Stephen
Mendelsohn is a lawyer, a policy researcher, and a creative writer
about information technology.
Second, the task of assisting NCD in reviewing and
commenting on the analysis, conclusions, and recommendations in
the final report was handled by members of Tech Watch. NCD wishes
to express its appreciation to the following Tech Watch members
who participated in the development of this report: Bonnie O'Day
(chair), Debbie Cook, Kelly Pierce, and Paul Schroeder.
While the views contained in this report do not necessarily
represent those of the Administration, NCD would also like to thank
the people who gave of their time and agreed to participate in the
development of this report. Special acknowledgment goes to the staff
of the Equal Employment Opportunity Commission, the Department of
Education, the Federal Communications Commission, the Architectural
and Transportation Barriers Compliance Board (Access Board), the
Department of Justice, the General Services Administration, and
the other federal agencies that not only answered many questions
but gathered documents and shared data with the research team. In
addition, they reviewed preliminary drafts of the contents of this
document for technical accuracy.
Contents
Executive Summary
Key Findings
Recommendations
Chapter I -- Introduction and Overview
Chapter II -- A Brief History of Information and Technology
Accessibility
Chapter III -- The Legal Framework of Information Technology
Access Rights
Chapter IV -- Current Status of Accessibility Implementation
and Enforcement
Chapter V -- Findings
Chapter VI -- Recommendations
Endnotes
Appendix -- Mission of the National Council on Disability
This report is the fourth
in a series of civil rights monitoring studies designed to evaluate
the effectiveness of major civil rights laws bearing on the lives
of Americans with disabilities. Previous reports in the series have
examined the implementation of the Americans with Disabilities Act,
the Individuals with Disabilities Education Act, and the Air Carrier
Access Act.
Executive
Summary In the currency of daily life, what
is more important yet more taken for granted than access to information?
But for many people with disabilities, the information access and
exchange that most of us take for granted is difficult or impossible,
or can be achieved only with the intervention of third parties or
through the use of Electronic and Information Technology (E&IT).*
The reasons people with disabilities lack access to information
in our society are perhaps more significant and certainly more within
our control than the lack itself. The explanation increasingly lies
not in disability, but in the design of the technology that mediates
our access to and use of all types of information.
For Americans generally, the expectation of access
to information is taken for granted, almost to the point of being
considered a right. Who would question that in America we advertise
job openings so the broadest range of qualified people may have
the opportunity to compete for them? We attach such importance to
timely notice from government regarding its decisions about our
lives--denial of a disability claim, demand for additional taxes,
granting of a driver's license--that our rights to such information
are enshrined in law, even reaching the status of constitutional
due process. And we recognize that information from and about government
is essential to the functioning of our democracy and to the individual's
exercise of the responsibilities of citizenship. How outraged would
we be if the opportunity to compete for the promotion were not posted,
if the grant or denial of our driver's license were never made known,
or if the text of official pronouncements were not published?
No one would dispute that people with disabilities
have the same right and need for information everyone else has.
Paradoxically, at the very time when many people comfortably assume
that technology is steadily bringing people with disabilities more
opportunities for access than they have ever known before, this
same technology (coupled with the attitudes and expectations of
those who use it) may in many cases be reinforcing patterns of exclusion
and isolation.
This report looks at federal enforcement of key laws
(i.e., the Americans with Disabilities Act [ADA], Section 255 of
the Telecommunications Act of 1996, Section 508 of the Rehabilitation
Act, as amended) and how such enforcement relates to electronic
and information technology. As used in this report, E&IT particularly
involves the Internet, the World Wide Web, and select information/transaction
machines.
Key
Findings It is clear from our documentary
and empirical research that individual leadership and commitment
on the part of officials and staff, particularly federal agencies,
largely accounts for the relative success, particularly internally,
in implementing pro-accessibility measures. A corollary finding
is that institutionalization of these practices and policies remains
tenuous but is both necessary for and aided by the emergence of
new leadership.
- The report documents some of the steps agencies
have taken to enhance E&IT accessibility that are worthy of
emulation.
- The adverse and predictable results of E&IT
inaccessibility on the lives of people with disabilities constitute
discrimination, albeit unintentional, where technology that could
substantially reduce the disparity exists but is not used.
- Existing civil rights laws appropriately take costs
into account in determining whether particular E&IT-oriented
accommodations or accessibility strategies are too costly. But
they do so in ways that accentuate the size and visibility of
such costs while concealing the costs of access denial.
- The current legal framework for E&IT accessibility
is actually a patchwork of laws covering certain categories of
technology in some settings, other categories in other settings,
but nowhere reflecting an overview or comprehensive assessment
of either the issues or the solutions.
- Without partnership with government and consumers,
the marketplace is not well suited to redressing the E&IT
access gap on its own. Normal competitive pressures do not operate
to encourage fully accessible design of mainstream E&IT products,
though the latent demand for such devices is considerable.
- Changes in technology and in the interpretation
of all civil rights laws emanating from the courts will require
the rethinking of both our definition of E&IT and our approach
to advocacy on behalf of its heightened accessibility.
Nature of the Problem
Recent and frequent discussions of the "digital divide"
problem have demonstrated the existence and consequences of major
disparities in our society between information haves and have-nots.
The harm attributable to the information gap is severe, both for
those denied opportunity and participation as a result of it and
for society as a whole. While Americans with disabilities can all
too often be counted on the have-not side of the information and
information access equation, the reasons and remedies for this exclusion
are not so well or widely understood.
A few examples drawn from our everyday technology
and experience illustrate this point. The cellular telephone which
has brought so much convenience to so many has also created new
barriers to telecommunications access for people who are deaf or
hard of hearing because such phones have largely lacked hearing
aid compatibility. Banks that once employed tellers to serve their
customers now rely on ATM machines, telephone service lines, and
the Internet. Each of these information technologies poses severe
access barriers for people with various disabilities. People who
cannot see the information and prompts on the screen are effectively
barred from using automated teller machines (ATMs). People who cannot
enter long strings of account or card numbers before voice response
systems "time out" are prevented from using all kinds of automated
customer service lines. And people who cannot use a mouse may be
precluded from accessing many online applications and opportunities
in the commercial sector.
As isolating as these limitations are, their impact
is all the more frustrating because they are largely needless. If
design principles and technological capabilities did not exist for
making our E&IT accessible to persons with disabilities, regrets
might be in order. However, such techniques for the most part do
exist and can usually be implemented at little cost, with minimal
disruption to industry, commerce, and other technology users. Questions
thus arise about why such enhancements are not more widely utilized
and what can be done to bring about their use.
One part of the answer to these questions can be found
in law. The civil rights provisions discussed in this report are
among the methods chosen by society to help minimize the information
access gap between people with disabilities and people without disabilities.
In the end, though, laws cannot do what people resist.
Access to Electronic and Information Technology as
a Civil Rights Concept
This civil rights concept of access to E&IT forms
part of the requirements of three major federal laws: ADA, the Rehabilitation
Act of 1973, as amended, and the Federal Rehabilitation Act. In
this study, E&IT refers to such technology. The term E&IT,
used in Section 508, derives from the Clinger Cohen Act of 1996,
the major statute dealing with Federal Government information resources
and information management practices.
Although E&IT is a relatively new and perhaps
unfamiliar term to some, we believe it will become the predominant
term used in discussions of information technology access rights.
The range of devices falling within the definition of E&IT is
inclusive, encompassing all equipment, software, and Web sites used
for creation, storage, transmission, or manipulation of information
and data. Our major focus here will be on computers (including software
and peripherals), telecommunications equipment, ATM machines, and
information kiosks (including Web-based kiosks), and other Internet
Web sites and resources.
The concepts and issues dealt with in this report
are likely to move to the center of our attention and concern as
technology becomes an increasingly fundamental tool in our daily
lives and as information itself increasingly becomes the medium
and commodity of exchange in our society.
Roadmap of the Report
The research was conducted to answer three basic questions:
- Is access to E&IT by Americans with disabilities
sufficiently fundamental to rise to the level of a civil right?
- Which laws establish civil rights protections around
E&IT access and how are those laws being applied and enforced?
- What changes in law or practice would be most effective
in fulfilling the goals of E&IT access equality for all Americans?
Chapter I sets out a framework
for understanding the issues surrounding E&IT access and for
understanding why these issues are important. It explores the demographic,
economic, and equity issues associated with information inaccessibility
for people with disabilities; explains that the constituency for
E&IT accessibility is not limited to people with sensory disabilities;
and discusses the implications of this subject for society as a
whole, as technology changes and our population ages.
Chapter II presents a historical
overview of the development of accessibility concepts and laws.
It examines the origins and development of the concept of accessibility
in connection with the built environment and traces the application
of this concept to information. It then describes evolutionary changes
in communications and information technology that have brought about
the elaboration of new legal models for advancing the E&IT accessibility
concept. This chapter carries through to the present, where access
to information technology ranging from computers to kiosks, Web
pages to electronic building directories, is tantamount to access
to information itself.
Chapter III explains the
major current legal provisions bearing on this subject. These include
the "reasonable accommodations," "effective communications," and
"auxiliary aids and services" provisions of the ADA; the telecommunications
equipment, customer premises equipment, and telecommunications services
accessibility/compatibility requirements of Section 255 of the Communications
Act; and the accessible E&IT procurement and use by federal
agencies requirements of Section 508 of the Rehabilitation Act.
The chapter examines the ways in which each statute
bears on E&IT accessibility and draws on statutory, regulatory,
and case law sources to assess the role of each law.
Chapter IV analyzes and documents
the administration and implementation of these laws by the responsible
federal agencies. It begins by discussing the accessibility of information
sources about the law. It then reviews the extent and quality of
documentation generated by the enforcement agencies concerning the
E&IT accessibility potential under each law, including important
new forms of documentation such as the Department of Justice's Section
508 federal agency self-evaluation reporting system.
Next the chapter analyzes nondocumentary aspects of
enforcement including elements of agency culture relating to case
finding, issue prioritizing, complaint handling, and other matters.
This is followed by discussion of the agency strategic
planning process as a vehicle for implementing long-term and accountable
E&IT accessibility policies and practices. The chapter concludes
with a discussion of the current and potential role of federal grants
and contracts for providing goods, services, and information to
the public (including programs ranging from Medicare and Medicaid
to one-stop employment services) as sources of authority for extending
E&IT accessibility requirements beyond federal agencies.
Chapter V sets forth the
major findings of the report. It sets forth observations and conclusions
based on interviews and conversations with agency officials, technology
users, and advocates concerning how and why some federal agencies
have been more successful than others in implementing information
technology access rights.
The last section of this report, Chapter
VI, offers detailed recommendations for implementing and
enhancing current laws and practices to improve the accessibility
of the nation's information infrastructure, and the implementation
of the relevant civil rights laws. The recommendations are as follows:
Recommendations
1. Incorporate E&IT Accessibility into
the Agency Planning and Government-Wide Planning Processes at All
Levels
1.1 By presidential executive order, promulgate
and implement a national E&IT accessibility policy.
1.2 GPRA
Utilizing the opportunities afforded by the planning
process engaged in by federal agencies under the Government Performance
and Results Act (GPRA), all agencies with responsibility in the
civil rights area should be required to incorporate goals, objectives,
methods, and outcome criteria for development and use of accessible
E&IT in their GPRA plans.
1.3 Information Policy and Information Management
All information planning and E&IT policy development
should include and document due attention to the ways accessibility
considerations will be integrated into agency policies, practices,
and decisions. Appropriate guidance should be provided by the Office
of Management and Budget (OMB) concerning the means for documenting
this integration.
1.4 Government-Wide Information Planning
To the degree the Federal Government develops and
implements government-wide policies concerning the use of E&IT,
such policies and requirements must likewise provide for integration
of accessibility goals and standards into all activities and decision
making.
1.5 Federal Employee Training
All federal initiatives aimed at upgrading the
skills of the federal workforce should include provision for supplementary
training and resources in those cases where the use of assistive
technology or other factors alters or individualizes the training
process for employees with disabilities.
1.6 Alternative Measures When E&IT Access Is Not
Possible
Agency strategic and operational plans should include
provisions for how information access will be facilitated and assured
in those cases where accessible E&IT is not available.
2. Review the Federal Contracting Process to Encourage
Diffusion of Accessibility
2.1 Grants and Contracts
With appropriate guidance from the General Services
Administration (GSA), OMB, or other pertinent authorities, each
agency should review the entire range of contracts and grants under
which it administers and distributes federal funds to ensure that
all possibilities that the law allows for encouraging or requiring
E&IT accessibility practices on the part of contractors or grantees
are fully utilized.
2.2 Model Contract Language
The Federal Government should develop model contract
language for use in holding federal funds recipients to the highest
possible standards of accessibility in their nonincidental use of
E&IT.
2.3 Contractor and Grantee Technical Assistance
The government should ensure that all contracts
subject to accessibility requirements include provisions for availability
of appropriate technical assistance to those called upon to meet
accessibility expectations.
3. Establish Federal Web Site Quality Control
3.1 Auditing Federal Web Sites
Individual agencies and the Department of Justice
(DOJ) should develop a system for random periodic audit of Web sites
to ensure that standards of accessibility are being maintained.
3.2 Automate the Review Process
The government should seek to validate and deploy
techniques for minimizing labor intensity of Web site maintenance.
4. Systematically Address the Question of Cost-Effectiveness
4.1 Presidential Commission
The President should appoint a national commission,
including representatives of industry, government, and the disability
community as well as economists and demographers, to comprehensively
study and report on the nature of all costs and benefits associated
with both accessibility and inaccessibility of E&IT.
4.2 White House Conference
As a kickoff to the work of the national commission,
a White House summit on accessibility should be convened. This high-level
summit should bring together representatives of all the key sectors--business,
the disability community, government, and researchers--to identify
opportunities for effective and innovative partnerships in accessibility
policy, planning, research, and implementation throughout our economy
and society.
5. Involve Consumers in the Accessibility Process
5.1 Consumer Advisory Panels
Agencies should be encouraged to appoint consumer
advisory panels to advise and assist them in their efforts to achieve
E&IT accessibility for themselves and for their constituencies.
5.2 Consumer Support to Industry
The Federal Government, in partnership with the
E&IT industry, should investigate means for training, positioning,
and appropriately remunerating end-users with disabilities to assist
industry to develop effective accessibility strategies, to anticipate
access issues associated with new technologies or designs, and to
test and evaluate prototype devices and systems.
6. Enrich the Available Resources for Implementation
of Section 508
6.1 Additional Guidance
GSA, the Access Board, OMB, and the Federal Acquisition
Regulations Council need to undertake urgent collaboration to identify
the key unresolved implementation issues and provide meaningful
guidance so far as the law and their discretion permit.
6.2 Undue Burden Auditing
A system for periodic auditing of agency undue
burden filings should be developed.
6.3 Verification of Agency Self-Evaluation Questionnaires
DOJ should develop a procedure for verifying agency
self-reports concerning their levels of and progress toward E&IT
accessibility.
6.4 Compulsory Technical Assistance
Procedures should be developed for compelling agencies
with prolonged and serious 508 compliance problems to accept technical
assistance targeted to their areas of weakness.
6.5 Litigation Posture
DOJ should indicate how it will proceed in situations
where it is called upon to defend a federal agency in court against
a suit brought under 508 where DOJ possesses knowledge that the
agency is out of compliance with Section 508.
6.6 Reduce the 508 Exemptions Granted for Intra-Federal-Agency
Contracts
DOJ should clarify that when the Government Printing
Office (GPO) enters into contractual relationships with executive
branch agencies that would subject it to the requirements of Section
508 if GPO were not an exempt congressional agency, GPO is required
to comply with the requirements of Section 508 in its fulfillment
of tasks under such contracts.
7. Record-Keeping and Data Collection
Efforts should be immediately instituted to develop,
field test, disseminate, and analyze appropriate data collection
and reporting instruments.
8. Statutory Review
In conjunction with or as an element of the work
of the commission proposed under Recommendation 4.1, the President
and Congress should establish a joint blue-ribbon commission (or
should designate an existing entity, such as the National Council
on Disability [NCD]) to examine barriers to effective implementation
of E&IT accessibility that may exist in current federal laws,
and to recommend changes in law that will foster E&IT accessibility
in the public and private sectors.
9. Reinvigorate the Quality and Focus of ADA Enforcement
9.1 E-Commerce, Public Terminals, and the Internet
Through suitable regulations, interpretive guidance,
or case initiation, DOJ should take immediate and meaningful steps
to set forth its views concerning the applicability of Title III
to the Internet.
DOJ should also promulgate standards and requirements
for the accessibility of public terminals including electronic building
directories, point-of-sale card readers, library terminals, and
similar devices.
9.2 EEOC
The Equal Employment Opportunity Commission (EEOC)
should update its technical assistance and advisory materials for
private sector employers covered by Title I of the ADA to reflect
the placing of a high priority on E&IT accessibility, to explain
the meaning and importance of this concept in ways that clarify
how it differs from and affects the reasonable accommodation model,
and to expand lists provided to employers of organizational and
technical assistance resources to include entities and programs
that specialize in E&IT accessibility.
The EEOC should also issue a guidance on the interaction
between Section 508 and Section 501.
10. Intensify Monitoring and Enforcement Under Section
255
10.1 FCC Enforcement
The Federal Communications Commission (FCC) should
indicate what features and functions of the forthcoming new generation
of wireless telecommunications/customer premises equipment it regards
as capable of being made fully accessible under current conditions.
10.2 Remedies for Violation of Section 255
The FCC should issue a legal opinion concerning
how it would react and what position it would take if a consumer
attempted to bypass the Section 255 complaint process by bringing
suit in federal court for discrimination under the "common carrier"
provisions of the Federal Communications Act.
10.3 Market Monitoring Reports
In conjunction with the Access Board, the FCC should
institutionalize regular, periodic preparation and publication of
the telecommunications Market Monitoring Report.
10.4 Definition of Covered Telecommunications Services
The FCC should formally indicate the results of
its inquiries and deliberations into the permissible scope of Section
255's coverage of telecommunications services. If the Commission
determines that it has the legal authority to include so-called
"information service" under the scope of Section 255's coverage
of telecommunications services, it should immediately proceed to
institute the rulemaking process needed to accomplish this clarification.
If the FCC determines it lacks legal authority to do this, it should
join with others to support remedial legislation.
Conclusion
We live in what is called "the information society."
In this successor era to the Industrial Age, information is more
and more the principal commodity of commerce. Access to E&IT
is more and more the arbiter of success and the source of opportunity
in education and employment. Under these circumstances, it should
not be surprising that access to information and to the technology
generating, transmitting, and storing it has become a civil rights
issue for many people with disabilities and for our society. As
the importance of electronic and information technology access grows
in the way we conduct our lives, in the choices we make, and in
the decisions others make about us, the importance of this issue
can only grow. We must ensure that all Americans can participate
in the information society of the 21st century. This report represents
the best effort from NCD and E&IT consumers with disabilities
in providing a coherent set of recommendations, strategies, and
activities that, if implemented, will advance a better quality of
life for all Americans who use E&IT.
Chapter
I Introduction and Overview
A. Context for This Report
This report is the fourth in a series of civil rights
monitoring studies designed to evaluate the implementation and enforcement
of major civil rights laws bearing on the lives of Americans with
disabilities. Previous reports in the series have examined the implementation
of the Americans with Disabilities Act (ADA), the Individuals with
Disabilities Education Act, and the Air Carrier Access Act.1
Future reports will focus on the Fair Housing Amendments Act and
Section 504 of the Rehabilitation Act.
This report is submitted to the President and Congress
by the National Council on Disability (NCD). NCD is an independent
federal agency with 15 members appointed by the President of the
United States and confirmed by the Senate. The overall purpose of
NCD is to promote policies, programs, practices, and procedures
that guarantee equal opportunity for all individuals with disabilities,
regardless of the nature or severity of the disability, and to empower
individuals with disabilities to achieve economic self-sufficiency,
independent living, and inclusion and integration into all aspects
of society. NCD was initially established in 1978 as an advisory
board within the Department of Education (Public Law 95-602). The
Rehabilitation Act Amendments of 1984 (Public Law 98-221) transformed
NCD into an independent agency.
NCD plays a major role in developing disability policy
in America. In fact, NCD originally proposed what eventually became
the ADA. NCD's present list of key issues includes improving personal
assistance services, promoting health care reform, including students
with disabilities in high-quality programs in typical neighborhood
schools, promoting equal employment and community housing opportunities,
monitoring the implementation of ADA, improving Information technology
(IT) and telecommunication, improving assistive technology (AT),
and ensuring that persons with disabilities who are members of diverse
groups fully participate in society.
As part of its technology research agenda, NCD established
a community-based, cross-disability consumer task force on technology
in January 1995. Known as Technology Watch (Tech Watch), the 11-member
federal advisory committee provides information to NCD on issues
relating to emerging legislation on AT and electronic and information
technology (E&IT) and helps monitor compliance with civil rights
legislation, such as Section 508 of the Rehabilitation Act of 1973,
as amended.
This study differs from the previous reports in the
civil rights monitoring series in that instead of examining a single
statute, it focuses on an overarching concept embracing several
statutes. This civil rights concept of access to E&IT forms
part of the requirements of three major Federal laws: the ADA, the
Federal Communications Act, and Section 508 of the Rehabilitation
Act of 1973, as amended.
More specifically, this report looks at federal enforcement
of key laws (i.e., the ADA, Section 255 of the Telecommunications
Act of 1996, Section 508 of the Rehabilitation Act, as amended)
and how such enforcement relates to E&IT. E&IT specifically
involves the Internet, the World Wide Web, and select information/transaction
machines.
This report addresses the extent to which, under these
and other laws, information access may be considered a civil right
and how such a right can be implemented and enforced. The concepts
and issues dealt with in this report may initially be unfamiliar
to some readers, but they are likely to move to the center of our
attention and concern as E&IT becomes an increasingly fundamental
tool in our daily lives and as information itself becomes the medium
of exchange in our society. The research was conducted to answer
three basic questions:
- Is access to E&IT by Americans with disabilities
sufficiently fundamental to rise to the level of a civil right?
- Which laws establish civil rights protections around
E&IT access and how are those laws being applied and enforced?
- What changes in law or practice would be most effective
in fulfilling the goals of E&IT access equality for all Americans?
The methodology adopted for this research involved
analyses of all relevant statutes, regulations, and case law bearing
on the scope and enforcement of disability civil rights laws; interviews
with key federal officials involved in the process of making E&IT
accessible; review of federal documentation of accessibility policies
and practices; and analysis of nongovernmental reports and studies
of E&IT accessibility.
B. Roadmap to This Report
The remainder of this chapter sets out a framework
for understanding the issues surrounding E&IT access and why
they are important. Chapter II presents a historical review of the
development of civil rights laws and concepts dealing with information
and information technology access. Chapter III explains the major
current legal provisions bearing on this subject. Chapter IV analyzes
and documents the administration and implementation of these laws
by the responsible federal agencies and as interpreted by the courts.
Chapter V sets forth the findings of the report. It is divided into
two parts. The first section sets forth observations and conclusions
based on interviews and conversations with agency officials, technology
users, and advocates concerning how and why some federal agencies
have been more successful than others in implementing information
technology access rights. The remainder of the chapter sets forth
other major findings based on our documentary and empirical research.
Chapter VI offers detailed recommendations for implementing and
enhancing current laws and practices to improve the accessibility
of the nation's information infrastructure.
C. The Importance of Information Technology
IT is known by various names in its application to
the lives of people with disabilities. Such terms as "adaptive equipment,"
"assistive technology," and "electronic and information technology"
all have their place as subsets or extensions of what we commonly
think of as IT. Adaptive equipment, a general term with no specific
statutory definition, describes any sort of modification to technology,
including design changes or add-ons, that make it more accessible
to or usable by people with disabilities. AT, a statutory term deriving
from the Technology-Related Assistance for Individuals with Disabilities
Act of 1988, includes both AT devices and services. An AT device
is any item or system "that is used to increase, maintain, or improve
functional capabilities of individuals with disabilities."2
E&IT as defined in the implementing regulations for Section
508 of the Rehabilitation Act is specific to the communications
and information environment and refers to the broad range of hardware,
software, and other components making up this environment.3
In the currency of daily life, what is more important,
yet more taken for granted, than access to information? But for
many people with disabilities, the information access and exchange
that most of us take for granted is difficult or impossible, or
can be achieved only with the intervention of third parties or through
the use of AT. The reasons people with disabilities lack access
to information in our society are perhaps more significant and certainly
more within our control than the lack itself. The explanation increasingly
lies not in disability itself, but in the design of the technology
that mediates our access to and use of all types of information.
For Americans generally, the expectation of access
to information is taken for granted, almost to the point of being
considered a right. Who would question that in America we advertise
job openings so the broadest range of qualified people may have
the opportunity to compete for them? We attach such importance to
timely notice from government regarding its decisions about our
lives--denial of a disability claim, demand for additional taxes,
granting of a driver's license--that our rights to such information
are enshrined in law, even reaching the status of constitutional
due process. And we recognize that information from and about government
is essential to the functioning of our democracy and to the individual's
exercise of the responsibilities of citizenship. How outraged would
we be if the opportunity to compete for the promotion were not posted,
if the grant or denial of our driver's license were never made known,
or if the text of official pronouncements were not published?
No one would dispute that people with disabilities
have the same need for information everyone else has. Nevertheless,
for many of these citizens, the information gap (both a cause and
a consequence of various forms of economic and social disadvantage)
is not narrowing. Paradoxically, at the very time when many people
comfortably assume that technology is steadily bringing people with
disabilities more opportunities for access than they have ever known
before, this same technology (coupled with the attitudes and expectations
of those who use it) may in many cases be reinforcing patterns of
exclusion and isolation.
Recent discussion of the "digital divide" problem
has demonstrated the existence and consequences of major disparities
in our society between information "haves" and "have-nots." The
harm attributable to the information gap is severe, both for those
denied opportunity and participation as a result of it and for society
as a whole. While Americans with disabilities can all too often
be counted on the "have-not" side of the information and information
access equation, the reasons and remedies for this exclusion are
not so well or widely understood.
Leaving aside broader questions of poverty, education,
or health care, the problem is that much information the rest of
our society takes for granted is not provided or disseminated in
ways accessible or usable by people with sensory, physical, and
cognitive disabilities. Imagine trying to conduct your life in a
world where most key communications were made only in an unknown
foreign language. Imagine life in a world where a person may not
even know the information exists.
We live in what is frequently called "the information
society." In this successor era to the Industrial Age, information
is more and more the principal commodity of commerce, and technology,
ranging from the computer to the information kiosk, from the electronic
message board to DSL, is more and more the medium for transmission,
storage, and manipulation of that information. Thus access to information
technology is increasingly the arbiter of success and the source
of opportunity in education and employment. Under these circumstances,
it should not be surprising that access to information and to the
technology that creates and provides it would become a civil rights
issue for people with disabilities and for our society. As the role
of information access grows in the way we conduct our lives, in
the choices we make, and in the decisions others make about us,
the importance of information technology can only expand.
D. Nature of the Problem
Even as they create new opportunities for some, information
technology advances erect access barriers to others. Where such
barriers could be avoided, their needless occurrence is all the
more tragic and wasteful.
Among the kinds of technology that have irrevocably
changed life for all of us, modern information technology, the technology
of the computer era, has dramatically empowered many people. But
any assumption that all or most information technology is routinely
available to or usable by people with disabilities would be a grave
mistake. Incorporation of what we call accessibility into America's
information technology infrastructure is not and has not been automatic
or certain. When any new mainstream technology creates opportunities
for some but excludes others because of design features that do
not take users with disabilities into account, part of its impact
is to engender frustration, create divisions, and reduce the opportunity
for independence available to significant subgroups of our fellow
citizens. Conversely, employers who may want to reach employees
with disabilities by cell phone are unable to do so because the
cell phone has no amplification capabilities.
A few examples drawn from our everyday technology
and experience illustrate this point. The cellular telephone which
has brought so much convenience to so many has also created new
barriers to telecommunications access for people with hearing impairments
because most such phones have lacked hearing aid compatibility.
Banks that once employed tellers to serve their customers now rely
on automated teller machines (ATMs), telephone service lines, and
the Internet. Each of these information technologies poses severe
access barriers for people with various disabilities. People who
cannot see the information and prompts on the screen are effectively
barred from using ATMs. People who cannot enter long strings of
account or card numbers before voice response systems "time out"
are prevented from using all kinds of automated customer service
lines. And people who cannot use a mouse may be precluded from accessing
many online applications and opportunities in the commercial sector.
As isolating as these limitations are, their impact
is all the more frustrating because they are largely needless. If
design principles and technological capabilities did not exist for
making our E&IT accessible to persons with disabilities, regrets
might be in order. However, such techniques for the most part do
exist and can usually be implemented at little cost, with minimal
disruption to industry, commerce, and other technology users. Questions
thus arise about why such enhancements are not more widely utilized
and what can be done to bring about their use.
One part of the answer to these questions can be found
in law. The civil rights provisions discussed in this report are
among the methods chosen by society to help minimize the information
access gap between people with disabilities and those without disabilities.
In the end, though, while laws can legislate behavior, laws do not
touch people's hearts and minds so that they do what is right. This
report is intended to promote better understanding of what can be
done and why it is right and vitally important for all of us to
join in doing it.
E. Scope of the Problem
Today an estimated 54 million Americans have a disability,
a number due to grow rapidly as our population ages. As an outgrowth
of these demographics and the changes associated with advancing
age, the line between who is and who is not a person with a disability
will steadily erode.
Whether we have disabilities, do not have them, or
are on the cusp of having them, inaccessible technology affects
all of us. These effects can be grouped under three major headings:
demographics, economics, and justice.
1. Demographics
Fully understood, E&IT inaccessibility affects
far more people than is commonly thought. E&IT access is a major
issue not only for people with sensory disabilities of hearing or
vision, but also for persons with communications, cognitive, mobility,
and other disabilities. An elevator button panel too high to be
reached by a person using a wheelchair is an inaccessible information
appliance. A computer that requires unusual force or dexterity to
turn on is likewise inaccessible to people with limitations of strength
or reach. To the degree they restrict or prevent people with disabilities
(or people who are just getting weaker and stiffer with age) from
using E&IT, such features of the technological environment constitute
barriers to access and participation in all spheres of daily life.
The Census Bureau estimates that one in five people
have disabilities (www.census.gov/hhes/www/disable/sipp/disable97.html).
Despite these numbers, some may still ask why access is an issue
for society as a whole. As President Bush's New Freedom Initiative
points out, "Disability is not the experience of a minority of Americans.
Rather, it is an experience that will touch most Americans at some
point during their lives." Put another way, if we can just manage
to live long enough, all of us will eventually have a disability,
or we will have a functional limitation close enough to be worthy
of the name.
2. Economics
In the face of the highest levels of employment since
World War II, unemployment rates among Americans with disabilities
remained stubbornly high throughout the late 1990s. The Census Bureau
has recently estimated this rate among adults age 21 to 64 at two
thirds (www.census.gov/hhes/www/disable/sipp/disable97.html).
At the same time, survey research data indicates a
strong desire for employment among people with disabilities and
a 44 percent unemployment rate among those who describe themselves
as able and available to work.4
The emotional and personal toll these numbers suggest
cannot be measured, but the economic consequences are all too plain.
At a time when national policy is focused on the creation of a skilled
and highly trained workforce, capable of competing in the world
economy, when skilled workers in many specialties remain in short
supply, and when computerization has both reduced the physical demands
associated with many jobs and placed a premium on computer and related
skills, the persistence of high levels of unemployment among Americans
with disabilities is economically insupportable and unacceptable
in light of disability policy and civil rights.
No one can say exactly how many of those now consigned
to unproductivity and unemployment would be enabled to enter and
remain in the economic mainstream if information technology were
generally accessible and usable for all. Suffice it to say, in an
era when computers and other forms of E&IT are used in a growing
proportion of businesses and fields, even in traditional manual-labor
occupations such as manufacturing or agriculture, there is strong
reason to believe that investment in accessibility will be rewarded
with increased opportunity and higher levels of employment among
people with disabilities.
A number of proposals and actions by the Bush Administration
suggest the administration's recognition of the importance and potential
of technology-oriented jobs. The New Freedom Initiative, for example,
proposes the creation of tax and other incentives for the provision
of computers to persons with disabilities for work at home. Other
administration actions supportive of a highly skilled workforce
in our nation include the short-term delay of the expiration date
of the President's Information Technology Advisory Committee, and
the creation of a number of high-tech task forces and projects.5
The presidential proposals also include significant new investment
in AT predicated on similar logic.
The issue of accessibility is vital to address in
their presidential proposals formulation and implementation. Undoubtedly,
the incorporation of accessibility requirements into the design
of these programs will result in some added cost, in both money
and time, but as a function of the overall costs of these initiatives,
and in light of their intended benefits, such costs may prove far
smaller than the costs of inattention.
Such proposals to direct resources toward enhanced
E&IT access are subject to economic and cost/benefit analysis.
A variety of disability policies and even disability rights laws
have been analyzed in this way. For example, economic impact studies
of the two most important E&IT access statutes (Section 508
of the Rehabilitation Act and Section 255 of the Communications
Act) have been conducted by the U.S. Architectural and Transportation
Barriers Compliance Board (Access Board) as part of the rulemaking
process for their implementation. The most recent of these studies,
conducted in 2000 in connection with Section 508, found that this
new law is a "significant" economic regulation (meaning that it
is expected to cost more than $100 million).6
Nonetheless, the Board's finding (subsequently adopted by the executive
branch in the Federal Acquisition Regulation implementing the Section
508 standards) was that Section 508 would not unduly burden the
economy.
Efforts to extend the analysis of economic impact
to future or broader accessibility initiatives are necessarily conjectural.
But certain hypotheses do seem warranted. We will discuss the economic
implications of a national E&IT access policy in further detail
in Chapter VI. For the moment, we must remember that the costs of
doing nothing may be greater than the costs of any reasonably foreseeable
measures. For as information and E&IT come more and more to
define our lives, the implications of lack of access to such technology
can only grow commensurately greater with each passing day.
3. Justice
Any civil rights concept of access to E&IT forms
part of the requirements of three major Federal laws: the ADA, the
Telecommunications Act of 1996, and the Rehabilitation Act of 1973,
as amended. As mentioned previously, this report looks specifically
at federal enforcement of key laws (i.e., the ADA, Section 255 of
the Telecommunications Act of 1996, and Section 508 of the Rehabilitation
Act, as amended) and how such enforcement relates to E&IT.
Despite the lack of a traditional notion of E&IT
as a civil rights concept, the experience and consequences of inequity
are real, whether they are intentional or are simply the unanticipated
byproducts of unrelated decisions.
Beyond a certain point, the line between accidental
and deliberate exclusion may be hard to draw. But where means exist
to mitigate palpable injustice and are not taken, the suspicion
at some point becomes unavoidable that this line has been crossed.
If we fail to take the measures technology puts in our power to
equalize the information-access playing field, our society will
surely be answerable for more than ignorance or indifference.
F. Electronic and Information Technology As an Element
of Diversity
Considering the estimated 54 million Americans with
disabilities (along with persons who do not qualify as having disabilities
under law or whose self-images preclude any identification with
disability), the constituency and the need for accessible E&IT
may be far greater than has traditionally been supposed. If the
varying communications styles of people from diverse cultures and
the use in this country of many languages are taken into account,
the constituency for accessible information becomes still larger.
Government and business have already done a great
deal to make information available and communication possible in
multiple languages and through a variety of media and formats. Partly,
this proliferation of languages and dissemination strategies reflects
a growing appreciation of the diverse cultural makeup of our society.
Partly, it derives from commercial motives and economic considerations.
But to a large extent, too, it derives from our sense of equity
and fairness, and increasingly from the enshrinement of those values
in law.
How is it, then, that against this backdrop, access
to key public, business, and personal information for people with
disabilities remains a serious problem and a controversial issue?
How is it that the aspiration of people with disabilities for timely,
accurate, and contextually sensitive access to information comes
as a surprise to some, a fringe special-interest demand to others,
and a perceived threat to not a few?
Today, technology plays a central role in almost all
information creation and dissemination. From the blockbuster film
playing in thousands of movie theaters to the quick note sent by
e-mail to a friend, from the order telephoned into the nearby pizza
store to the new software instructing your computer how to perform
various operations, technology mediates the creation and dissemination
of all our public and much of our personal and private information.
The problem is that most of these technologies were developed and
deployed without regard to users with disabilities. The question
of how or whether to make them accessible has almost always been
an afterthought, requiring a convergence of demand, technology,
and willingness in order for that goal to be met.
If so many millions of people with disabilities make
up the constituency for accessibility, why aren't mainstream business
or personal-use communications and E&IT designed accessibly?
Why does accessibility remain a point of departure rather than simply
another point on the continuum of better, more user-friendly design?
After all, don't the creators and purveyors of information already
seek (for economic and other reasons) to make their data as widely
available and their equipment as broadly usable as possible? Isn't
accessibility just an extension of the principles to which many
designers, developers, and marketers already claim to subscribe?
These questions have no single or simple answers.
A cluster of technological, economic, attitudinal, and legal factors
have combined to play a role. These variables will be discussed
throughout this report through the prism of the civil rights laws
that have been adopted to enhance information access and create
information equality. Accordingly we turn next to a review of the
development of information and information technology access laws
over the past generation.
CHAPTER
II A Brief History of Information Technology
Accessibility
The notion that equal access to electronic and information
technology (E&IT) is a civil right of people with disabilities
has emerged over the course of a generation. In many ways, the emergence
and development of the right to E&IT access parallels the development
of the right to physical access. In other ways, the history and
implementation of the two concepts have taken very different pathways.
Because the concept of E&IT access may be less well known and
less generally understood than that of physical access to buildings
and facilities, this chapter, wherever possible, will draw on analogies
to physical accessibility and architectural barrier removal, and
will describe some of the ways in which information-technology access
advocacy has been influenced by advocacy for access to the built
environment.
A. The First Accessibility Law
In 1968, Congress adopted the Architectural Barriers
Act,7 which mandated the removal
and avoidance of a variety of physical barriers to access in the
design and construction of federally funded buildings and facilities.
This watershed statute brought about new opportunities and expanded
options for many people, but it also epitomized and inaugurated
a new era of social policy regarding disability. The Act put into
law the recognition that barriers in the built environment, as much
as or even more than any inherent consequences of a physical impairment,
account to a large degree for how disabled a person really is in
society. If these barriers could be eliminated, the level of disability
could be substantially reduced.
In this proactive statute, Congress for the first
time "connected the dots" between the decisions made in the design
and construction phases of a building and the opportunity for individuals,
perhaps many years later, to access the goods or services available
in that building. Before a new building ever went up, when it would
be cheaper and easier to make accommodations, the law sought to
vindicate the access rights of all who might one day seek to enter
it.
The Architectural Barriers Act was a major point-of-departure
in another way as well. Although its scope and requirements were
modest, the Act represented the first significant instance (outside
of wartime) when private sector entities were required to take or
forgo certain actions solely because of their impact on the rights
and lives of people with disabilities. Before this, no federal mandate
other than paying taxes compelled the private sector to concern
itself with these citizens, so the notion that the government could
require them to modify any of their business practices or decisions
on behalf of this population was a novel one.
From its modest beginnings in application only to
federally funded construction, the notion that the government can
tell people anything about how to build their buildings has been
extended by subsequent statutes to the point where today the Americans
with Disabilities Act (ADA) requires barrier-removal and accessible
design requirements on all state and local governments and on all
private entities and commercial facilities that meet the law's definition
of "public accommodations."
By creating and broadening the use of accessibility
requirements for the built environment, society paved the way for
creating and expanding parallel requirements to E&IT access
in the information environment of today. While the scope of accessibility
rights in the information sector remains considerably narrower than
its counterpart in the physical realm, this difference (as we shall
discuss later in this chapter) is not so much the result of a lesser
philosophical commitment or of lesser moral justification. Rather,
it is a consequence of the more complex interdependence between
technology and law in the information arena and the fact that rapid
changes in E&IT dramatically alter the economics of accessibility.
B. The First Disability Civil Rights Law
During the 1960s, our nation was transformed as Congress
enacted landmark civil rights protections for racial and ethnic
minorities and women. In 1973, similar civil rights protections
were extended to Americans with disabilities.8
The Rehabilitation Act of 1973 included the historic
Section 504 which barred discrimination on the basis of disability
in programs operating with federal financial assistance, and which
required provision of reasonable accommodations to avoid such discrimination.9
Section 504 not only was the first statute applying
civil rights protections to people with disabilities, it also furnished
the model for major subsequent enactments, including the ADA. From
the outset, coverage under Section 504 included anti-discrimination
and reasonable accommodation requirements in connection with access
to information.10 The terms of
reference for these communications and information access rights
were of course very different in 1973 from those of today. The emphasis
then was on reasonable accommodations such as readers for people
who are blind, or interpreters for people who were deaf. Unlike
the case with physical access, the notion that civil rights could
or should include modification of mainstream communications technology
was essentially absent from the thinking of that day.
This is not to say that E&IT had no place under
the Rehabilitation Act. The law addressed communications and information
primarily in the context of the vocational rehabilitation services
that could be provided to clients with sensory disabilities. Sensory
aids and communications equipment were included among these services.
When we consider the state of technology at the time
the Rehabilitation Act was passed, the approach the law took should
come as no surprise. Various devices ranging from braille writers
to hearing aids existed for facilitating written or oral communication
by persons who were blind or deaf, but apart from teletypewriters
(TTYs or text telephones), none of these devices were interactive
in the sense that they could or needed to be interconnected with
mainstream communications or telephone systems. Because no occasion
existed for connecting to the communications grid, the notion of
accessibility or compatibility had no meaning.
C. The Evolution of Access Rights
The scope of coverage of civil rights laws has grown
steadily since 1973. Today private and public entities are subject
to the requirements of the law, whether or not they receive federal
funds. Likewise, our definition of discrimination has expanded to
include unequal treatment or denial of access resulting from the
inaccessibility of mainstream E&IT. In addition, design requirements
have been successively broadened to include manufacturers of televisions,
manufacturers and sellers of telecommunications equipment and services,
and soon (by virtue of the recent amendments to Section 508 of the
Rehabilitation Act) all manufacturers or vendors who wish to sell
"electronic and information technology" to the Federal Government.
How is it that we have come in a generation from a
fairly meager right to information to the E&IT access requirements
and rights of the early 21st century? Before reviewing some of the
legal milestones, three important nonlegal developments must be
noted: cross-disability elaboration of the meaning of access; emergence
of accessible design; and developments in communications technology.
1. The Meaning of Access
Beginning as the right to enter a building, the concept
of access has evolved to incorporate qualitative measures. Today
we talk not just of access but of "meaningful" access. As embodied
in the ADA, this means the right to fully participate in enjoyment
of whatever opportunities, benefits, programs, or services an organization
covered by the law offers.
The right of meaningful access necessarily and prominently
includes the right to content, which in turn presupposes access
to relevant information. Thus, it would be unthinkable today to
argue that an individual with a hearing impairment has meaningful
access to a city council meeting if no interpreter services or assistive
listening systems are provided. Similarly, no one would seriously
contend that an individual who is blind has equal access to a business
training conference unless the handouts are made available in an
accessible nonprint format.
The evolution in our concept of access cannot be understood
without reference to the steady shift in society toward technology-mediated
methods for conveying and receiving information. The transactions
that once took place over the phone between customers and clerks
are now highly automated. Airlines encourage people to buy tickets
via the Web by providing discounts. Banks are phasing out tellers
and charging fees for teller service in order to direct customers
toward automated teller machines (ATMs).
As with any group of citizens, people with disabilities
will naturally differ in their preferences for human- or technology-mediated
interactions. Increasingly, though, they have little choice; you
cannot ask a ticket agent for the time of the next train if the
ticket agent has been replaced by a machine. Whether you can ask
the machine depends on its accessibility.
2. The Principle of Accessible Design
Our ideas about the nature and meaning of access could
not have developed without simultaneous advances in the design philosophy
of information and other technologies. Broadly speaking, the concept
of accessible design (or universal design, or inclusive design as
this concept is sometimes called) proceeds from the assumption that
by building our environment so that alternative means for conveying
and receiving information exist, E&IT can be made more usable
to the broadest range of people including people with disabilities
and people with differing communications preferences or styles.
As it relates to civil rights, technology design that takes into
account the needs of as many potential users as possible also reduces
the number of occasions requiring individual accommodations and
fundamentally alters the economics of accessibility.
Our law has increasingly made use of these principles
as developments in technology have made doing so feasible. The philosophy
of universal design received perhaps its purest legal expression
in The Television Decoder Circuitry Act of 1990.11
The Decoder Act may be regarded as our nation's first universal
design law, since it applied to all televisions with 13-inch or
larger screens. The Act mandated inclusion in all such TVs of closed-caption
decoder chips. Technology had made possible a law that freed people
who used captions from purchasing decoders costing one hundred dollars
or more for attachment to their televisions.
Instead technology and law had in combination made
it possible to take steps at the design and manufacturing stages
that spread the cost of decoders across the entire base of television
purchasers at a negligible per set added cost. Moreover, because
the requirement applied to all TVs of the requisite size, and because
the law came into effect only after a nearly three-year gearing-up
period, no competitive distortion or imbalance was introduced into
the commercial marketplace.
3. Developments in Communication Technology
Neither the Decoder Act nor a number of other statutes
of the late 1980s that imposed specific technology requirements
on the manufacturers of telephones would have been possible if the
technology of communications had not evolved as rapidly or in the
ways it did. Accordingly, a key question for information access
advocacy has long been that of how the course of mainstream technology
development could be influenced to place more emphasis on accessibly
or universally designed products. Several approaches have been tried
to influence the design philosophy and even the research and development
(R&D) priorities of the telecommunications, computing, and other
E&IT industries of our nation. But none of these efforts would
have been possible without broad changes in the information environment
which transformed isolated devices into coordinated, interoperable
"networked" information systems.
The advent of the personal or home computer marks
the point at which this trend gained widespread recognition. Gone
were the dedicated, stand-alone devices of even the recent past
such as electric typewriters/word processors, and in their place
were computers cabled to external drives hooked to printers and
in due course, connected to the telephone system and to a variety
of office equipment that the computer user might never even go near.
Again, changes in the notion of information accessibility
followed. In the blindness community for example, research and development
efforts emphasized the creation of software and peripherals to facilitate
synthetic speech, braille, or large print output from standard computers.
As access to information became increasingly a function of the ability
of our devices to work interconnectedly, the premium on access technology
that would work in such an environment naturally grew apace. But
what kind of laws would reflect the new reality of communications?
D. A New Barrier
Part of the problem created by the interconnected
communications environment was that stand-alone or assistive technology
(AT) solutions could no longer suffice. The complexity of the new
information systems required that manufacturers and developers of
mainstream commercial off-the-shelf hardware and software implement
design features that would enable specialized equipment to work.
In the telecommunications sector, for example, the term "specialized
customer premises equipment" was used among others to distinguish
between the off-the-shelf equipment that most people used and the
AT peripherals (such as text telephones or TTYs) that people with
disabilities needed.
This need for peripheral or add-on devices and software
that could be incorporated into the interconnected system in turn
gave rise to the notion of "compatibility" as a fallback requirement
when accessibility of the mainstream devices and systems was not
possible. The hope in the disability community was that if mainstream
developers could not make their equipment and services fully accessible,
they would at least make them "compatible" with AT.
Though mainstream developers certainly seemed in a
position to pursue accessibility and compatibility, no law clearly
obliged them to. Indeed, as sometimes happens in technology, some
of the most highly touted advances in computer software and operating
systems have actually set back the cause of computer access for
people who were blind.
The move from text-oriented DOS-based to graphical
Windows-based computer operating systems resulted in precipitous
losses in access (and, according to reports at the time, losses
in jobs) for persons using speech or braille for their computer
output. Largely unaided by mainstream developers, it took the AT
industry several years to develop viable Windows-access strategies,
and some say the ground lost has never been fully regained.
E. The Convergence of Technology and Law
A law passed in 1986 pointed the way to a new method
of encouraging industry to devote additional resources to accessibility
and compatibility.
1. The Leverage Model
In 1986 Congress passed the first of the three versions
of Section 508 that have existed. The law was amended in 1992 and
again in 1998 to give us the statute we now have.12
As enacted in 1986, Section 508 required government
agencies, in their purchases of electronic office equipment for
their own use, to follow principles of accessibility in their procurement
of such equipment. The law included no enforcement provisions but
was backed up by technical assistance through the General Services
Administration's Clearinghouse on Computer Accommodations. Section
508 didn't automatically make a single operating system accessible
to people who could not see the screen, or a single telephone compatible
with TTYs. But what 508 could do was give those marketing to the
federal sector new incentives to make their products accessible
and to work toward universal design. The theory was simple: If the
E&IT industry's largest customer wanted products of a particular
kind, industry would allocate the necessary R&D resources to
satisfy that customer's needs.
Devoid as it was of enforcement mechanisms, the original
version of Section 508 was doomed to fail. Despite this fundamental
flaw in the original statute, the model it pioneered has remained
in use and become more sophisticated. Today the grandchild of that
original Section 508 creates what should prove to be powerful incentives
to accessible or universal design, since it does include mandates
with which federal agencies must comply, technical assistance to
aid them in compliance, and clear standards of what constitutes
compliance with respect to all major categories of E&IT.
2. The Technical Assistance Model
Technical assistance has played a major role in the
attempts over the past 15 years to enhance the accessibility of
the information environment. In both voluntary and mandatory settings,
awareness has grown that success depends on the availability of
technical assistance and on effective coordination and sharing of
the scarce expertise in the field.
The clearest expression of the technical assistance
model and philosophy came in the Technology-Related Assistance for
Individuals with Disabilities Act of 1988 (Tech Act). Amended and
revised once since then, and now known as the Assistive Technology
Act of 1998, this legislation provided resources to state-level
assistive technology projects to engage in a variety of activities
to further the cause of AT use, including various forms of technical
assistance to state and local government and to the private sector.
Although the emphasis has shifted, one of the major
goals of the Tech Act was to bring about institutionalization of
pro-technology access changes in the operations of various public
and private institutions. The method chosen for this was distinctly
noncoercive. Later, civil rights statutes, such as the three we
will study in this report, have continued to place heavy emphasis
on technical assistance, even though all three operate under what
we call an enforcement model. The important role technical assistance
continues to play under voluntary compliance and enforced-compliance
models alike serves to underscore the complexity and difficulty
of fully implementing accessibility design and practice in the E&IT
industry.
3. The Enforcement Model
No disability civil rights law is absolute in its
requirements. Where excessive cost or other factors make a proposed
action or remedy an "undue burden" or render it "not readily achievable,"
the laws will not insist that it be done. In such cases alternatives
need to be found, but each of these is subject to the same tests.
Accordingly, any suggestion that enforcement is now a primary tool
on which we rely for accessibility must be qualified from the outset.
Within this framework, the ADA, Section 255, and Section
508--the three principal civil rights statutes enlisted in the struggle
for information-technology access during the 1990s--all create definite
and measurable expectations of what the private sector business
must do in its multiple roles of employers, public-accommodations
providers, and product developers or suppliers. Coming from government,
from the disability community, and from other segments of society,
these expectations combine to create what may fairly be termed a
climate of enforcement. Whether this model in all its various formulations
will work, only time, together with further developments in technology,
will tell.
Each of the models discussed in this chapter finds
echoes in the three seminal civil rights statutes introduced and
examined in the next chapter. But whatever model or combination
of models we rely on, the question of whether E&IT access should
be regarded as a civil right ultimately depends on more than law.
If at the dawn of the 21st century we say access to E&IT is
a civil right, we do so not merely because of the expectations surrounding
such access, nor because of the undergirding of laws that weigh
in on the subject. Rather, we say it because E&IT is the overwhelming
means by which people receive, process, and disseminate information
today. If we lived in that era when conversation, the pen, and the
pencil were the main modalities for conveying and receiving information,
we would say that access to those technologies and their products
constituted the measure of basic information equality. Today, when
sophisticated E&IT is the primary medium of exchange, it is
equally true that access to its modalities is for all practical
purposes the measure of access to information itself. To say that
people have no right of access to these technologies is to say nothing
less than that they have no right to earn a living, get an education,
withdraw $20 from their own bank accounts, buy a public transit
ticket, or communicate with their families across the country.
Chapter
III The Legal Framework of Information
Technology Access Rights
In a democracy, the right of the citizenry to information
is a subject of constant concern and debate. When people speak of
the right to information, they are generally concerned with such
matters as governmental secrecy, personal privacy, or institutional
accountability. The information technology (IT) access issues discussed
in this report are of a different order. Our concern is with accessibility
and usability of information that in law and custom is routinely
available to and expected by all.
The laws that concern us here are those providing
access to electronic and information technology (E&IT) to persons
with disabilities. These laws take as their fundamental assumption
that where technology or other means exist for making data available
on equal terms to people with and without disabilities, these means
should be utilized whenever possible. Accordingly, in analyzing
E&IT access rights, our focus is on the three federal statutes
that have the greatest impact on the subject: the Americans with
Disabilities Act (ADA)13; Section
255 of the Federal Communications Act of 199614;
and Section 508 of the Rehabilitation Act as amended in 1998.15
Before we examine these statutes, a word about terminology:
Different statutes use different terms to describe the kinds of
technology with which they and we are concerned. In this study,
unless the context indicates otherwise, we will use the term "E&IT"
to describe such technology. This term, used in Section 508, derives
from the Clinger Cohen Act of 1996, the major statute dealing with
Federal Government information resources and information management
practices. Although the term is relatively new and perhaps unfamiliar
to some, we believe that E&IT will become the predominant term
used in discussions of information technology access rights.
As discussed further in Section C below, the range
of devices falling within the definition of E&IT is inclusive,
encompassing all equipment, software, and Web sites used for creation,
storage, transmission, or manipulation of information and data.
Our major focus here will be on computers (including software and
peripherals), telecommunications equipment, automated teller machines
(ATMs) and information kiosks (including Web-based kiosks), and
other Internet Web sites and resources.
A. The Americans with Disabilities Act of 1990 (ADA)
The ADA bans discrimination on the basis of disability
in employment (Title I); in provision of public services by state
and local government (Title II); and in provision of or access to
goods, services, and facilities of public accommodations and commercial
facilities (Title III). In addition, Title IV requires provision
of telephone relay services. Our discussion focuses on Titles I,
II, and III. Each of the ADA's three major civil rights titles has
different implications for E&IT access rights.
1. Employment
Title I of the ADA is broadly concerned with access
and equality of opportunity in the workplace. It is applicable to
all issues that might give rise to discrimination, unequal opportunity,
or disparity in the terms, conditions, or benefits of employment.
Situations involving arguable discrimination based
on inaccessibility of E&IT are readily foreseeable. Imagine,
for example, the case of an otherwise "qualified individual with
a disability" denied employment on the ground that her disability
prevents her from using the computers required for job performance.
From the standpoint of Title I, denial of employment on this basis
is no different from denial on any other disability-related grounds.
Here, as in any other alleged employment discrimination context,
if investigation determined that access to the computer was difficult
or impossible, consideration of reasonable accommodations would
be triggered.
Title I requires employers to make reasonable accommodations
when doing so would not constitute an "undue hardship" or fundamentally
alter the nature of the employer's business.16
Thus, if an appropriate technological solution exists, the employer
would ordinarily be required to implement this solution.
But application of Title I in the E&IT context
presents two distinct legal problems. First, although Title I contemplates
an interactive process whereby the employer and employee jointly
arrive at an appropriate individualized accommodations solution,
and although the law accords preference to the accommodation preferred
by the worker, case law makes clear that in the end, the employer
makes the final decision. Typical are two cases, one involving a
modified computer keyboard17 and
the other involving a request for a teletypewriter (text telephone),18
in which the employers were allowed to restructure the jobs to eliminate
the E&IT-oriented functions rather than provide the equipment.
Only in a case where E&IT accessibility represented the sole
reasonable accommodation possible would the law require an employer
to make it accessible.
The second problem associated with application of
Title I to E&IT is the high potential for disagreement over
the adequacy, cost, and feasibility of E&IT accessibility modifications.
Even experienced professionals within corporate IT departments are
likely to have little or no knowledge of the costs or possibilities
of E&IT accessibility. While employers do have an obligation
to research possible solutions in reasonable accommodations situations,
the ability on the part of employees to identify both appropriate
technology and sources of information is likely as a practical matter
to prove crucial to the success of many accessibility-oriented accommodation
requests.
The Equal Employment Opportunity Commission (the agency
charged with primary responsibility for implementing Title I) favors
mediation as a means for resolving employment discrimination complaints
without litigation. But mediation will not resolve factual disputes
surrounding the feasibility or cost of E&IT accessibility solutions.
Mediators may be able to persuade the parties to agree to seek the
assistance of independent outside experts, but even this requires
that someone--the mediator, the employer or the employee--know or
suspect that qualified technical assistance and expertise are available.
2. Public Services
With Title II, the requirements of the law are likewise
broad. State and local government agencies are prohibited from discriminating
on the basis of disability in providing services or conducting activities.
These entities are obliged to implement reasonable modifications
in "policies, practices, and procedures" where necessary to prevent
discrimination or to afford equal access and participation. From
the standpoint of Title II, once again it does not matter that the
arguable discrimination results from the use or inaccessibility
of E&IT.
One obligation of governmental entities under Title
II is ensuring "effective communication" with members of the public
seeking information or services or to participate in activities.
Means for achieving effective communication include providing auxiliary
aids and services, among which technology-oriented solutions are
included.
"Auxiliary aids and services includes--
(1) Qualified interpreters, notetakers, transcription
services, written materials, telephone handset amplifiers, assistive
listening devices, assistive listening systems, telephones compatible
with hearing aids, closed-caption decoders, open and closed captioning,
telecommunications devices for deaf persons, videotext displays,
or other effective methods of making aurally delivered materials
available to individuals with hearing impairments;
(2) Qualified readers, taped texts, audio recordings,
brailled materials, large print materials, or other effective methods
of making visually delivered materials available to individuals
with visual impairments."19
"Acquisition or modification of equipment and devices"
is also mentioned among the examples of auxiliary aids and services
listed in the regulations, but in a nonspecific and general way.
Interestingly, though certainly appropriate in many cases, use of
electronic media, including computers for people who are blind,
was not included in the list of examples, despite indications that
commenters on the proposed regulations urged the Department of Justice
to include them on the list.
Let us suppose that a municipal government decided
to use information kiosks to provide forms for personal use by citizens
(such as in applying for various permits) or for the dissemination
of brochures and information of general interest to the public.
If the information transaction machines (ITMs) were inaccessible
to people with disabilities, the normal processes of the law would
once again need to unfold. But in the case of Title II the question
of whether the ITMs could be made accessible without imposing an
"undue burden" on the local government might have to be deferred
until a preliminary jurisdictional question was answered.
Because Title II covers "programs" and "activities"
of local and state government, some public officials have expressed
the opinion that ITMs, public terminals, and other public access
computers do not constitute programs or activities within the meaning
of the law or within any widely recognized definition of what governments
do. On this basis, a municipality might interpose a jurisdictional
defense, claiming that Title II does not apply. No court is known
to have endorsed this position, but the likelihood of such arguments
being raised should be anticipated in any Title II public E&IT
accessibility setting.
Returning to the normal ADA process, the first question
would concern the potential cost and difficulty of making the ITMs
accessible. Here the law presents a problem. In determining whether
a proposed modification is reasonable, the law looks at the actual
costs and difficulty such modification would entail. Modification
of the ITMs after they have been designed or after deployment has
begun involves retrofitting which is almost always more expensive
and more difficult than accessible design from the outset. The law
does not provide clear guidance on how the unnecessary but nevertheless
very real costs of retrofitting are to be handled. While courts
have not been sympathetic to undue burden claims arising from costs
that respondents should have foreseen and could readily have avoided,
and although courts have not treated such costs as barrier removal
costs (which are subject to the more lenient "readily achievable"
test rather than to the undue burden standard), the political consequences
of heightened costs may all too easily overwhelm the legal solution.
Title II also poses another problem in application
to public sector E&IT. The municipality may have the option
to decline making the ITM accessible, even without pleading undue
burden, if it can prove that under the facts and circumstances of
the case, some other strategy for providing the information meets
the requirements for "program accessibility." If the local government
had made alternative arrangements by way of auxiliary aids or services
for people to obtain the forms or information (say from an information
desk at a nearby accessible public building), then the legal question
would become whether program accessibility had been achieved. Is
the communication "effective"? This is a question of fact, its answer
depending on such factors as convenience, completeness, timeliness,
and other variables.
Few cases involving inaccessibility of E&IT under
Title II have arisen. In one interesting case, accessibility advocates
sought injunctive relief to stop the state of Washington from going
ahead with installation of an inaccessible kiosk system.20
The case never went to trial, and the state abandoned its plans
to implement the system, but persons familiar with the case consider
it likely that the state's decision to pull back the system resulted
from the threatened lawsuit.
Case law at the administrative level has pointed the
way toward the solution of one major problem surrounding the application
of Title II to E&IT. The problem, which actually occurs under
all three civil rights titles of the ADA, relates to the fact that
so many of the obligations of covered entities are triggered by
requests from individuals with disabilities. In the case of E&IT
access, such requests may often come too late, since by the time
an individual is confronted by an inaccessibility problem, the underlying
E&IT infrastructure of the school or company or government agency
may not allow for implementing the necessary changes. For this reason,
the ADA needs some mechanism for moving the discussion from individual
requests for accommodations, modifications, or auxiliary aids and
services to accessibility measures proactively implemented by covered
entities.
Title II provides such a mechanism in the form of
its provisions bearing on ADA self-evaluation studies that covered
entities are asked to conduct.21
A half dozen cases involving information access complaints against
public postsecondary institutions in California during 1992-1999
deal with the role of self-evaluation and advanced planning in connection
with auxiliary aides and services under Title II.
In these cases (all but one arising under the dual
jurisdiction of Title II and Section 504 of the Rehabilitation Act),
the U.S. Department of Education's Region IX Office of Civil Rights
(OCR) entered into voluntary settlements with several individual
community colleges, with the entire state community college system,
with branches of the California State University (CSU) system, and
with one private university. These complaints all involved claims
of information or IT inaccessibility by students with visual impairments,
and several of the cases, as well as a case in the Department's
Region II OCR in 1995, resulted in agreements by the institutions
to make computer labs accessible.22
Of particular note in connection with the requirements
of the law for planning ahead for accessibility are statements contained
in the Department's April 20, 1999, CSU Long Beach settlement letter:
A public entity has an affirmative duty to establish a comprehensive
policy in compliance with Title II in advance of any request for
auxiliary aids or services" (see Tyler v. City of Manhattan,
857 F. Supp. 800 (D. Kan. 1994)).23
3. Public Accommodations
Title III of the ADA requires private entities and
commercial facilities that meet the definition of "public accommodations"
to make their goods, services, and facilities accessible to individuals
with disabilities. Title III contains many of the same requirements
and definitions (such as auxiliary aids and services and effective
communications) as Title II.24
But whereas providers of public services are expected to comply
with Title II in all phases of their activity that involve the public,
including those activities and services coming under the heading
of e-government, private entities and businesses are generally subject
to the law only in relation to the "places of public accommodation"
they maintain for the public and the activities and services conducted
at those locations. Thus Title III adds the notion of "place" to
the civil rights equation.
What happens if the primary or sole "place" where
a public accommodation does business with its customers or clients
is through information kiosks, over the telephone, or via the Internet?
No one would dispute that a restaurant must be accessible to customers
with disabilities who wish to eat there (including provision of
auxiliary services such as making menu information accessible),
but many believe this restaurant is free to refuse to serve these
same customers when they phone, fax, or email their orders. The
uncertainties surrounding applicability of the law to these communications
modalities and the questions surrounding whether transactions are
covered if they do not occur at a particular "place" of public accommodations
(such as a store, a doctor's office, or a movie theater) leave open
the possibility that just such anomalies may occur.
Because all the examples of covered public accommodations
enumerated in Title III involve goods or services provided in-person
at a particular facility or location, this notion of the limited
nature of Title III's coverage does have some apparent support in
the law.25 Some courts have held
that the jurisdiction of Title III hinges on the existence of a
physical nexus between the individual with a disability and the
covered entity.26 Other courts
have looked more to the nature of the activity in holding that where
the content of a service would be covered by the law if transacted
face-to-face, it is also covered if conducted remotely, by mail
or phone.27
In a number of ways the Department of Justice (DOJ),
which is responsible for enforcement of Title III, has supported
the notion of its applicability to transactions and relationships
not occurring in-person or at a specific location. DOJ has done
this by obtaining settlements and consent decrees in several cases
involving access by telephone to goods and services, such as complaints
resulting in the provision by brokerage companies of customer information
in nonprint accessible formats.28
But it is in connection with e-commerce and the Internet that the
question of Title III's reach takes on its greatest significance.
DOJ has interpreted the law as covering transactions
occurring on the Internet. It did this in a formal response to an
inquiry on the subject from Senator Tom Harkin of Iowa,29
and it has done so by filing an amicus curiae (friend of the court)
brief in a U.S. Court of Appeals Fifth Circuit case squarely raising
the question (Hooks v. OKBridge).30
In this case an online bridge club revoked Hooks's
membership because of inappropriate postings on his part. Hooks
claimed that his mental illness was the cause of his behavior, and
therefore that his exclusion from the online bridge club was discriminatory.
OKBridge countered by claiming that the Internet was not covered
by the ADA, since online bridge is not conducted at a "place" of
public accommodations.
The trial court ruled in favor of OKBridge, and Hooks
appealed. In its brief (www.usdoj.gov/crt/briefs/hooks.htm)
DOJ argued that the nature of the activities, rather than the place
where the activities were conducted, constituted the proper test
of whether the activities were a public accommodation.
Although the Court of Appeals upheld the lower court
judgment in favor of the bridge club, it did so without reaching
the Internet coverage question. Instead, the Fifth Circuit based
its decision on the finding that since the defendant had not known
of Hooks's disability, it could not be found guilty of discriminating
against him.31
With the applicability of Title III to the Internet
thus remaining in limbo, it becomes all the more important that
DOJ take measures to establish its interpretation of the law through
the rulemaking process and otherwise. Although its letter to Senator
Harkin was written in 1996, the Department has yet to follow up
on this interpretation by adding any specific reference to the Internet
or to e-commerce to its Title III regulations and by prominently
incorporating E&IT access into its technical assistance activities,
or by making any other sub-regulatory measures.
In fairness to DOJ, adding significant guidance about
the Internet would have been difficult so long as no clear criteria
existed for defining the meaning or assessing the achievement of
Web site accessibility. But with the publication on December 21,
2000, by the U.S. Architectural and Transportation Barriers Compliance
Board (Access Board) of its Final Rule implementing Section 508
of the Rehabilitation Act, such concerns need no longer exist.32
Progress toward accessible E&IT under Title III
has been greater in the area of bank ATMs than in any other major
category of E&IT. As a result of negotiations between individual
and organizational litigants and major banks in California, Illinois,
and Massachusetts, national settlement agreements have been reached
for deployment over the next two to three years of accessible ATM
machines in hundreds of locations around the country.33
Although utilizing differing designs and technologies adapted to
functions and features of varying machine models, these systems
all have the capability for users who are blind to obtain audio
output of screen information and to verify user input. These agreements
are significant because the disability community and a group of
major banks have been able to agree on understandable and workable
definitions of accessibility and usability. The ADA Accessibility
Guidelines for Buildings and Facilities (ADAAG) section 4.34 clarifies
that ATMs are to be accessible and usable by all persons with disabilities,
including those who are blind, but the Access Board and DOJ have
yet to finalize a regulatory standard for what that means. In the
absence of such guidance or leadership, concerned private parties
developed workable definitions for themselves. However, their ability
to do so over nearly five years of intense negotiations is hardly
an argument for governmental abdication of responsibility. The process
would undoubtedly have been expedited if the needed guidelines had
been in place.
B. Section 255
As part of the most sweeping revision of our nation's
communications policy since enactment of the Federal Communications
Act of 1934, Section 255 of the Telecommunications Act of 1996 requires
manufacturers of telecommunications and customer premises equipment
and vendors of telecommunications services to make their products
and services "accessible to" and "usable by" individuals with disabilities,
if it is "readily achievable" to do so. If such accessibility and
usability are not readily achievable, then the equipment and services
must be compatible with assistive technology commonly used by persons
with disabilities, again, if readily achievable.34
Section 255 is not a traditional civil rights law.
Rather, it is an accessible design statute, operating at the design
and manufacturing stages and not dependent on the existence of a
complaint or aggrieved individual for its requirements to come into
play. Individuals who feel that their customer premises equipment
(CPE) or telecommunications services do not meet the requirements
of the law can file a complaint with the Federal Communications
Commission (FCC) (which administers the law), but damages are not
available and lawsuits are not authorized. Examples of CPE are telephones,
fax machines, answering machines, and pagers.
Section 255 relates to E&IT accessibility in several
important ways. First, many E&IT devices are covered by the
law, particularly those that involve voice communication over phone
lines; telephone services themselves, indispensable to the use of
most modern communications technology, are also covered. Over time,
it is hoped that the mandate of Section 255 will result in progressive
improvements in accessibility and usability of mainstream devices
and services.
The second major contribution of Section 255 may be
called procedural. Because the principles of accessibility it enacted
were not self-executing or self-evident, Section 255 needed to be
operationalized in order for people to understand what was required
of them. To write the necessary standards, the Access Board created
the Telecommunications Access Advisory Committee, which involved
government officials, industry, and people with disabilities in
a collaborative effort at articulating the requisite functional
and performance standards. Utilizing the Electronic and Information
Technology Access Advisory Committee (EITAAC), the Access Board
used this approach again in developing the standards to implement
Section 508, and it is a method that may be useful for building
industry-consumer consensus in other E&IT access settings, as
discussed further in Chapter VI.
The third major contribution made by Section 255 is
the guidelines' embrace of the notion that technology cannot be
usable unless instructions, manuals, and similar sources of assistance
are accessible as well. Accordingly, manufacturers and service providers
are obliged to find effective ways for making this information (including
information about the accessibility features of the product or service)
available to customers and others who might need them.
One major limitation of Section 255 concerns the scope
of telecommunications functions and services covered. Not every
function or service that we perform or receive through the telephone
network is covered by Section 255. Three new terms must be introduced
into our discussion to explain these distinctions: "basic" services,
"adjunct-to-basic" services, and "information" services.35
Of these three categories, only the first two are covered.
Historically, voice telephony was the way most people
communicated over the phone and hence was what the law referred
to in its coverage of telecommunications services. Because of this
statutory and regulatory history, the FCC has construed Section
255 to cover these "basic" voice telecommunications services. The
FCC has also defined Section 255 to cover a class of closely related
services categorized as "adjunct to basic" services.36
Broadly speaking, these are the services necessary to make or receive
phone calls or services that as a practical matter are involved
in gaining access to the telecommunications network. They include
interactive voice response systems and voice mail, call waiting,
speed dialing, call forwarding, computer-provided directory assistance,
call monitoring, caller identification, call tracing, and repeat
dialing. Not covered by Section 255 are information services such
as data transmission (including email) and pictures.
From these distinctions between covered and noncovered
services, certain important implications follow for CPE. CPE is
covered by Section 255 only to the extent such equipment is designed
for use in performing or providing covered services. This issue
will be discussed further in Chapter VI.
C. Section 508
Section 508 of the Rehabilitation Act was amended
substantially in 1998 and now represents the most far-reaching source
of legal authority for accessible E&IT--a term it introduced
into this field. The law requires most federal agencies to "procure,
develop, maintain and use" only accessible E&IT for their own
use or for use by the public. The statute differs from conventional
civil rights laws in imposing affirmative obligations on federal
agencies that must be met well in advance of the occurrence of any
discriminatory impact upon an individual with a disability.
The scope of E&IT under the law is broad. No such
limitation as that just noted under Section 255 applies here. As
the 508 standards define it,
Electronic and information technology. Includes
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. The term "E&IT" includes,
but is not limited to, telecommunications products (such as telephones),
information kiosks and transaction machines, World Wide Web sites,
multimedia, and office equipment such as copiers and fax machines.
The term does not include any equipment that contains embedded
information technology that is used as an integral part of the
product, but the principal function of which is not the acquisition,
storage, manipulation, management, movement, control, display,
switching, interchange, transmission, or reception of data or
information. (36 C.F.R. Sec. 1194.4)
The reasons why 508 is already so great a landmark
in the history of E&IT access are legion. From the most practical
standpoint, it is expected to exert a powerful influence on design
practices throughout industry, as manufacturers are unlikely to
maintain two distinct lines of otherwise similar products, an accessible
one for federal agency customers, and a less or inaccessible one
for everyone else. As noted in Chapter II, harnessing the leverage
of the government's enormous purchasing power is in fact one of
the main objectives of the law.
Although Section 508 is revolutionary in the requirements
it imposes on government, it contains a number of structural features
reminiscent of Section 504, the ADA, and other disability civil
rights laws. For example, various circumstances exist, including
"undue burden," under which agencies can avoid complying with some
of its requirements. When undue burden is invoked to justify noncompliance
with one or more of the requirements of the law, agencies must document
the reasons for their inability to comply. The definition of undue
burden used in Section 508 is the same as that used under the ADA,
but although considerable experience has been amassed in applying
this concept under the older law, its implementation here raises
many questions. These will be discussed at greater length in Chapter
IV Section B.2.
Perhaps Section 508's most significant immediate effect
has been the occasion it offered for the Access Board to develop,
through the use of the EITAAC, detailed functional and performance
standards operationalizing what accessibility means in application
to a broad range of E&IT devices and services. The existence
of such standards should contribute significantly to enforcement
of E&IT access rights under a number of other civil rights laws.
In this connection, Section 508 is unique in representing
the most sophisticated model to date of a civil rights law that
closely integrates accessible design and enforcement strategies.
This law is an accessible design statute in that it mandates actions
that might not be possible or if possible would be far more costly
if doing them had to await the appearance of a person claiming discrimination
as a result of E&IT inaccessibility. But Section 508 combines
this feature with strong and clear enforcement by creating a civil
rights remedy for its violation. The law provides that covered agencies
must establish complaint procedures modeled on those used for handling
Section 504 complaints for use by people who claim their E&IT
access rights have been denied.37
Nowhere else is the right to seek redress for inaccessibility so
clearly established.
The right to file a complaint under Section 508 is
not as broad as the requirements the law imposes on federal agencies.
That is, the complaint mechanism is available only for violations
of the section in the procurement of E&IT. Violations relating
to the development, maintenance, or use of E&IT internally or
to the post-procurement activities of the agency cannot form the
basis for a successful 508 complaint. But this does not mean that
individuals whose access rights are denied by non-procurement-related
violations of Section 508 are without recourse. Such persons may
well be able to maintain a complaint under Section 504 if they are
members of the public and under Section 501 if federal employees,
based on whatever denial of access has actually occurred.
In those cases where a 508 complaint is viable, both
the similarities and the differences between the 504 and 508 legal
standards are important to remember. One critical difference is
the absence from Section 508 of any "program accessibility" defense
of the kind that could be raised to a claim of E&IT inaccessibility
under Section 504. Under Section 504, as with Title II of the ADA,
the obligation to make E&IT directly accessible and the option
to provide the information by other means form a continuum. Agencies
can argue that the availability of an adequate alternative to accessibility
reduces the obligation to provide it. If the information is provided,
they can argue that the requirements of program accessibility have
been met.
But under Section 508 this program-accessibility argument
is not available. Only after it is determined that the E&IT
cannot be made accessible does the question of alternatives become
relevant. The determination of whether accessibility is possible
or required must be made without reference to alternative strategies.
(The differing legal standards applicable to determining the sufficiency
of access measures under Sections 504 and 508 are further discussed
in Chapter 4 Section D.3.2 below.)
As with any far-reaching new law, many questions surround
508 that only time, experience, and administrative or judicial decisions
will resolve. We will address the most urgent of these questions
in the next chapter. For the moment, these unresolved questions
include the following:
When does the nature of a federal contractor's information-dissemination
responsibilities under a contract bring the E&IT used in fulfilling
the contract under the coverage of 508? When, if ever, do the requirements
of E&IT accessibility extend to documents, forms, or other materials
generated or disseminated by the covered E&IT? How will the
primarily financial "undue burden" exception be applied to the U.S.
government?
Questions such as these are critical, not only to
the long-term impact of Section 508, but also more immediately to
how the law is administered and to the kind of technical assistance
provided about the law (see Chapter IV Section B.3).
For example, a federally owned public computer terminal
that distributes information or forms must be accessible, meaning
that it must be independently usable by people with disabilities.
But does it follow from this requirement that the forms it yields
must be accessible as well? Similarly, when a federal agency uses
E&IT, such as a computer printer to generate a personalized
letter to a member of the public, covered equipment is certainly
being used. Does this mean the agency has any obligation to make
the informational product of that E&IT accessible, or to make
the information available to the citizen through alternative measures?
Probably not, at least not under Section 508, but only time and
the further evolution of our values will tell.
Also still subject to speculation at this early point
but of great importance are the questions surrounding interpretation
and application of the undue burden concept here. The 508 Final
Rule defines undue burden as
Undue burden means significant difficulty or expense.
In determining whether an action would result in an undue burden,
an agency shall consider all agency resources available to the
program or component for which the product is being developed,
procured, maintained, or used. (36 C.F.R. Sec. 1194.4)
Much hinges on the definition of "availability." Does
the law contemplate the exercise of discretion by agency heads,
so far as such discretion exists, to move funds among internal units
or budget categories? Does it ever require a department or agency
to seek supplemental budget appropriations to meet the requirements
of the law? Does the law create a situation where compliance by
larger agencies will be easier than by small? And in cases of government-wide
or multi-agency procurements, what agencies' available resources
are taken into account or pooled in determining and allocating relative
cost burdens? As this group of questions suggests, governmental
accounting and budgeting practices may have an important role to
play in the destiny of Section 508.
Chapter
IV Current Status of Accessibility Implementation
and Enforcement
This chapter reviews existing resources and procedures
for implementing electronic and information technology (E&IT)
accessibility in and by the Federal Government. Doing so is complicated
by the fact that Section 255 is relatively new, and Section 508
will not come fully into effect until June 21. Therefore, the mechanisms
and experience of implementation and enforcement under these two
laws are limited. Nevertheless, because many of the same approaches
(technical assistance [TA], regulations, complaint receipt, and
adjudication) are utilized under all of the laws, some findings
even with respect to the new statutes are possible.
A. The Context of Accessibility
Do the government's plans and activities reflect the
values of inclusion, and do they contain provisions for ensuring
that individuals with disabilities will have the same access to
e-government services or employment that other people do? Depending
on one's point of view, the government's efforts to utilize electronic
communication can be regarded as substantial or as inadequate. In
the case of government Web sites, for example, the Paperwork Reduction
Act and other laws and policies have contributed to their development
and rapid proliferation. A recent study found that only 15 percent
of government Web sites (state and federal) met standards of accessibility.38
The laws and regulations under which we all live are
among the most important categories of governmental information.
From the standpoint of accessibility to people who use computers
(including those with disabilities who have access to the Internet),
federal regulations as published in the Federal Register
and codified in the Code of Federal Regulations are readily
available. Included are those regulations bearing on the three statutes
of concern to us here. However, with sub-regulatory authorities,
ranging from interpretive guidances to administrative law decisions,
the picture government-wide is more mixed. Partly, of course, the
problem is that agencies vary in their ability or zeal to make this
array of materials available to the public at all, though the trend
is markedly in the direction of Web posting.
A review of the Web sites of the major agencies involved
in implementing and enforcing the three information access civil
rights laws (Department of Justice [DOJ], Equal Employment Opportunity
Commission [EEOC], and Federal Communications Commission [FCC])
indicates that accessibility has been institutionalized as an element
of their information-dissemination practices, and that the information
they make available via the Internet is by and large accessible
to computer users with disabilities.
As far as the presentation of these Web sites is concerned,
the EEOC Web site contains an excellent explanation of the reasons
underlying its accessibility policy,39
and the FCC, through its Disability Rights Office, not only maintains
a listserv for those interested in the Commission's disability-related
proceedings and orders but also provides a portal through which
concerns about the accessibility of particular documents can be
expressed.
Web sites are not the whole story of E&IT accessibility,
however. A significant proportion of people with disabilities, like
a large number of Americans as a whole, do not have access to the
Internet. A recent Department of Commerce study found that people
with disabilities were only half as likely to have access to the
Internet as other Americans.40
And Americans with disabilities from culturally diverse backgrounds
have an even lower level of access to the Internet. This disparity
is potentially more serious for people with disabilities than for
the population at large. Most people who do not have Internet access
can go to local libraries and read the regulations at no charge.
But for persons with disabilities who may face barriers in transportation,
physical access, or print media access, this is not always so easy.
Moreover, as libraries make ever greater use of computers, many
of the E&IT access issues that people with disabilities face
at home or work are also encountered in these public settings.
In terms of non-computer-access, the agencies charged
with enforcement of our e-civil rights laws (principally DOJ's Disability
Rights Section, the FCC, and the EEOC) have done a creditable job
of making their proposals, final rules, and other documents available
in alternative formats for people who request them. Nevertheless,
anecdotal reports from consumers suggest that in some cases the
lead-time required to receive these documents can be longer than
they consider acceptable. When outside contractors are used to produce
or distribute documents, agencies may or may not have procedures
in place for monitoring the performance, timeliness, formatting,
and customer-relations practices of these fulfillment contractors.
B. Document Contents
1. ADA
For the Americans with Disabilities Act (ADA) alone,
enforcement responsibility is divided among at least a half dozen
federal agencies, including the EEOC (Title I); DOJ (for most claims
under title II and all claims under title III); the Department of
Education (for certain claims arising in public education under
title II); the Department of Transportation (with respect to title
II claims outside the scope of this study); and the FCC (Title IV).
The National Council on Disability's (NCD) recent
report on the ADA, Promises to Keep:
A Decade of Federal Enforcement of the Americans with Disabilities
Act, analyzes the enforcement practices of all these agencies
in detail. We do not propose to duplicate and cannot add to that
exhaustive study here. Instead we propose to suggest those respects
in which the current regulatory and administrative framework may
be either especially well-suited or in need of changes, if it is
to effectively address E&IT access issues.
Although the documents themselves are accessible,
the regulations issued by the implementing agencies in their respective
spheres of responsibility contain little or no guidance or information
about access rights to E&IT.
1.1. The Department of Justice
To illustrate the paucity of fresh references to E&IT
issues, the examples provided in DOJ's Title II and Title III regulations
concerning what constitutes auxiliary aids and services have not
been modified since their publication nearly a decade ago, and as
such refer only to a few of the most prominent technological options
available at that time.41 Forthcoming
revision of the Americans with Disabilities Act Accessibility Guidelines
may help to bring the regulations up-to-date,42
but at present the absence of computer-oriented or E&IT-based
examples and the lack of reference to requirements that may be applicable
to E&IT deprive the DOJ regulations of some of the vitality
and relevance they should command.
In particular as noted in Chapter III Section A.3
above, the failure of the regulations to include any guidance regarding
the Department's position on Internet coverage under Title III is
disturbing, for it suggests an unwillingness on DOJ's part to tackle
this growing area of e-commerce, a doubt about the soundness of
its analysis or of its ability to enforce the law in this area,
or a fear that the courts will not sustain DOJ's interpretation.
As the agency vested with responsibility for enforcing the ADA,
DOJ has the greatest expertise on its meaning and would ordinarily
be deferred to by the courts if its interpretations of the law were
reasonable. If the Department's considered opinion is that Title
III covers public accommodations provided through the Internet,
that decision should receive far more visibility and follow-up than
it has.43 Given the growing importance
and transformative impact of e-commerce and the Internet, consumers,
businesses and policymakers alike deserve and need to know what
the primary enforcement agency believes the law expects of them.
In Chapter III Section A.3, we suggested that one
reason for DOJ's hesitance to articulate a Title III Internet policy
may have been the Department's concern that no objective means existed
for evaluating Web site accessibility. We suggested that publication
of the Access Board's 508 final rule substantially eliminated this
concern. But almost a year before publication of the final rule,
DOJ developed and utilized its own Web page accessibility and software
accessibility checklists which were disseminated to federal agencies
as part of the electronic accessibility self-evaluation questionnaires
distributed in early 2000 and used as the basis for DOJ's April
2000 report, Information Technology And People With Disabilities:
The Current State Of Federal Accessibility.
Because DOJ declined to be interviewed for this study,
no authoritative explanation of its internal processes and communications
can be offered. We are dismayed, though, to learn that the Department
had Web accessibility standards that it believed were good enough
to be used in the 508 self-evaluation process but was unwilling
to apply these standards in any of the other contexts where definition
and clarification of the meaning of Web access were so desperately
needed and so long overdue. DOJ has yet to provide any guidance
regarding the specifics of Title III application to the Internet,
though the Department now has its own checklists (derived from the
private sector guidelines developed by the World Wide Web Consortium
[W3C])44 and the Access Board's
parallel public sector guidelines on which to draw.
1.2. The Equal Employment Opportunity Commission
In its three major documents for internal and public
use bearing on enforcement of Title I of the ADA, EEOC acknowledges
the potential role of "information technology" and "adaptive equipment"
in the occurrence and investigation of employment discrimination
claims. In its Reasonable Accommodation Information Report Form,
used by staff to document investigative procedures and findings,
item #9 in its checklist of issues to be addressed asks whether
such adaptive equipment was requested by the employee.45
Likewise, its major enforcement guidance to employers, issued March
1, 1999, reminds them of their obligations regarding adaptive equipment
and information technology in the reasonable accommodations context.46
This usage of the term "adaptive equipment" points
up a major nomenclature problem associated with raising awareness
of E&IT accessibility. The term is not widely used in other
contexts and has been largely superseded by the term "assistive
technology" which entered our law in the Technology-Related Assistance
for Individuals with Disabilities Act of 1988 and which has subsequently
been adopted in successive amendments to statutes governing major
disability services programs such as the Rehabilitation Act and
the Individuals with Disabilities Education Act.47
Conversations with EEOC staff indicate that the terminology
they use is well-established in the employment discrimination field,
and further that terms such as "assistive devices" would be confusing
to human resources professionals who would regard such a term as
referring to personal devices (like hearing aids or eyeglasses),
which the ADA expressly excuses employers from having to provide.
Nevertheless, greater uniformity of language across programs and
statutes must be achieved if the growing complexity of issues and
concepts of E&IT accessibility is ever to allow development
of consensus around broad policy values.
Far more problematic is the way Title I's enforcement
obligations operate. In all of its enforcement documents and guidances,
EEOC makes clear that the obligation for employers to provide adaptive
equipment or information technology is a matter of reasonable accommodations
and as such is predicated on a request or expression of need by
an employee. Nowhere has EEOC reminded employers of the potential
benefits (including avoidance of discrimination complaints and reduction
of accommodation costs) that might flow from early and systemic
attention to acquisition of accessible E&IT infrastructures
(office equipment, intranets, pagers, etc.). The Commission maintains
that since such proactive or preemptive measures are not required
of private sector employers by ADA, it lacks authority to issue
such guidance. But the Commission does offer covered employers a
variety of advice on many subjects and could easily upgrade the
amount and quality of nonbinding advice and information it offers
on E&IT accessibility or part of its TA/training efforts. The
growing importance of E&IT in the performance of the "essential
functions" of so many jobs cries out for guidance from the Commission
to the disability and business communities. In Chapter VI we will
discuss what form such guidance should take and how E&IT accessibility
is analogous to other ADA regulations which require employers to
implement procedures that protect against discrimination before
it takes place.
Another area of concern relates to the differentiation
in EEOC's guidances between the responsibilities of private sector
employees and those of public sector employers. Although EEOC has
issued a guidance specifically concerned with establishment of reasonable
accommodation procedures by federal employers,48
the Commission has yet to come to terms with the implications of
Section 508 for employment discrimination claims against federal
employers arising under Section 501 of the Rehabilitation Act. In
Chapter VI we make recommendations concerning the extent to which
EEOC should regard federal agency compliance or noncompliance with
Section 508 as evidence in employment discrimination cases and concerning
other key issues posed by the intersection of Sections 508 and 501.
One final concern arises from EEOC's documentation
of resources. Although each of the major enforcement and informational
documents reviewed contains a resource list of agencies or organizations
with expertise on various accommodations issues, the listings for
TA in connection with E&IT accessibility are extremely limited.
RESNA (Rehabilitation Engineering and Assistive Technology Society
of North America, through which EEOC indicates state Technology-Related
Assistance for Individuals with Disabilities Act of 1988 projects
can also be located) is the one organization mentioned. While RESNA
represents an excellent starting point for all disability- and technology-related
inquiries, the absence of TA resources with a more specific E&IT
accessibility focus is striking. We did not determine how and how
often such resource lists are updated.
1.3 The FCC
This report does not deal in any detail with the FCC's
involvement in ADA enforcement. The Commission is not charged with
any major E&IT-related responsibilities under the three civil
rights titles of the law. But this is not to say that the FCC does
not have an important role in the implementation of Title IV through
its certification and supervision of state-based telephone relay
systems and through its backup role in adjudicating complaints against
state relay services if state authorities cannot satisfactorily
resolve them within six months.
Certainly relays can properly be characterized as
E&IT services, and they are likely to become more so as the
technology involved in implementing these systems advances.
2. Section 508
Most of the regulations needed to implement Section
508 are yet to be written. More federal agencies, each with their
own procurement regulations and culture, will be more involved in
the implementation of this new law than in the enforcement of any
previous disability rights statute except Section 504. Nevertheless,
the guidelines issued by the Access Board along with the Notice
of Proposed Rulemaking (NPRM) and Final Rule incorporating the provisions
of the Access Board guidelines into the Federal Acquisition Regulation
(FAR) have been published.49 From
these, certain difficulties in the implementation of accessibility
can already be foreseen. Although this report is not intended as
an implementation guide for Section 508, the issues presented in
the relevant rules and regulations must be discussed because of
their potentially profound impact on the accessibility of the E&IT
covered by this law.
While the regulations issued by the Federal Acquisition
Regulations Council (FARC) will largely dictate the form and content
of each agency's implementation of the law, the great variation
in agency styles, histories, resources, and needs leads to concern
that some agency-by-agency regulations may imperfectly mirror the
federal mandate, as sifted through the two overarching levels of
regulation and instruction provided by the Access Board and the
FARC.
The federal agency self-evaluation process administered
by DOJ (see Section C of this chapter) may help to prevent such
discrepancies by revealing any agency rules or practices that depart
from the premises of the law. But if this does not happen, other
means for reviewing each federal agency's approach to 508 will become
imperative.
Thus far, nothing in the Federal Government's implementation
of Section 508 suggests the degree of foresight or the level of
centralized decision making required to make the law's accessibility
policy consistently effective. One problem in this regard concerns
the procedures specified in the FAR (issued April 25, 2001) for
agencies to make undue burden claims. Under the rule, while agencies
are required to document the reasons why a particular requirement
would be unduly burdensome, and while they are required to retain
this documentation in the contract file, no provision is included
for monitoring or reviewing such undue burden determinations. They
need not be forwarded to General Services Administration (GSA) and
need not be made available to the public, though the FAR indicates
that they are subject to disclosure under the Freedom of Information
Act.
Significant concern is warranted over whether the
regulation gives adequate guidance on the meaning of undue financial
burden. In its final rule the FARC (reacting to comments made in
response to the proposed final rule) indicates that the case law
and other authorities amassed under the ADA for interpreting the
undue burden concept are sufficient to facilitate its application
to 508. The undue burden concept has been applied to Section 504
of the Rehabilitation Act on which the ADA's use of the law is largely
modeled, but because Section 504 cases involve issues of individual
accommodation, application of the principle on a systemic basis
as called for by Section 508 remains to be explored.
The particular barrier to accessibility here arises
from the use of the standard of significant difficulty or expense.
Significant or excessive or undue expense is not defined in the
regulation other than in terms of exceeding the "resources available"
to the "agency or component." Unless determination of undue cost
is to become a captive of the accounting precepts and budget categories
used by the Federal Government, this reference to "available resources"
raises more questions than it answers. For instance, in determining
the available resources of an agency or sub-agency component, is
the requiring or contracting officer expected or permitted to take
into account any discretion the agency head may have to reallocate
funds among units or between budget categories? Are agencies permitted
or expected to apply to the Office of Management and Budget (OMB)
for the various exceptions and flexibilities OMB has the authority
to grant, or to request inclusion of an accessibility line item
in a supplemental or regular annual budget request to Congress?
While the answers to some of these questions can be
plausibly guessed at through analogy to other established procurement
policies, and while no regulations can anticipate all conceivable
questions that may arise in the day-to-day administration of the
law, publication of rules as vague as these on so many key points
can be characterized only as an invitation to confusion. Left to
improvise, agencies will do so in good faith, but all too likely
with a non-uniform array of results.
3. Technical Assistance and Training Materials
TA and information outreach (including distributing
materials, responding to questions, and other activities) represents
one of the chief means available under all three statutes for conveying
information about the law and for maximizing voluntary compliance
among covered entities and sectors. In any area of complexity and
rapid change, concern is justified over the effectiveness of TA.
In the E&IT setting, TA confronts some special
issues and complexities. Degradation of information is a constant
danger, but here, obsolescence may be an even greater risk. What
is needed therefore are mechanisms for ensuring that TA partakes
of the most up-to-date legal and technological information. Because
TA and training materials can be updated far more rapidly than regulations,
these resources bear the heaviest responsibility for timeliness,
especially in an area where generations of new technology succeed
and supersede one another over ever-shortening product cycles.
DOJ's approach to TA in connection with the Internet,
public access computing, and other E&IT is once again a case
in point. The Department's TA resources for various audiences do
not appear to highlight either the potential role of E&IT in
meeting the requirements of the law or changes in law or technology
pertaining to the role and potential of E&IT.
In defense of the enforcement agencies, TA resources
may be so limited that providing information on particular topics
of concern is not always feasible. But this is the reason for setting
priorities. Precisely because E&IT access rights are new and
unfamiliar, they need special attention and nurture.
TA resources for implementation of Section 508 are
beginning to appear. Through the creation of an accessible, centralized
Web site at www.section508.gov
and through TA contracts to organizations for outreach to specified
audiences, the Access Board, GSA, and other agencies are off to
an encouraging start. Still, review of materials generated thus
far under these contracts leads to concerns that some key E&IT
issues may not be addressed to the degree necessary. Effective TA
under Section 508 will require new models and variations which the
Federal Government may or may not yet be equipped to deliver or
even to request.
To understand why this is so, consider one crucial
difference between the ADA and Section 508. When an ADA-covered
entity implements an accessibility feature, reasonable accommodation,
or change in policies, practices, or procedures, it is not ordinarily
the responsibility of the Federal Government to explain these enhancements
to end-users or to provide the training and technical support necessary
to ensure that end-users can take advantage of accessible E&IT.
Similarly, apart from its role as facilitator of communication between
telecommunications customer and equipment manufacturer or service
provider, it is not the responsibility of the FCC to sit with the
customer and explain and demonstrate how the accessible technology
works.
By contrast, because the entities implementing E&IT
accessibility under Section 508 will themselves be Federal Government
agencies, TA in this realm will have to include both the empowering
of the agencies to comply with the requirements of the law and the
empowering of federal employees and members of the public to utilize
the E&IT that has been procured and put into use as a result
of that compliance. These two forms of TA, though closely intertwined,
are also quite distinct. Only with balanced, integrated attention
to the needs of both agencies and end-users can the purposes of
Section 508 be fully accomplished.
A review of TA resources developed in support of Section
508 thus far suggests somewhat greater emphasis on the issues surrounding
federal agency compliance than on the problems, practices, and needed
resources associated with making 508 work at the end-user level.
This early emphasis is understandable given the exigencies of putting
so significant and unprecedented a law into effect over a relatively
short period. However, the parallel needs for human and technical
resources at the far end of the process must not be overlooked,
lest inadvertent inattention to community outreach, training of
the public, and other key links in the accessibility chain result
in reduced use and community support of accessible E&IT. Friends
and foes of accessibility alike will be eager to know how many people
avail themselves of E&IT accessibility under Section 508. Appropriate
TA will plan a key role in determining whether the number is large
and whether the response is positive.
4. Record-Keeping
Because E&IT access has never been a discrete
subject of civil rights enforcement, few if any records or record-keeping
systems are organized in ways that can shed the needed light on
the global issues or the settings in which information access problems
exist or are most likely to arise, or on the strategies that have
proved most successful in enforcing and improving E&IT access.
Records organized around type of disability, nature of entity complained
about, action taken by enforcement agency, amount of money recovered
for discrimination victims, and other traditional categories, while
invaluable, are not necessarily sufficient to meet the needs of
E&IT access.
Building on existing data collection techniques, information
categories, and records-maintenance formats, the agencies involved
in implementing all three statutes have a potentially historic but
time-limited opportunity to address the issues of record-keeping
and data collection in new ways that will allow problems, successes,
and needs in the E&IT area to be detected early and dealt with
promptly. Irretrievable opportunities may be lost if careful attention
is not paid at the dawn of 508 to developing data sets, data collection
techniques, and strategies for effective information sharing and
coordination among the increasing number of agencies involved in
508 enforcement. Specifics of such record-keeping innovations will
be discussed later in Chapter VI. Information on the range and number
of products and contracts changed by application of Section 508,
the costs and perceived benefits to each agency of the 508 process,
the difficulties experienced by agencies in implementing the law
and obtaining authoritative guidance on its interpretation, the
number of employees and members of the public availing themselves
of the law, and the techniques used to provide awareness of and
training in the use of accessible E&IT: All of these will be
critical as elements of a cross-agency record-keeping process contributing
to amassing the kind of knowledge base that not only informs but
persuades public policymakers about agendas and choices. Among other
things, such information should greatly enhance the depth of the
biennial reports the Attorney General is required to submit to the
President and Congress.50
C. New Forms of Documentation
1. Agency Self-Evaluations
Self-evaluation and self-study are by no means new
concepts in civil rights law. Self-assessment was an important tool
under the ADA, particularly for Title II entities, and its potential
value as a means of anticipating problems and achieving compliance
is considerable. Self-assessment under the ADA though was largely
a private, internal matter. Section 508 takes self-evaluation to
a new level of visibility and importance.
Under the law, "the head of each federal department
or agency shall evaluate the extent to which the E&IT of the
department or agency is accessible to and usable by individuals
with disabilities compared with the access to and use of the technology
by individuals who are not individuals with disabilities....51
The statute also calls for the Attorney General to submit biennial
reports to the President and Congress including information and
recommendations on Section 508.
To implement the agency-by-agency reporting process,
DOJ has adopted a questionnaire survey format that is self-administered
by each agency. The first report on these surveys was issued in
April 2000,52 and this year's questionnaires
were sent out on January 18.53
Depending on how they are used, these questionnaires
can be of enormous value in their own right, and also demonstrate
a dynamic new way of monitoring civil rights enforcement in other
multi-agency settings. How these questionnaires will be used and
whether respondent agencies will feel free to be candid will be
determined by whether agencies experience the process as designed
to help them or to catch their mistakes and publicize their shortcomings.
Interviews with participants in the 508 implementation
process suggest a high level of commitment and enthusiasm within
the federal service. Under these circumstances, indications point
to the questionnaires being received positively by many agencies
thus far. But once we reach a point where compliance is no longer
a prospective issue, where slowness in achieving Web site accessibility
or in establishing the internal procedures about which the questionnaires
inquire becomes an ongoing rather than merely potential violation
of the law, these receptive attitudes may change. In Chapter VI
we will suggest strategies by which failures or delays revealed
by the questionnaires can be put to positive uses and followed up
with supportive and targeted TA.
One additional caveat about this self-assessment process
must be noted. While the report reflects that department personnel
checked various responses, no systematic procedures exist for independent
monitoring of these reports. There is always danger that agencies
and officials will be overly optimistic regarding the success of
their accessibility efforts, or that because subjective factors
play a part in the reporting process, agencies will use different
standards in answering some questions.
2. Market Monitoring Reports
Another potentially useful form of documentation in
broadly evaluating progress toward accessibility is the market monitoring
report. The Access Board developed this reporting format as a means
of monitoring telecommunications industry progress in meeting the
goals of Section 255.54 According
to interviews with staff from the Access Board and the FCC, its
continued use is not certain, but the mechanism is worthy of exploration
and possible adaptation for other broad-based efforts to track progress
toward accessibility among various industry sectors or product lines.
The Market Monitoring Report allows the identification
of industry sectors or product lines where progress may not be as
fast as expected. Resources can then be brought to bear in an effort
to find out why and develop approaches useful in accelerating the
pace of progress. Again, in keeping with the overall approach of
the Section 255 implementing agencies (Access Board and FCC) the
approach is not punitive. Rather, the intention is to find methods
and partnership possibilities that can constructively contribute
to the goals of the parties.
D. Agency Practices and Culture
As NCD's ADA study powerfully portrays, enforcement
agencies varied greatly in every aspect of their implementation
of the law. Even within a single agency, administrative components
differed in many aspects of their approach. For this reason, our
investigation of E&IT implementation efforts to date needs to
include practices and activities of civil rights agencies that arise
from custom and practice as well as from written regulations or
overarching law.
1. Case Finding
No one would welcome a world where civil rights enforcement
agencies regarded apprehension of wrongdoers as their exclusive
mission or conducted themselves in an inquisitorial manner. But
the limitations on enforcement resources together with the need
to set priorities dictate that some proactive effort be made to
identify and address those problems of greatest seriousness. Accordingly,
case finding is an indispensable component of any effective program
of civil rights law enforcement, just as it has always been of all
laws aimed at the public good. From public health inspections of
restaurants to police patrolling of highway locations where speeding
is common, case finding is a necessary part of all our legal institutions.
Case finding may be both easier and more highly leveraged
in the field of E&IT than in many other contexts. Frequently
E&IT access issues will arise from national trends in technology
design, such as use of touch screens, that have an impact on large
numbers of people. Whereas many traditional discrimination cases
revolve around exquisitely complicated disputed and highly individualized
fact patterns, the issues giving rise to E&IT cases will often
be much clearer, if not necessarily easier to resolve. For these
reasons, the energetic identification and pursuit of key E&IT
cases can be highly leveraged, redounding to the benefit of large
numbers of people and making investment in E&IT case finding
an extremely cost-effective commitment of scarce time and resources.
For example, if the newest release of a major Web
browser is inaccessible to screen-readers, or if a major public
or private Web site has become inaccessible to one or another subgroup
of users with disabilities, the impact is likely not confined to
one or even a few individuals. Though the time and effort invested
by the enforcement agency in developing the case may be no greater
than that required for working up other kinds of cases, attention
to the problem can directly benefit larger numbers of people.
Major national civil rights cases have been mounted
before under ADA against car rental chains, among others, but the
resolution of these cases, though frequently involving civil penalties
and payment of damages, has typically focused on prospective modifications
in policies or procedures or on the tightening of management oversight
and the upgrading of training. In those relatively few settlements
involving technology, the type of equipment involved has typically
been add-on assistive technology such as hand controls for rental
cars. No cases have been found in which the respondent was required
to engage in research and development or to retrofit existing E&IT.
In the foreseeable kinds of major E&IT cases,
the stakes may be much higher for the defendants, and the potential
middle ground needed for settlement may be harder to find. Of course
there is always risk that major case finding will produce major
resistance, particularly on the part of large and powerful producers
and suppliers of E&IT, including recourse to the media or political
pressure.
Regardless of whether the enforcement agency finds
the major case or the case finds the agency, E&IT cases with
national implications are likely to involve technical complexities
that have not typically confronted litigators before. For one thing,
more parties may be involved. In the archetypal ADA suit against
a hotel chain, the chain, one or more of its franchisees, and possibly
an architectural firm are likely to be involved as respondents.
But with modern interconnected E&IT systems, allocation of responsibility
for the problem, let alone allocation of the costs of remedial action
including potentially expensive retrofitting, may prove contentious
and difficult. The negotiations between advocates and banks over
automated teller machine (ATM) accessibility discussed in Chapter
III Section A.3 exemplify this potential. Some banks contended that
their ability to provide accessible machines was controlled by the
design decisions made by machine manufacturers. On the other hand,
manufacturers argued that they could and would do whatever their
customers wanted but said they had never been asked to incorporate
accessibility features such as speech output. Additionally, disputes
arose over whether the solutions were hardware or software based
and as to the role of the telecommunications service providers (telephone
companies) whose networks kept the machines in contact with a number
of central computers.
Agencies do not generally formalize their approaches
to case finding. For that reason, disagreement is readily possible
over what approach an agency is taking or what goals--case quality,
volume, ease of success, funds recovered for complainants, important
sectors put on notice--the enforcement agency is seeking to achieve.
The impression is widespread that the enforcement agencies have
not been aggressive in finding or pursuing major cases under the
ADA.
With regard to the FCC's approach to case finding
and litigation strategy under Section 255, the Commission's statements
supplemented by interviews indicate Commission reliance on a strategy
of initially trying to resolve complaints by fostering dialog between
the end-user and the manufacturer or vendor. The Commission has
indicated its intention to rely heavily on complaints rather than
on case finding in order to determine where the problems are. Concern
exists as to what the Commission will do if and when the consumer
complaint process discloses problem products or services.
In this connection Section 255 may become a hostage
to broader philosophical changes in the overall attitude of the
FCC toward legal enforcement and intervention in the market economy.
The FCC has gone on record on several occasions as being opposed
to an activist or interventionist Commission. Thus while the Commission's
commitment to E&IT accessibility remains high, traditional models
of enforcement may potentially play a lesser role in its implementation
strategy.
Section 255 marked a new plateau for FCC involvement
in civil rights. Of course the Commission, like other federal regulatory
agencies, had previously been responsible for its own internal practices
as well as for enforcement of nondiscrimination requirements applicable
to the entities it regulated. But with Section 255, the FCC was
made responsible for a new dimension of civil rights enforcement
that had no parallels in legislation or in the experience of other
agencies. If the FCC were to regard Section 255 as an example of
the activism and regulatory assertiveness to which the FCC is philosophically
opposed, this important civil rights protection could be caught
up in a deregulation net where it does not really belong.
Section 508 presents an entirely different picture
so far as litigation strategy is concerned. In other civil rights
settings, the government can be involved either in bringing a case
or as an intervenor. Under the ADA there would be virtually no occasion
for the government to be the defendant or respondent. By contrast,
if administrative complaints or lawsuits are filed under Section
508, the Federal Government, as a whole or in the guise of one of
its departments or agencies, is by definition the respondent. This
situation essentially precludes use of many established mechanisms
for influencing the direction of the law or for using litigation
posture as a means for setting or influencing public policy.
When cases against the Federal Government go to court,
the respondent agency is usually represented by DOJ, whose job is
to defend the government against charges of unlawful activity and
of course to protect it against exposure to financial liability
or against rulings that would hamper its freedom of action or contradict
its policy goals. From neither the public relations nor the legal
standpoint does the government like to admit wrongdoing or concede
liability. But where the very DOJ that is called upon to represent
an agency in a suit over 508 also has knowledge through the agency's
self-evaluation questionnaire that the agency is out of compliance
with the law, serious structural tensions may emerge. Exactly how
DOJ will carry out its dual responsibilities under Section 508 is
a matter of concern to all advocates of this new law.
The government's role as defendant also prevents it
from acting as a friend of the court through filing amicus briefs.
This deprives the government of one traditional tool for contributing
to the public policy debate surrounding adjudication of certain
key issues.
2. Mediation
Faced with case backlogs and the recognition that
litigation, though sometimes necessary, in a sense represents failure,
ADA enforcement agencies, consistent with the mandate of the law,
have endeavored to develop and utilize alternative dispute resolution
(ADR) techniques including mediation. In that connection, resources
have been dedicated to training mediators in the requirements of
the law and about related issues. The EEOC, for example, includes
training mediators in its current five-year strategic plan.55
Depending on how a particular agency approaches the
subject, extending mediation to the E&IT setting will pose problems
not usually encountered in other contexts. Principal among the questions
raised by use of mediation in E&IT is whether effective mediation
of these cases presupposes the existence or availability of expert,
often highly specialized, technical knowledge. Without such resources
it may be difficult or impossible for a mediator to assess the merits
of the claims, to have any realistic sense of what solution is technologically
possible, or to know how much it might cost.
In an interview, EEOC indicated that its contractual
and pro bono mediators are well-trained and experienced in ADR,
the requirements of the applicable equal opportunity laws, and mediation
techniques. EEOC does not believe that specialized technological
knowledge is necessary for effective mediation since it is not the
role of the mediator to determine the rights or wrongs between the
parties.
Our research has not determined whether any civil
rights enforcement agencies are currently seeking or utilizing the
services of mediators with substantive E&IT or related technological
knowledge. In any event, recruiting disinterested mediators with
the requisite knowledge base will require creativity and outreach
beyond conventional resources. In Chapter VI we will recommend measures
for use by enforcement agencies to involve end-users with disabilities
in the E&IT implementation process. Whether persons whose experience
derives largely from the use of E&IT would be acceptable to
industry and business as mediators is one possibility that should
be explored.
3. Complaint Processing
Effective complaint processing is a fundamental necessity
in any civil rights enforcement structure. Despite our best efforts
to secure voluntary cooperation and compliance with the law, mechanisms
must be available for promptly and equitably adjudicating those
disputes that cannot be avoided or resolved by negotiation.
We do not deal with the ADA complaint process here.
NCD's ADA report has dealt with this process. However, the emerging
complaint processing procedures adopted under Section 255 and 508
are especially vital to discuss here because decisions made about
these processes at this early stage can significantly affect how
the law operates and, perhaps as important, how it is perceived
by the public.
3.1 Section 255
The FCC has established a system whereby informal
complaint intake occurs in the Disability Rights Office while the
Enforcement Bureau handles formal complaints. In addition, the Commission,
on its own motion, may take remedial actions or apply sanctions
to telecommunications service providers or equipment manufacturers
if appropriate.
Because the FCC initially contacts the defendant upon
receiving a complaint, the parties themselves are likely to provide
much of the information the enforcement agency might otherwise obtain
through case investigation. We do not yet know what will happen
if dialog between the parties fails to produce a resolution, or
if there is substantial unresolved dispute over the facts of the
case or over the potential of the technology. The Commission can
utilize any of the investigative or information-gathering techniques
available to it by law for the resolution of Section 255 complaints.
The Commission also has broad discretion in the remedies and compliance
measures available to it in the event a manufacturer or service
provider conspicuously violates or disregards the law.
As suggested above, only time will tell how the Commission
decides to exercise its authority. One serious problem with leaving
much of the gathering and presentation of evidence to the parties
does emerge clearly. If the Commission relies on the parties, then
it is dependent on their ability to accurately and fully assess
the relevant facts. A lone consumer and a large telecommunications
company will hardly be evenly matched or equally informed players.
A company that tells a customer that no technological solution exists
for a particular access problem may well extract from the customer
an expression of satisfaction with the process, but without some
independent review by the Commission or other knowledgeable and
disinterested third party, there can be no guarantee that the resolution
reached by the parties (and conveyed to the Commission) is in fact
the only or even the best possible solution.
Another area where reliance on the parties may not
be adequate involves those complaints where equipment manufacturers
and service providers are jointly concerned. Without participation
by the Commission, the average user has little hope of penetrating
to the truth in situations where the manufacturer and service provider
each claims the other is responsible for the problem or is better
able to provide a solution. The predicament is akin to a non-medically-trained
patient having to decide which specialist's diagnosis to accept
when they completely disagree on the cause and treatment of the
illness.
3.2 Section 508
With Section 508 we once more confront an entirely
different and somewhat novel complaint-processing situation. As
suggested earlier, an agency against which a 508 complaint is lodged
will play the dual roles of defendant and jury. Over the course
of 25 years, the mechanism for doing this has been developed and
refined under Section 504 of the Rehabilitation Act. But in the
adaptation of the 504 complaint-handling process to the subject
matter and conditions of 508, some new complexities are likely to
arise.
Section 508 is revolutionary in providing a right
of action and the potential for relief for federal employees or
members of the public alleging violation of the law. The statute
provides for covered federal agencies to adapt their Section 504
complaint-handling processes for use with 508. The law states:
Complaints filed under paragraph (1) shall be filed
with the federal department or agency alleged to be in noncompliance.
The federal department or agency receiving the complaint shall
apply the complaint procedures established to implement Section
504 for resolving allegations of discrimination in a federally-conducted
program or activity.56
In obliging agencies to model their Section 508 procedures
on those in place under Section 504, the law apparently gives them
a choice. They can either develop a system from scratch that parallels
or is modeled on 504 or use their existing 504 systems for handling
any 508 complaints. As indicated above, though, these procedural
similarities between the old and new statutes should not obscure
major differences in how the complaint process will function.
The following key questions about 508 highlight these
differences. First, the law is not clear exactly which violations
of Section 508 a federal employee or member of the public is authorized
to challenge. For example, can the complainant challenge the implementation
of a procurement contract on the ground of its or the contracting
agency's failure to comply with Section 508? If so, can the agency
or a court retroactively order that the contract be modified or
declared void?
Whatever the eventual answer the courts give to questions
such as these, the more immediate concern is that agency 508 coordinators
and administrative law judges may find themselves sitting in review
of highly technical decisions made by coordinate officials with
differing expertise. Even if not called on to pass judgment on the
sufficiency of their colleagues' undue burden or other key determinations,
these officials will still need to decide whether E&IT is accessible--specifically,
whether it meets the requirements of the FAR rule. That determination
is also a potentially technical one involving the need for resources
and expertise that the decision makers are unlikely to possess and
that are most readily available from the very officials who made
the underlying procurement or design decisions.
The final question in this connection relates to what
we may call the fall-back provision of the law. The law provides
for alternative measures to be used for facilitating information
access where accessibility or compatibility are not possible. In
cases where agencies have advance knowledge that a procurement will
create or result in inaccessibility of E&IT, the agency should
likewise plan in advance for such alternative measures. Failure
to do so may force the 508 complaint adjudicator into the position
of having to fashion ad hoc remedies, which may necessitate demands
on other sectors of the agency that such officials are not customarily
in a position to make.
Agencies are likely to receive little guidance about
what determines the adequacy of alternative measures in the 508
context. Failing any such guidance, the case law and experience
accumulated under 504 will represent the best source of guidance
on this point. But once again, the technology environment invests
the question of what is an adequate accommodation with some intricacies
that are largely new to those who will be called on to grapple with
them.
Faced with this question of what constitutes an acceptable
alternative measure, adjudicators may easily resort to the jurisprudence
built up under Section 504. In that case, program accessibility
would probably represent the appropriate substantive standard. But
as noted earlier, this may not in fact be the applicable standard.
Section 504 claims adjudicators and agency planners must remember
that Section 508 relates to 504 only insofar as the rights and remedies
available under 504 are concerned. Even if the procedures and remedies
available under the two sections are the same, the substantive standard
for compliance with 508 may be higher than program accessibility,
for 508's touchstone or standard is comparability. Section 508 speaks
in terms of comparable access to information for persons with and
without disabilities. In this connection, the law states:
When developing, procuring, maintaining or using
electronic and information technology, each federal department
or agency...shall ensure, unless an undue burden would be imposed
in the department or agency, that the electronic and information
technology allows, regardless of the type of medium of the technology--(i)
individuals with disabilities who are federal employees to have
access to and use of information and data that is comparable to
the access to and use of the information and data by federal employees
who are not individuals with disabilities; and (ii) individuals
with disabilities who are members of the public seeking information
or services...have access to and use of information and data that
is comparable to the access to and use of information and data
by such members of the public who are not individuals with disabilities.57
Thus, an accommodation may satisfy the requirements
of Section 504 by virtue of providing program accessibility, but
fall short of satisfying 508 because it does not offer truly comparable
access to information for the individual with a disability.
Nothing in Section 508 in any way suggests that the
comparable access standard ceases to apply when an agency is required
to resort to alternative methods. Given the almost limitless range
of alternatives that may be available in various situations, the
question of what comparability means takes on great importance.
In Chapter VI we will suggest a three-pronged test of comparability
that agencies may find useful and that they may wish to incorporate
into their planning for handling 508 complaints.
Apart from complaints from employees or members of
the public, agencies are likely to face another sort of unfamiliar
legal challenge under Section 508. While legal challenges to the
award of procurement contracts are not new, their number is likely
to increase and their character to be changed by Section 508. In
planning for life under 508, agencies must therefore anticipate
that disputes over whether bids do or do not comply with the requirements
as well as challenges to contract awards are likely to emerge.
On one level, the notion that bidders will compete
over accessibility is an attractive prospect. But on another level,
this prospect may introduce delay, uncertainty, and awkwardness
of many kinds into the procurement process. We do not yet know what
proportional weight 508-compliance carries in the overall evaluation
of goods and services proffered to the government. We do not know
what will happen if bidder "A" does a better job in meeting the
requirements of 508 but bidder "B" submits a proposal that is significantly
superior in other respects. In the event that no bid meets all contractual
specifications (including 508) the logical answer is to re-bid the
procurement, but agencies may be reluctant and bidders resistant
to doing this.
These and other questions, most of them not fully
answerable by reference to existing procurement law, are not necessarily
part of agencies' current accessibility efforts or thinking. They
will soon need to be.
E. Strategic Planning
Most of the planning issues described in Section D
are administrative or managerial. They do not rise to the level
of the strategic. A higher level of long-range and strategic planning
will also need to take account of 508 if it is to become part of
the fabric of agency practice and culture.
The Government Performance Results Act of 1993 (GPRA)
seeks to incorporate long-term planning and accountability into
Federal Government activities. GPRA does this by requiring agencies
to engage in a strategic planning process in which goals, objectives,
methods, and measures of accountability are set forth. Needless
to say, Section 508 is too new to have made its way into agencies'
GPRA plan filings, but the general absence of disability access
planning and criteria from most agencies' plans has recently led
the Presidential Task Force on Employment of Persons with Disabilities
to recommend that goals and objectives relating to the hiring of
people with disabilities be incorporated in GPRA plans.58
Following on these proposals, Chapter VI will suggest
ways in which accessible E&IT and its use can likewise be factored
into the GPRA plans of all the major agencies enforcing the ADA,
Section 255, and Section 508. While the issues surrounding E&IT
accessibility may at first glance seem too insular or limited to
warrant elevation to such visibility and prominence, the emphasis
placed on technology generally by most federal agencies requires
that this key element of technology policy receive equal and coordinated
attention.
In oral comments to NCD on the first draft of this
report, DOJ noted that long-term planning is built into the Section
508 self-evaluation process it administers. While this may be true,
the level of accountability inherent in GPRA plans makes them a
highly appropriate vehicle for institutionalizing E&IT access
policies. GPRA plans are revised periodically through an established
process involving broad-based consultation and consensus building
within agencies. Inclusion of E&IT accessibility in such plans
therefore would be an important adjunct to the planning efforts
conducted around agency Section 508 self-evaluations.
F. Federal Grants and Contracts for the Performance
of Work or Provision of Services
In previous sections we have discussed federal contracts
for the procurement of goods and services by the government. But
another kind of federal contract (utilizing federal funds for performing
work or providing services to specified members of the public or
nongovernmental entities) also plays a part in this story. Currently,
the government funds many programs ranging from library services
to one-stop employment centers to Medicare, through grants to or
contracts with various state, local, private not-for-profit, and
for-profit entities. To the degree that the entities receiving and
spending these public funds meet the law's definition of recipients
of federal financial assistance, they are subject to the requirements
of Section 504, as well as to the requirements of many other federal
laws. The advent of Section 508 raises new and pressing questions
about the extent to which contractors, grantees, or other recipients
of federal funds will be subject to its requirements.
The Section 508 Final Rule indicates that federal
contractors are not covered by the law when their use of E&IT
is "incidental" to the performance of a contract.59
This means that if a private entity is contracted to create or manage
a federal Web site, Section 508 has no concern for the equipment
the firm uses in-house to accomplish its responsibilities. But 508
is very much concerned with whether the Web site complies with the
requirements of the law, if the Web site is provided for the use
of Federal employees or for the provision of federally generated
or federally sponsored information to the public.
The government utilizes outside entities to provide
an increasing array of information and services to the public. Indeed,
the philosophy known as "privatization" largely involves substituting
private sector contractors for government agencies as the providers
of federally funded services. The use of managed care organizations
to provide health care services under Medicare and Medicaid is perhaps
the best-known example of such privatization. Depending on one's
point of view, contracts for providing services may or may not be
viewed as contracts that have provision of information or provision
of access to E&IT as part of their purpose.
A managed care organization providing insurance coverage
under something like the Medicare Plus Choice (M+C) program
is probably subject to the requirements of Section 504, according
to the weight of case law interpreting the term "federal financial
assistance."60 To the degree that
M+C contractors are required to make specific information about
the program available to enrollees, Section 504 should require that
this information be made accessible to those with disabilities.
It is one thing if this required information is made available only
in hardcopy, but what if the health maintenance organization (HMO)
uses or is required to use Web sites, toll-free telephone lines,
or other E&IT in disseminating the information? Does the use
of E&IT in such a situation subject its information-dissemination
activities to the E&IT accessibility requirements of Section
508, and does it matter whether the use of E&IT is mandated
by the contract or simply results from the decision of the contractor?
With one exception for states receiving federal funds
under Title I of the Assistive Technology Act of 1998, states are
not covered by Section 508.61 But
what happens with state agencies such as employment development
or labor departments that receive federal funds for the operation
of one-stop centers under the Workforce Investment Act? Are these
otherwise exempt state agencies transformed into covered federal
contractors/grantees by virtue of this relationship? And if so,
are they under any broad obligation to comply with Section 508?
One-stop centers make extensive use of E&IT, including
online resources for use in looking up relevant databases and for
posting resumes, job descriptions, and other information. Such one-stop
centers could hardly operate as they do without the use of E&IT.
Answers to these questions go well beyond the scope
of this study. Let us rest content for the moment to say that if
the federal program or request for proposal necessarily contemplates
or specifically calls for the use of E&IT by members of the
public in accessing federally sponsored programs or information,
or if the recipient of the federal funds undertakes in its proposal
to use such technology, then the better reasoning suggests that
508's requirements would apply. But in all such cases, the entity
receiving the federal funds would also be subject to the requirements
of Section 504, in which case information accessibility requirements
also come into play.
Every federal agency entering into contracts with
outside entities should bear in mind that the contracting process
affords a valuable opportunity to remind their partners of their
information- and E&IT-accessibility obligations under federal
law. While no systematic data are available, discussions with a
number of observers reveal a widespread sense that federal agencies
have not exercised their authority to use the contracting and funding
processes as a means for leveraging heightened E&IT accessibility.
More generally, implementation of the E&IT access potential
of all the civil rights statutes is inevitably compromised by the
apparent failure thus far of the federal government to develop a
consistent approach or philosophy about how the contract and funding
processes should be used to advance information access rights of
people with disabilities.
All agencies are sensitive to the charge of overbearing
federal bureaucracy imposing its agendas on the nation in the guise
of law. In such a climate, few agencies are likely to take the risk
in isolation of aggressively using the contract process, even where
the legality of doing so is not in serious dispute. How much additional
leverage for accessibility could be gained by coordinated use of
the contracting power cannot be known, but any opportunity not taken
is an opportunity lost.
Numerous models exist for using the power of contractual
relationships for encouraging or compelling E&IT accessibility.
An insight into several of these models was contained in the October
1997 letter from the U.S. Secretary of Education to public school
officials across the country, reminding them of their responsibilities
under a number of educational assistance programs aimed at enhancing
school technology. This reminder directed their attention to the
need to make new E&IT accessible and provided information about
resources to which they could turn.
Depending on the law under which funds are appropriated,
the agency involved, and the particular accessibility laws to be
enforced, numerous contractual approaches are potentially available.
Beginning with general notices like the Department of Education's,
one can move up the scale to
- Specific notices in contract documents reminding
recipients of their obligations;
- Certification requirements (such as those required
by the National Institute on Disability and Rehabilitation Research
from states as a condition for the receipt of Assistive Technology
Act funds);
- Inclusion of accessibility-related evaluation criteria
among the factors used to rate proposals for discretionary funds;
and
- Inclusion in contracts of specific performance
requirements relating to implementation and documentation of E&IT
accessibility measures.
By way of extension of the self-evaluation concept,
we will recommend that each federal agency that dispenses funds
or administers federal-state programs conduct a review of its legal
authority and of the extent to which the contract process is being
used to serve relevant accessibility goals. Yet in light of the
relative failure of agencies to adopt this technique of E&IT
civil rights enforcement so far, the critical role of government-wide
initiatives in any such process is powerfully evident.
The e-rate is one area where the ability or the wisdom
of the Federal Government's use of the contract power to advance
the cause of E&IT accessibility has at least been discussed.
Established under the Telecommunications Act of 1996, the "e-rate"
is a program using fees collected by telephone companies from subscribers
to subsidize the costs of Internet access and related communications
enhancements for schools and libraries. Owing to a number of factors
(including the legal authority of the FCC to impose conditions on
the use of e-rate funds) and owing to the unusual status of these
funds as not wholly public or private, a consensus seems to exist
among those who have studied the matter that at least a rulemaking
proceeding would be required before specific contract performance
requirements concerning E&IT access can be mandated. Short of
such a mandate, though, it has proved possible to advise funds recipients
of at least the expectations that follow the money. In the case
of the e-rate these expectations are that the E&IT resources
made available through the subsidy will be accessible to all potential
users.
Without guarantees for the accessibility of E&IT
used in schools, the growing reliance of our education system on
computers, multimedia curricular materials, and other forms of E&IT
is likely to result in increasing disparity and disadvantage for
students with disabilities. The lifelong implications of such educational
disadvantage are surely evident to all. We would hardly think of
building a new school that is inaccessible to students with mobility
disabilities, but we seem slower to recognize the parallels for
the many students with disabilities bearing on information access.
The FCC has recently issued two NPRMs modifying rules
of the e-rate program.62 While
these have nothing to do with E&IT, their use suggests that
such a rulemaking strategy does represent a viable approach for
improving the operation of this program.
Chapter
V Findings
A. The Role of Leadership
1. Agency Variation
The National Council on Disability's study of the
Americans with Disabilities Act (ADA) disclosed remarkable variation
among agencies, sometimes even between the components of the same
agency, in how and how well enforcement of the law was approached.
In each major agency with ADA enforcement responsibility, the study
was able to point to components that enforced the law effectively
and others that did a less creditable job.
Many factors go into analysis of how a major multi-agency
law is enforced. Features of the law itself, characteristics of
the enforcement agencies, budgetary considerations, record-keeping
practices, and other factors inevitably play a role. Another factor
shown by the ADA study to play an important role was the attitude
of each agency toward the law and its purposes and enforcement.
Any attempt to describe or account for the relative
success or failure of diverse agencies in implementing pro-accessibility
electronic and information technology (E&IT) policies requires
consideration of all these variables. But because E&IT access
efforts have thus far been carried out under a minimal institutional
and legal framework, such an analysis requires more.
2. Filling the Vacuum
Despite the general lack of attention to information
access and E&IT on the part of civil rights enforcement agencies
in particular and the government in general, a number of federal
agencies and agency components can be cited for their efforts and
achievements on behalf of E&IT accessibility over recent years.
For the most part, these efforts and initiatives have not generally
been perceived as resulting from the mandate of any law. Rather,
they have been discretionary in nature, representing some of the
most progressive and enlightened expressions of policy and purpose
in the government, but also going well beyond what the law has been
deemed to require.
The government can certainly be faulted for not developing
broad-based information access policy or infrastructure during the
1990s. The provisions of the ADA, the requirements of Section 504,
and the scope of discretionary authority within the executive branch
all presented tremendous opportunities for doing so that were never
realized. Moreover, because the government has been deeply engaged
in E&IT policy issues over the past several years, its failure
to make accessibility an organic part of this process is all the
more regrettable. Yet precisely because of this government-wide
inaction, the strides made by individual agencies are all the more
remarkable and worthy of attention both as models of good practice
and for the insights they yield into how positive policy change
can be effected from within.
Any attempt to list all the agencies that have taken
steps to enhance E&IT accessibility is impossible and doomed
to regrettable omissions. Yet the achievements of several agencies
are worthy of particular notice.
- The Department of Education for its Assistive Technology
Team and its model accessibility procurement contract language.
The Assistive Technology Team (among other things) reviews proposed
software and other E&IT applications for accessibility as
part of the procurement and development process. It also serves
as a technical assistance (TA) and training resource on accessibility
issues within its own agency and for other agencies of the government.
The department's model contract language, which was disseminated
by the Department of Justice (DOJ) in its April 2000 report for
use by other agencies, provides a straightforward and replicable
approach to requesting and obtaining accessible E&IT.
- The Department of Defense for its Computer/Electronic
Accommodations Program (CAP).
CAP provides TA throughout the department to identify and evaluate
technology for meeting employees' accommodation needs.
- The U.S. Mint for its early modeling of Web site
accessibility.
- The Internal Revenue Service and the Social Security
Administration for investment in accessibility technology and
training enabling a significant number of employees who were blind
to retain their positions in the face of E&IT infrastructure
changes that might otherwise have resulted in inability to continue
performing their work.
- DOJ for its leadership and monitoring role in implementation
of Section 508.
- The U.S. Architectural and Transportation Barriers
Compliance Board (Access Board) for operationalizing E&IT
accessibility concepts and for pioneering use of consumer-industry-government
panels.
The Access Board developed performance and functional standards
and guidelines necessary for implementation of both Sections 255
and 508.
Through its innovative use of government-consumer-industry panels,
the Board modeled cooperative methods among government agencies
and between the public and private sector for bringing these difficult
and controversial rules to fruition.
- The Federal Communications Commission (FCC) for
its leadership in telecommunications access and strong consumer
outreach.
Through its jurisdiction over implementation of Section 255 and
its efforts on behalf of closed captioning and video description,
the FCC has become a prominent advocate for telecommunications
and other E&IT access. The Commission also has endeavored
to institutionalize input from the disability community by the
creation of a consumer advisory committee.
- The Equal Employment Opportunity Commission for
its strong and sophisticated statement of principle regarding
its Web accessibility policies.
- The General Services Administration (GSA) for spearheading
executive branch implementation of Section 508 and for providing
and funding TA.
GSA plays a central role in the implementation of Section 508
through the Federal Acquisition Regulation and through its management
of TA resources. But for many years before any E&IT access
was mandated, GSA took the lead in providing TA under the two
earlier versions of Section 508.
Other agencies will in time be added to this roster, but the context
of their efforts will be materially different. For while they
will always have the option to do the minimum the law requires
or to venture further, they will be operating in an environment
of expectation where support and rewards for achieving E&IT
accessibility will become part of the routine context of their
work.
3. Keys to Success
Whatever may have been the nominal mandate of the
law, the agencies that took action through most of the 1990s were
working in an environment where their successes or failures had
far fewer legal repercussions than will be the case henceforth.
What accounts for the things they accomplished and how can the lessons
of those accomplishments be applied in the changing legal and normative
context of the E&IT accessibility era?
Contrary to initial supposition, agency mission does
not appear to have been a significant predictor of commitment to
the accessibility concept. Indeed, enthusiasm for E&IT access
has not been apparent either in the internal arrangements or in
the outreach activities of many of the federal agencies with specific
responsibility in the disability programs area. Nor is it even clear
that expertise on accessibility is concentrated in these agencies.
Our research, particularly our interviews with agency
personnel, technology users, advocates, and observers of the governmental
scene, strongly points to the conclusion that leadership within
agencies, more than any other single factor, primarily accounts
for their embrace of E&IT accessibility and for success in achieving
it. The names of agencies are invariably joined with the names of
specific individuals that come up again and again in discussions
of history of accessibility with people who have witnessed or participated
in it.
This leadership has taken different forms in different
agencies, but in all cases seems to have involved the translation
of life experience or personal commitments into sustained efforts
in the workplace: efforts aimed at capacity-building, establishing
the credibility of accessibility efforts, demonstrating the viability
of proposed solutions, and creating institutional supports for accessibility
efforts.
4. Institutionalizing the Gains
One issue running through many of our discussions
concerns how personal commitment and individual leadership can be
parlayed into durable policy and institutional change. In the agencies
cited above, accessibility concerns have been institutionalized
to varying degrees. Such institutional arrangements and structures
include establishing procedures for in-house review of software
proposed for purchase by the agency, developing procedures for reviewing
employees' reasonable accommodation needs for technology, or implementing
procedures for producing documents in alternative formats or for
accessible Web postings, or through a variety of other means. These
internal rules and formal procedures are not self-executing or wholly
autonomous, though. Without people dedicated to their perpetuation
and success, we have no certainty these practices would endure.
No agency can be regarded as having made a smooth
transition in everything related to E&IT access. This is not
surprising because large federal agencies, and especially Cabinet
departments, are anything but monolithic. The same Department of
Education that has been in the forefront of providing internal access
to its staff is also subject to criticism for having done little
through Section 504, the ADA, or its contracting power to ensure
that the "wiring" of America's schools (much of it with federal
seed money) is done in a way that guarantees information access
equality to all students.
In our interviews, the sense that the struggle for
accessibility is ongoing and subject to gains and losses emerged
as a recurring subtext. Internal political considerations, orientation
of new managers, and constant outreach to others in the agency aimed
at maintaining visibility and credibility all appear as recurring
elements in the access process. Political adroitness--that most
intangible of qualities--has played a significant role in the success
of accessibility efforts and advocacy. Timing and what can only
be called luck have played their parts as well.
At the dawn of a new phase in the struggle for E&IT
accessibility, a key question is whether the procedures would remain
effective or the gains survive if their advocates disappeared. In
some agencies, E&IT accessibility has been woven into the fabric
of agency life sufficiently to withstand such a contingency. In
other agencies continuity may be less certain.
Certainly the odds are better than they have been
in the past. With the advent of Section 508 much greater institutionalization
of E&IT accessibility will occur. Such institutionalization
may in time reduce the need for individual leadership, but that
will not happen any time soon. For the foreseeable future, leadership
is still likely to make the difference between minimal, uninspired
technical compliance and efforts that go beyond. To the degree that
the necessary leadership can be identified and rewarded, the prospects
for full institutionalization of access will be materially increased
and significantly hastened.
In this connection, the installation of a new administration
offers occasion for creative renewal of the nation's commitment
to information equality. The recommendations made by NCD to the
presidential transition team contained important suggestions along
these lines.63 The President's
New Freedom Initiative reflects considerable awareness of the importance
of E&IT (such as computers) in the lives of people with disabilities.
The Administration's proposals have not yet focused on making the
information infrastructure fully accessible so that the computers
and other technology it hopes to provide can be put to their most
effective uses, but administration budget proposals include significant
sums for assistive technology research, which should contribute
to greater accessibility of E&IT.
Many of those now involved in accessibility efforts
are relatively new to this work, having been introduced to the subject
through the 508 implementation process. As exposure to the issues
and policy options surrounding accessibility increases, new leadership
is also likely to emerge in many settings.
B. Discrimination by Inadvertence
In his New Freedom Initiative, President Bush recently
reminded us that Americans with disabilities have far lower incomes
than other citizens.64 A host of
other reports and studies have documented comparable gaps in computer
use, Internet access, education, and of course employment. It is
a truism to say that a host of social and economic indicators follow
income, but when the incomes of individuals are to any degree predictable
as a function of their membership in identifiable demographic groups,
serious questions are inevitably raised.
Disagreements about the extent and seriousness of
this situation reflect different explanations of its causes. But
one cause few would dispute is unequal access to information, which
has led to unequal opportunity and limited participation in the
school, the workplace, and the community. Ultimately, those who
cannot access or use our nation's E&IT infrastructure are deprived
of access to more and more of the information that is fast becoming
the currency of our society, the commodity of its commerce, and
the source of opportunity and achievement in all spheres of life.
Denial of access to this technology is tantamount to denial of access
to information itself.
With the role of technology in information access
and use steadily increasing, the conclusion is unmistakable that
those restricted in their access to and use of E&IT will be
destined for a quality of life and an economic and social role far
inferior to that which the average American considers a civil right,
if not a birthright. From the standpoint of those sentenced to inferiority,
it matters little whether the disparity is inadvertent or intentional.
Although technology and design have not yet come up
with all the answers to E&IT accessibility, they have developed,
tested, and refined a good many. Technology has created conditions
in which the failure to incorporate accessibility, if no longer
a matter of intention, is at least no longer inevitable either.
Today, when equipment designers, software developers, or webmasters
implement their devices and services, failure to include accessibility
is a matter of indifference or ignorance. At some level, such indifference
or ignorance becomes a matter of choice, and when it does, the line
of intentionality has been crossed.
There may be no hostility in the failure or refusal
to incorporate accessibility into product and services design. But
where the possibility for incorporation of such features exists
but is not pursued, some measure of responsibility must be accepted.
C. The Use and Misuse of Economics
Through civil rights laws, society has imposed what
are regarded as reasonable accessibility requirements on government
and the private sector. But these new rights and obligations have
been defined and enforced in ways that depart significantly from
the traditional civil rights model.
Traditional civil rights laws have never regarded
cost as a defense or an excuse for noncompliance. Imagine how little
patience society or the courts would have with the claim of a large
national restaurant chain that hiring people from diverse cultural
backgrounds was infeasible because training its employees in diversity
or monitoring their conduct toward coworkers and customers would
be too costly. Yet, the exceptions and defenses provided in our
E&IT accessibility civil rights laws do essentially that by
excusing noncompliance when it would represent an undue cost.
Such economic defenses reflect a balancing test new
to our civil rights canon. The notion that accessibility should
not be required if it is too costly is also remarkable for being
posed in isolation from the related question of how much inaccessibility
itself costs. If a cost-benefit balancing test is going to be used,
the considerations being balanced ought to include the costs of
access versus those of its absence. Regrettably, neither existing
law nor available research methodologies will readily permit this.
Determinations of undue cost burden arise from accessibility demands
placed on particular entities or individuals while the costs of
inaccessibility are largely hidden and borne by all. So long as
the costs of accessibility are individualized but those of inaccessibility
remain collective, the dice will remain loaded in a way that no
law can fully redress.
The better question to ask, therefore, is how do the
costs of accessibility compare with those of inaccessibility, and
what represents the best strategy for allocating the costs of accessibility
in ways that reflect the benefits it confers on us all? In the final
analysis, one thing is very clear: whether we have broad-based accessibility
or not, someone will pay--the only question is who?
D. An Imperfect Legal Model
Our laws have imposed a variety of obligations on
business and government in the area of E&IT accessibility, but
these are neither comprehensive nor consistent. Using the three
civil rights laws we have been studying to illustrate this point,
we find a patchwork of laws that cover certain equipment and services
in some situations but not others, that utilize different economic
defenses, that apply to different entities in different ways depending
on whom they are dealing with, and that even define certain terms
such as "telecommunications equipment" in different ways.
The existence of this inconsistent and fragmented
patchwork of laws leads to the question whether we have a national
E&IT accessibility policy at all? The regrettable answer is
that we do not. We have certain narrow contexts in which accessibility
is required, but beyond the hope that ADA Sections 255 and 508 will
eventually filter down to the design of all E&IT, we have no
general policy favoring or supporting accessibility of E&IT.
Many factors account for this lack: attitudes about
regulation, fears about costs, residual doubts about the capacities
of people with disabilities, and agency jurisdictional lines that
are not conducive to coordinated policy, to name a few of the most
important. However, two factors appear to play a dominant role in
explaining why we have no broad-based national E&IT accessibility
policy. First, we have had no real national discussion about how
much universal E&IT accessibility would really cost, and hence,
we have reached no consensus about how such costs should be allocated.
Second, we have had no means for identifying or dramatizing the
real costs of inaccessibility for the millions of individuals it
affects or for our society as a whole.
As indicated in the previous section, our current
civil rights laws allocate the costs of E&IT accessibility on
a case-by-case basis, looking no further than the particular manufacturer,
service provider, or public accommodation being asked to provide
a given service, or the individual federal agency contemplating
its purchase.
Imagine what might have happened (or not happened)
if we had implemented the national transportation policy of the
interstate highway system through a funding formula that made individual
drivers responsible for paying each time they drove, but exempted
them from payment obligations if, according to some subjective or
objective standard, they considered the costs too high.
The history of "universal service," which has been
the central concept underlying telecommunications policy in this
country, will further help make this case. Beginning with the passage
of the Communications Act of 1934, our nation implemented a policy
favoring universal access to basic telephone service for all Americans.
This meant that despite variations in the cost of providing such
service between urban and rural areas, virtually all Americans (at
least those who could do so with widely available mainstream equipment)
could expect to have basic phone service at a reasonable monthly
cost.
Although this system has come under increasing stress
in recent years, it worked well for a very long time. But could
it have worked without a national approach involving public-private
partnerships to meet and allocate the costs of universal access?
Could it have worked if, instead of devising a national strategy,
we had remained preoccupied with the question of whether a particular
phone company could or could not afford to string the wires to this
town or to that farm or high-rise?
Our sense of the proper role of government has changed,
and the complexity of the issues and interests involved is greater.
But the point is clear that our approach to E&IT accessibility
until now has not begun to make use of all available, historically
proven strategies for bringing about greater universality and accessibility
in E&IT design.
Lest it be supposed that such a goal can be achieved
only by coercive measures, the means by which public policy has
embraced and fostered the use of E&IT generally should be kept
in mind. Taken together, the combination of means adopted in recent
years to guide and promote the deployment and use of E&IT constitute
a national E&IT policy even if no one has dared to invoke that
term. Ranging from government funding of innovative research and
practices in the E&IT field, to public investment in school
computerization, to encouragement by a variety of tax-related and
other means of private sector investment in technology, to the provision
of leadership and marshaling of resources in various areas of E&IT
development, to the preemption of state taxation of e-commerce,
to the endorsement of standards-setting efforts aimed at ensuring
interoperability of the communications system, to the active pursuit
of a well-developed information strategy by the Federal Government--through
all these means and more, we have articulated and implemented a
national policy favoring the deployment and use of E&IT. But
not for people with disabilities.
E. Responsiveness of the Marketplace
Without strong, sustained, coordinated federal leadership
(detailed in Chapter VI) in creating the conditions, incentives,
and partnership opportunities necessary to make E&IT access
a consensus value in our society, the marketplace alone is unlikely
to take on the risk or the responsibility of going beyond "user-friendly"
to accessible product design. Indeed, under current market conditions,
companies that make extensive efforts to implement accessibility
in highly competitive product lines may actually be penalized for
their efforts, because the upfront costs associated with such efforts
may put them at a real or perceived short-term price or profit disadvantage
vis-a-vis their competitors.
That the E&IT marketplace cannot be expected to
act on its own, given the current structure of the market, is also
suggested by another analogy to physical accessibility. An individual
who cannot enter or find accessible seating in a movie theater will
either not go to the movies or attend them somewhere else. While
the theater owner may not consider the loss of business from that
individual and her family and friends worth worrying about, the
loss of business is nevertheless real. But by contrast, there is
no evidence to suggest that people with disabilities or their families
and friends refrain from buying or using E&IT because it is
inaccessible. Rather, as experience and innumerable conversations
indicate, they buy what is available (precisely because it is all
that is available) and make the best use of it they can, often asking
others for help, frequently obtaining only a small part of the functional
capabilities for which they paid.
For example, a blind person who enters a building
with an inaccessible electronic directory has no option other than
to use that directory. She may have to wait--perhaps a considerable
time--for someone--very likely a stranger--to pass by so that assistance
can be requested. She may have to reveal to the stranger that she
is looking for Dr. So-And-So (whose specialty may be embarrassing)
or for Attorney Smith's office (whose specialty of bankruptcy is
proudly proclaimed in the directory next to her suite number).
In this day and age, a large firm building a new headquarters
would have ample opportunity to make the building accessible to
its employees and visitors with physical disabilities. All else
being equal, it would not choose to occupy an inaccessible building.
But that same firm routinely buys computer and telecommunications
systems that are inaccessible to some of its employees. It does
so largely because such systems are all that exist and the need
for a system transcends all other considerations. From the perspective
of the equipment manufacturer, though, the inaccessibility has led
to no loss of business.
If people with disabilities and their friends, families,
and employers did, or could, withhold their business from inaccessible
E&IT providers (as the government will soon do), the potential
of the marketplace to meet their concerns might be harnessed effectively.
In the absence of any realistic means for them to do so, and in
the absence of any mechanism for reducing their E&IT costs commensurate
with the performance and features that are inaccessible to them,
the industry is under no economic pressure to change.
F. Emerging Trends
1. The Definition of E&IT
Even as our nation prepares to implement Section 508,
the definition of E&IT used in this statute is becoming obsolete.
As networked and "smart" appliances become more widespread, the
line between traditional and new forms of E&IT becomes progressively
more blurred. Nothing in current law or policy addresses or even
recognizes the implications of these developments for the way we
live and the ways we think about and use information.
2. The Law
In an era when traditional distinctions between devices
and products are steadily being erased, established ideas about
what laws cover which subjects, what agencies have jurisdiction
to regulate which technologies, and what subjects are or are not
appropriate for regulation all require systematic rethinking. Today,
in the networked office or wired home, distinctions between the
telephone, television, and computer have effectively disappeared.
Yet as we have seen, E&IT accessibility policy continues to
operate on the basis of static definitions of specific devices and
services.
Other changes in law have profound implications for
the enforcement of even these increasingly inadequate current statutes.
For example, the Supreme Court's recent decision in Garrett v.
University of Alabama,65 by
blocking employment discrimination suits for money damages by individuals
against states under Title I of the ADA, increases the reliance
that people with disabilities seeking to vindicate E&IT access
rights under that law must place on the federal enforcement agencies--who
do retain the right to sue. On the basis of other recent decisions
of the Supreme Court, a significant likelihood exists that the right
to bring other kinds of Title I suits under the ADA, Title II suits
against states under the ADA, and even Section 504 suits against
state agencies may also be curtailed.
Moreover, where the possibility once existed for overturning
such decisions through the political process in Congress, the constitutional
rationale adopted by the Supreme Court in the succession of federalism
cases decided over the past five years strongly suggests that Congress
may no longer possess the authority to enact sweeping civil rights
laws or to respond to public dissatisfaction with Supreme Court
decisions. In such an unprecedented and complicated legal environment,
many of the advocacy strategies familiarly employed on behalf of
E&IT access or other civil rights goals will require reassessment
and modification.
Although no overall solutions exist to the complex
and interconnected problems identified in this report, major practical
steps are possible that would greatly improve the accessibility
of our nation's E&IT networks. In our final chapter, we will
discuss some of those solutions that our research and inquiries
most strongly support.
Chapter
VI Recommendations
This chapter makes recommendations for the establishment
and implementation of a national policy for accessibility of electronic
and information technology (E&IT) in all sectors of American
life. Short of such a national policy, it makes recommendations
for how existing laws and policies that provide for accessibility
in a narrower range of settings can be effectively implemented and
more fully realized.
Recommendation 1
Incorporate E&IT Accessibility into the Agency
Planning and Government-Wide Planning Processes at All Levels
1.1 By presidential executive order, promulgate and
implement a national E&IT accessibility policy. The executive
order should incorporate the following categories of information
and action:
Explain the meaning of E&IT accessibility, making
clear the distinctions between the accessibility and usability of
mainstream E&IT devices and the ability of such devices to support
the use of assistive technology add-ons or peripherals, and making
clear that accessibility is preferred where available but that "interoperability"
with assistive technology is required where direct accessibility
is not achievable.
Document the role and importance of E&IT accessibility
in facilitating education, employment, independent living, and improved
quality of life.
Review the demographics of both aging and disability,
and summarize the potential benefits to society of broad E&IT
accessibility.
Summarize the current and foreseeable role of the
Federal Government in connection with all aspects of E&IT and
information policy in this country, including its role in funding
research, supporting technology transfer, organizing government-industry
partnerships and consortia, approving various kinds of E&IT
for purchase with federal funds in various program settings, and
analyzing the current authority of the executive branch to take
discretionary action to enhance the availability and use of accessible
E&IT.
Require each executive branch agency to fully review
all laws and programs it administers and all statutes under which
it operates to identify areas of law, regulation, or practice where
barriers exist to the use of accessible E&IT or where measures
could be taken to enhance the availability and use of accessible
E&IT.
Revitalize the Interagency Disability Coordinating
Council or create an appropriate new entity to marshal and provide
technical assistance (TA) for all agencies in conducting this review,
to receive periodic reports from these agencies at such intervals
as the executive order may direct, and to operationalize the recommendations
of the blue-ribbon commission discussed under recommendation 4.1
below.
1.2 GPRA
The Government Performance Results Act of 1993 (GPRA)
requires federal agencies to engage in detailed, accountable strategic
planning processes. Utilizing the opportunities afforded by GPRA,
all agencies with responsibility in the civil rights area (including
the large number of federal agencies that now have such responsibility
under Section 508) should be required to incorporate goals, objectives,
methods, and outcome criteria for development and use of accessible
E&IT in their GPRA plans.
The precise content of these GPRA E&IT accessibility
plans depends on the nature of each agency's work. At a minimum,
each element of agencies' planning for the use of E&IT should
include measures for ensuring the accessibility of such technology.
Agencies with responsibility for civil rights enforcement of an
external nature (that is, with responsibility for the practices
of contractors or with oversight responsibility for regulated entities)
should include in their plans the methods that will be used to monitor
the performance of these outside entities. All agencies should also
be expected to accept responsibility for implementation of accessibility
goals with respect to their internal resources and practices.
Effective compliance with Section 508 will of course
represent one major indicator of success, but incorporation of E&IT
accessibility planning in agencies' GPRA plans will strengthen and
institutionalize the self-evaluation and self-reporting processes
envisioned by the Department of Justice's biennial agency self-evaluation
questionnaire survey.
1.3 Information Policy and Information Management
Below the radar of strategic planning, agencies engage
in a variety of ongoing and operational goal-setting and planning
activities designed to develop and clarify their missions, to rationalize
managerial practices, and to provide continuity in their relationships
with and outreach to coordinate agencies and nonfederal entities.
Information policy and management are two of the most important
among these planning issues.
All information planning and E&IT policy development
should include and document due attention to the ways accessibility
considerations will be integrated into agency policies, practices,
and decisions. Appropriate guidance should be provided by the Office
of Management and Budget (OMB) concerning the means for documenting
this integration.
1.4 Government-Wide Information Planning
To the degree the Federal Government develops and
implements government-wide policies concerning the use of E&IT,
such policies and requirements must likewise provide for integration
of accessibility goals and standards into all activities and decision
making. Issues such as time lines, costs, confidentiality and privacy
of information, and uniformity of practices are among the subjects
in information management that raise accessibility concerns.
1.5 Federal Employee Training
Beyond the requirements of current law bearing on
such matters as closed captioning and video description of training
materials, and beyond the requirements of Section 508 concerning
accessible training manuals or other instructional materials, all
federal initiatives aimed at upgrading the skills of the federal
workforce should include provision for supplementary training and
resources in those cases where the use of assistive technology or
other factors alters or individualizes the training process for
employees with disabilities. Even the best training materials on
a new mainstream software program cannot fully address the details
of its use in conjunction with screen-reader, voice-input, or other
specialized access software. Failure to include provision for obtaining
and integrating the additionally necessary training resources that
may be required would result in frustration--despite compliance
with Section 508 in the procurement process.
1.6 Alternative Measures When E&IT Access Is Not
Possible
Agency strategic and operational plans should include
provisions for how information access will be facilitated and ensured
in those cases where accessible E&IT is not available. These
plans should ensure the existence, documentation, publicizing, and
sufficiency of such alternatives. The sufficiency of such alternatives
should be evaluated according to a three-prong test including timeliness,
completeness, and appropriateness to the nature of the information.
For example, complex strings of computer code should not be provided
orally to an employee who is blind under circumstances where the
data cannot be captured for close study and later retrieval. Likewise,
sensitive personnel information should not be conveyed to an employee
who is deaf by being penciled on a blackboard in the federal building
cafeteria.
Recommendation 2
Review the Federal Contracting Process to Encourage
Diffusion of Accessibility
2.1 Grants and Contracts
With appropriate guidance from the General Services
Administration (GSA), OMB, or other pertinent authorities, each
agency should review the entire range of contracts and grants under
which it administers and distributes federal funds to ensure that
all possibilities that the law allows for encouraging or requiring
E&IT accessibility practices on the part of contractors or grantees
are fully utilized. Such a review involves an assessment of agency
authority and practice not only under Section 508 but also under
Section 504, under the Americans with Disabilities Act (ADA), and
under the discretionary authority of agencies to establish priorities
and articulate evaluative criteria for competitive federal funding
awards. Such assessment also requires careful analysis of the particular
federal statute or program under which funds are being dispersed.
2.2 Model Contract Language
In order to prevent each agency from having to reinvent
the wheel in its grant making and contracting activities, the Federal
Government should develop model contract language for use in holding
federal funds recipients to the highest possible standards of accessibility
in their nonincidental use of E&IT.
2.3 Contractor and Grantee Technical Assistance
The government should ensure that all contracts subject
to accessibility requirements include provisions for availability
of appropriate TA to those called upon to meet accessibility expectations.
Such TA (already available to a number of relevant constituencies
under contracts let by GSA and the Access Board) should include
resources pertaining to Section 508 as well as information pertinent
to other sources of accessibility requirements.
Recommendation 3
Establish Federal Web Site Quality Control
3.1 Auditing Federal Web Sites
Assuming the accuracy of agency self-evaluations and
of Department of Justice (DOJ) aggregate conclusions regarding the
accessibility of federal Web sites, these self-evaluations will
be conducted only once every two years, while Web sites change and
can be updated almost daily. Individual agencies and DOJ should
develop a system for random periodic audit of Web sites to ensure
that standards of accessibility are being maintained. In the case
of larger agencies with numerous Web pages, quality control may
also involve developing new approaches to the oversight and management
of pages, while in the case of smaller agencies, informal means
may suffice.
3.2 Automate the Review Process
Identifying problems and implementing repairs are
the two components of Web site accessibility checking. While programs
and checklists exist for use in identifying accessibility problems
and for pointing the way to appropriate repairs, such repairs may
nevertheless be labor-intensive and may require the exercise of
judgment as to which of several strategies is best. After assessment
of all existing checklists, identification, and repair tools, and
pursuant to research on testing methods, the government should seek
to validate and deploy techniques for minimizing labor intensity
of Web site maintenance.
Recommendation 4
Systematically Address the Question of Cost-Effectiveness
Cost and cost-effectiveness are not the same thing.
Until the exigencies surrounding assessment of both are more fully
addressed than they have been to date, development of public policy
is likely to be hindered and delayed.
4.1 Presidential Commission
The President should appoint a national commission,
including representatives of industry, government, consumers, economists,
and demographers, to comprehensively study and report on the nature
of all costs and benefits associated with both accessibility and
inaccessibility. The commission should not necessarily be expected
to reach definite conclusions as to the scope and nature of all
costs and benefits, but it should set forth criteria, data collection
and research methodologies, and evaluation criteria for doing so
on a long-term basis after its work is completed. The matters to
be addressed by this Commission, during a charter life that should
be six months, should include the add-on costs to industry, government,
and consumers of broad-based accessibility in E&IT design; the
available alternatives for allocating such costs, including the
availability of dedicated revenue streams for accessibility research
and experimentation, tax subsidization, and other incentives; the
establishment of E&IT accessibility as a top priority in the
Federal Laboratory Consortium technology transfer programs; and
the extent to which the costs of 508 compliance research and development
should most appropriately be allocated between industry and government.
Following on the work of the Access Board in connection
with its 508 final rule, the commission should identify the potential
and demonstrable benefits of broad-based accessibility. The Access
Board made a start in creating the methodology for assessing the
benefits attributable to accessibility of federal E&IT, but
this work must be continued and the questions must be posed in relation
to the wider society. Such research, involving statistical extrapolation
and modeling, case studies, and trends analysis, should address
such matters as the number of people who might be expected to obtain,
retain, or advance in employment as a result of the routine availability
and use of accessible E⁢ the accommodations, early retirement,
worker compensation, and other cost savings that would accrue to
business through E&IT accessibility; the number of people who
might benefit in areas other than employment through the general
inclusion of accessibility in the nation's E⁢ the reduction
in public transfer payments for income support and personal assistance
that could result from broad-based E&IT accessibility; the increased
taxes that would be generated by heightened employment resulting
from accessibility; the potential spin-off benefits in terms of
new product development that might result from E&IT accessibility
research; the possible impact on the competitiveness in world markets
of U.S. firms if they were to assert a strong leadership position
in accessible design; and such other and related matters as the
commission may determine to be worth exploring.
The costs of inaccessibility are equally important.
In some cases they will be the flip side of the benefits of access,
but that is not their entire extent. Matters to be investigated
here include the potential role of E&IT accessibility in easing
worker shortages in certain skills areas, in reducing the need for
recourse to temporary workers from abroad, and in easing inflationary
wage pressures in the economy; the costs incurred by individuals
themselves, by government, and by the nonprofit sector in providing
services or assistance that would be reduced or rendered unnecessary
by accessibility of E⁢ the nature and scope of other opportunity
costs to individuals, government, and commerce associated with E&IT
inaccessibility; and the existing allocation of all the costs, direct
costs, and opportunity costs alike of inaccessibility in the E&IT
sector.
4.2 White House Conference
As a kickoff to the work of the national commission,
a White House summit on accessibility should be convened. This high-level
summit should bring together representatives of all the key sectors--business,
consumers, government, and researchers--to identify opportunities
for effective and innovative partnerships in accessibility policy,
planning, research, and implementation throughout our economy and
society.
Recommendation 5
Involve Consumers in the Accessibility Process
5.1 Consumer Advisory Panels
Subject to amendment of the law to allow members to
be fairly compensated for their time, and subject to availability
of a sufficient pool of people with the requisite knowledge and
skills, agencies should be encouraged to appoint consumer advisory
panels under the authority of the Federal Advisory Committee Act
to advise and assist them in their efforts to achieve E&IT accessibility
for themselves and for their constituencies. Such panels could identify
accessibility problems at an early stage; warn agencies about pitfalls
in the use of various technologies being contemplated for purchase;
assist in testing procured hardware and software for accessibility
before its acceptance; help agencies avoid 508 complaints by proactively
responding to procedural or substantive concerns; and advise agencies
on prospective measures that could improve the accessibility of
various types of E&IT. The Federal Communications Commission
(FCC) has recently established such a committee, and many agencies
have experience with citizen involvement around particular projects
or ongoing issues.
5.2 Consumer Support to Industry
The Federal Government, in partnership with the E&IT
industry, should investigate means for training, positioning, and
appropriately remunerating end-users with disabilities to assist
industry to develop effective accessibility strategies, to anticipate
access issues associated with new technologies or designs, and to
test and evaluate prototype devices and systems. End-users could
participate in customer focus groups, meet with design and engineering
staff, reflect community sentiments, serve as a sounding board,
and exert a profound and positive influence on the course and rate
of innovation and implementation.
Recommendation 6
Enrich the Available Resources for Implementation of
Section 508
6.1 Additional Guidance
As pointed out in Chapter III, many key issues bearing
heavily on the application and enforcement by individual federal
agencies of Section 508 remain unresolved. The regulations thus
far published to guide these agencies and the TA available to them
do not begin to answer key questions about: the meaning of "available
resources" under the undue burden exception, the relative weight
to be given to accessibility in evaluating competitive bids vis-a-vis
other contract requirements and performance criteria, the degree
to which research and development costs associated with contract
performance but not specifically procured in the contract can or
should be included in allowable costs, and a host of other, equally
critical matters.
GSA, the Access Board, OMB, and the Federal Acquisition
Regulations Council need to undertake urgent collaboration to identify
all such key implementation issues and provide meaningful guidance
so far as the law and their discretion permit. It is not as if these
issues can be avoided: With or without guidance they will be raised.
6.2 Undue Burden Auditing
A system for periodic auditing of agency undue burden
filings should be developed. Section 508 makes no provision for
the centralized collection, review, or availability to the public
of these filings, but it contains no restriction on the adoption
of such safeguards and checks either. A sufficient sample of such
filings should be reviewed procedurally and substantively to determine
both that the required documentation has been created and that the
documentation supports the conclusion. From a substantive standpoint,
the audits should also undertake to determine whether the conclusions
are accurate as they relate to one or more components of the system
or one or more of the requirements set forth in the applicable regulations.
Finally, the review would serve to identify agencies utilizing the
exception significantly more often, and to disclose differences
in the way the law is applied that may emanate from differences
in agency, culture, or management.
6.3 Verification of Agency Self-Evaluation Questionnaires
Apart from periodic review of the status of agency
Web pages, DOJ should develop a procedure for verifying agency self-reports
concerning their levels of and progress toward E&IT accessibility.
These reviews should be conducted throughout the year and should
include a large enough sample of agencies and subjects for results
to be statistically significant.
6.4 Compulsory Technical Assistance
Although TA denotes a voluntary process, procedures
should be developed for compelling agencies with prolonged and serious
508 compliance problems to accept TA targeted to their areas of
weakness. The Federal Executive Service, the Council of Chief Information
Officers, or existing TA contractors should be used when such interventions
are required.
6.5 Litigation Posture
DOJ should indicate how it will proceed in situations
where it is called on to defend a federal agency in court against
a suit brought under 508 where DOJ possesses independent knowledge
through the agency self-evaluation process or otherwise, that the
agency is out of compliance with Section 508. Federal agency officials,
potential complainants, and the courts need to know how the Department
proposes to handle such delicate situations.
6.6 Reduce the 508 Exemptions Granted for Intra-Federal-Agency
Contracts
A number of federal executive branch agencies contract
with the Government Printing Office (GPO) to manage their Web sites
or for performance of other E&IT-related services. As an "instrumentality"
of Congress, GPO is not currently subject to Section 508.
Federal agencies covered by Section 508 cannot evade
by contract the obligations they would bear if managing their Web
sites in-house. While GPO has expressed its intention to comply
with Section 508, it remains the responsibility of each executive
branch agency to make certain its Web sites comply with the law.
The relationship between covered and noncovered agencies exemplified
by these contracts between executive branch agencies and GPO poses
potential difficulties. DOJ should therefore clarify that when GPO
enters into contractual relationships that would subject it to the
requirements of Section 508 if it were not an exempt congressional
agency, GPO is required to comply with the requirements of Section
508 in its fulfillment of tasks under the contract or memorandum
of understanding.
Recommendation 7
Record-Keeping and Data Collection
With the implementation of Section 508, federal agencies
have a unique but short-lived opportunity to develop usable and
informative cross-agency databases and information resources. Section
508 imposes the same requirements on everyone, utilizes the same
nomenclature with every covered agency, and creates the prospect
for a new level of shared experience among agencies in civil rights
enforcement.
The opportunity for rationalizing informational categories
and data collection and sharing techniques Section 508 has created
should not be allowed to slip by.
Cumulative and comparative process information such
as number and disposition of complaints, number and nature of undue
burden filings, and number of employees or members of the public
utilizing accessible E&IT are among the important categories
of information that should be collected and aggregated. Qualitative
and outcomes research should also be possible in ways that the structure
of other civil rights laws have not previously made possible. Consistent
with applicable privacy, informed consent, paperwork reduction,
human subjects research, and other relevant considerations, efforts
should be immediately instituted to develop, field test, disseminate,
and analyze appropriate data collection and reporting instruments.
Recommendation 8
Statutory Review
In conjunction with or as an element of the work of
the commission proposed under Recommendation 4.1, the President
and Congress should establish a joint blue-ribbon commission (or
should designate an existing entity such as the National Council
on Disability) to examine barriers to effective implementation of
E&IT accessibility that may exist in current federal laws, and
to recommend changes in law that will foster E&IT accessibility
in the public and private sectors. Issues to be considered should
include requiring that all federal documents be made available in
machine-readable formats and clarifying the legality of such formats
for all purposes; requiring states to comply with Section 508 as
a condition for the receipt of federal funds under all disability-related
federal/state programs and under Medicaid; reviewing the Internal
Revenue Code to ensure that all existing business tax incentives
relating to research and development cover E&IT access-related
research; reviewing all federal grants and initiatives in the E&IT
area to ensure that accessibility is included in their scope and
priorities; reviewing the copyright law to identify possible incentives
for the use of machine-readable formats by publishers; reviewing
the antitrust laws to determine the need for changes that would
facilitate development of industry consortia around E&IT accessibility
research and product deployment; extending the jurisdiction of the
FCC, the Consumer Product Safety Commission, or other entities to
facilitate dialogue between industry and consumers regarding the
E&IT characteristics of traditionally stand-alone consumer and
home appliances; reviewing the rules governing the Medicaid and
State Children's Health Insurance Program to ensure that initiatives
such as those proceeding from the Olmstead case, which are designed
to enable as many persons as possible to avoid institutionalization
and live in the community, will include funding for E&IT accessibility
devices and training needed to maximize autonomy and self-care;
and reviewing the nomenclature used to describe E&IT under all
laws and programs so that confusion and inconsistency in the cross-agency,
cross-program use of terminology can be minimized or avoided.
Recommendation 9
Reinvigorate the Quality and Focus of ADA Enforcement
9.1 E-Commerce, Public Terminals, and the Internet
Through suitable regulations, interpretive guidance,
or case initiation, DOJ should take immediate and meaningful steps
to set forth its views concerning the applicability of Title III
to the Internet. Choosing between its own accessibility checklists,
the most up-to-date guidelines published by the World Wide Web Consortium
Web Accessibility Initiative, and the functional and performance
requirements embodied in the Access Board's 508 final rule, the
Department should promulgate its chosen standards for defining and
evaluating Web site accessibility so that its assertion of ADA jurisdiction
cannot be resisted by allegations of vagueness or imprecision.
DOJ should also promulgate standards and requirements
for the accessibility of public terminals including electronic building
directories, point-of-sale card readers, library terminals, and
similar devices.
9.2 EEOC
The Equal Employment Opportunity Commission (EEOC)
should update its TA and advisory materials for private sector employers
covered by Title I of the ADA to reflect the placing of a high priority
on E&IT accessibility, to explain the meaning and importance
of this concept in ways that clarify how it differs from and affects
the reasonable accommodation model, and to expand lists of organizational
and TA resources provided to employers so as to include entities
and programs that specialize in E&IT accessibility.
The EEOC should also issue a guidance on the interaction
between Sections 508 and 501, making clear that federal agency violation
of Section 508 will ordinarily be regarded as of high evidentiary
value in determining the validity of discrimination complaints by
federal employees against such agencies. The guidance should further
indicate under what if any circumstances violation by a federal
agency of Section 508 will constitute a per se violation of Section
501.
Recommendation 10
Intensify Monitoring and Enforcement Under Section
255
10.1 FCC Enforcement
The FCC should indicate what features and functions
of the forthcoming new generation of wireless telecommunications/customer
premises equipment (CPE) it regards as capable of being made fully
accessible under current conditions. It should be as specific as
possible in putting CPE manufacturers and vendors on notice concerning
its reasonable expectations in this area.
10.2 Remedies for Violation of Section 255
The FCC should issue a legal opinion concerning how
it would react and what position it would take if a consumer attempted
to bypass the Section 255 complaint process by bringing suit in
federal court for discrimination under the "common carrier" provisions
of the Federal Communications Act. End-users and industry alike
need to know the Commission's views concerning the availability
and propriety of such procedures, particularly if the Commission
does not intend to impose significant penalties or sanctions for
noncompliance with the law.
10.3 Market Monitoring Reports
In conjunction with the Access Board, the FCC should
institutionalize regular, periodic preparation and publication of
the telecommunications Market Monitoring Report. As a vehicle for
identifying product lines, services, or telecommunications industry
sectors where problems exist, these reports can be an invaluable
tool for guiding the deployment of TA and other resources. Particularly
if the FCC intends to minimize the use of the adversary process
as a means for bringing about progress in telecommunications accessibility,
continued use of these reports becomes all the more essential.
10.4 Definition of Covered Telecommunications Services
The FCC should formally indicate the results of its
inquiries and deliberations into the permissible scope of Section
255's coverage of telecommunications services. If the Commission
determines that it has the legal authority to include so-called
"information service" under the scope of Section 255's coverage
of telecommunications services, it should immediately proceed to
institute the rulemaking process needed to accomplish this clarification.
If, on the other hand, the Commission determines it
lacks legal authority to broaden the definition of telecommunications
services under Section 255 sufficiently to encompass these "information
services," it should join with consumer representatives and enlightened
industry leaders to propose remedial legislation to Congress. By
the same token, if the Commission determines that it does possess
the authority to broaden the definition but declines to exercise
its discretion to do so, industry and consumers need to know this
as well so they can begin considering options for legislative reform.
Conclusion
The convergence of technology, attitudes, demographics,
and law has created unprecedented opportunities for eliminating
one of the most significant sources of inequality in our society.
Although the precise details and the most appropriate allocation
of costs and benefits are not in all cases clear, the value and
wisdom of making E&IT accessible for all can hardly be disputed.
People of good will are working in partnership and committed to
overcoming the obstacles that can bring about advances which will
dramatically improve the future for all of us. The moment and the
means are at hand.
Endnotes
* Information technology (IT) is
known by various names in its application to the lives of people
with disabilities. Such terms as "adaptive equipment," "assistive
technology," and "electronic and information technology" all have
their place as subsets or as extensions of what we commonly think
of as E&IT. "Adaptive equipment," a general term with no specific
statutory definition, describes any sort of modification to technology,
including design changes or add-ons, that make it more accessible
to or usable by people with disabilities. Assistive technology (AT),
a statutory term deriving from the Technology-Related Assistance
for Individuals with Disabilities Act of 1988, includes both AT
devices and services. An AT device is any item or system "that is
used to increase, maintain, or improve functional capabilities of
individuals with disabilities." E&IT as defined in the implementing
regulations for Section 508 of the Rehabilitation Act is specific
to the communications and information environment and refers to
the broad range of hardware, software, and other components making
up this environment.
1 Promises
to Keep: A Decade of Federal Enforcement of the Americans with Disabilities
Act (2000); Back to School
on Civil Rights (2000); Enforcing the
Civil Rights of Air Travelers with Disabilities: Recommendations for
the Department of Transportation and Congress (1999). Washington,
DC. National Council on Disability. 2
The Technology-Related Assistance for Individuals with Disabilities
Act of 1988 P.L. 100-407, as amended by P.L. 103-218 of 1994, and
as revised by the Assistive Technology Act of 1998 P.L. 105-394
(see Sec. 3 (3)).
3 36 C.F.R. Sec. 1194.4.
4 2000 National Organization
on Disability /Harris Survey of Americans with Disabilities (National
Organization on Disability, 2000).
5 e.g., Executive Order
13035, as amended February 12, 2001.
6 Electronic and Information
Technology Accessibility Standards Economic Assessment, prepared
by the EOP Foundation (Access Board, November 2000) (currently available
at www.access-board.gov/sec508/assessment.htm).
7 P.L. 90-480 (1968).
8 The Rehabilitation
Act of 1973, P.L. 93-112.
9 P.L. 93-112, Sec. 504,
codified at 29 U.S.C. Sec. 794.
10 e.g., Nelson v.
Thornburgh, 567 F. Supp. 369 (E.D.Pa. 1983), aff'd, 732 F. 2d
147 (3d Cir. 1984), cert. denied, 469 U.S. 1188 (1985) (state required
to provide readers to blind employee).
11 P.L. 101-431 (1990).
12 P.L. 99-506, Sec.
603(a), as amended by P.L. 102-569, Sec. 509(a), as further amended
by P.L. 105-220, Sec. 408(b), codified at 29 U.S.C. Sec. 794d. The
statute has received additional minor amendments not discussed here,
including most recently by P.L. 106-246, Sec. 2405, which modified
the effective date for the right to file complaints under the act.
13 The Americans with
Disabilities Act of 1990, P.L. 101-336, codified at 42 U.S.C. Sec.
12101 et seq.
14 P.L. 104-104, Sec.
255, codified at 47 U.S.C. Sec. 255. Also the guidelines developed
by the Access Board and adopted by the Federal Communications Commission
to implement the statute, 36 C.F.R. Part 1193.
15 The Workforce
Investment Act of 1998, P.L. 105-220, Sec. 408(b), "Electronic and
Information Technology," codified at 29 U.S.C. Sec. 794d.
16 42 U.S.C. Secs. 12111 (9 and
10) and 12113.
17 Terrell v. USAIR,
132 F. 3d 621 (11th Cir. 1998) (denial of access to modified keyboard
not a violation where employee not required to type in its absence).
18 Kiel v. Select
Artificials Inc., 169 F. 3d 1131 (8th Cir.), cert. denied, 120
S. Ct. 59 (1999) (employer who restructured job to eliminate use
of telephone did not violate reasonable accommodation obligation
by refusing to furnish teletypewriter).
19 28 C.F.R. Sec. 35.104;
also Sec. 35.160.
20 Carr et al. v.
Kolodney et al. (Cause No. C96-5065RJB W.D. Wash. 1998) (case
dismissed August 12, 1998, without decision on the merits after
state withdrew plans to implement kiosk system).
21 28 C.F.R. Sec. 35.105.
22 These finding letters
are collected on the Project EASI Web site at www.rit.edu/~easi/law.htm#case.
23 Letter of Findings,
CSU Long Beach, April 20, 1999 (USDOE OCR Docket No. 09-99-2041).
24 28 C.F.R. Sec. 36.303.
25 42 U.S.C. Sec. 12181
(7).
26 e.g., Parker v.
Metropolitan Life Ins. Co., 121 F. 3d 1006 (6th Cir. 1997).
27 e.g., McNeil v.
Time Ins. Co., 205 F. 3d 179 (5th Cir. 2000) (insurance companies'
practices as well as their physical location covered by Title III);
Carparts Distribution Center Inc. v. Automotive Wholesalers'
Assn., 37 F. 3d 12 (First Cir. 1994).
28 e.g., Smith-Barney
settlement (1995).
29 Letter of September
9, 1996 (US DOJ ADA Core Policy Letter 204; currently available
at www.usdoj.gov/crt/foia/cltr204.txt).
30 Hooks v. OKBridge
(U.S. Court of Appeals 5th Cir., Docket No. 99-50891).
31 The Hooks case was
decided with an unpublished opinion, issued by the court August
21, 2000.
32 36 C.F.R. Part 1194.
33 e.g., Fleet Bank
press release of February 28, 2001 and also Bank of America press
release and agreement (issued May 26, 2000); also U.S. Bank Installs
Minnesota's First Voice-Guided ATMs for Visually Impaired, by Karen
Mills (Associated Press dispatch, August 21, 2000); also Wells-Fargo
press release of April 19, 2000, with talking ATMs announced as
up and running in California).
34 255, Access by Persons
with Disabilities, 47 U.S.C. Sec. 255.
35 FCC Notice of Inquiry
(adopted July 14, 1999, Docket No. WT 96-198); also generally, FCC
Report on High Speed and Advanced Telecommunications (August 3,
2000).
36 Preamble to 36 C.F.R.
Part 1194 (particularly para. 77).
37 Sec. 508 (f)(2).
38 Assessing Egovernment:
Internet Service Delivery by State and Federal Government: Egovernment,
the Internet, Democracy and Service Delivery by State and Federal
Governments, by Darrell M. West (Brown University, 2000).
39 www.eeoc.gov/style/about.html
40 Falling Through the
Net: Toward Digital Inclusion (U.S. Department of Commerce 2000).
41 28 CFR Secs. 35.104,
35.160, and 36.303.
42 Revision of ADA and
Architectural Barriers Act Accessibility Guidelines (currently available
at www.access-board.gov/ada-aba/status.htm).
43 Studies of the applicability
of the ADA to the Internet include ADA and the Internet: Must Websites
Be Accessible?, by Dana Whitehead McKee and Deborah T. Fleischaker,
33 Md. B.J. 34 (2000); also Applying the ADA to the Internet: A
Web Accessibility Standard, by Cynthia D. Waddell (1998) (currently
available at www.icdri.org/applying_the_ada_to_the_internet.htm).
44 Information Technology
and People with Disabilities: The Current State of Federal Accessibility,
presented by the Attorney General to the President, April 2000 (includes
findings based on the Department's use of its own Web accessibility
checklist to assess the performance of other federal agencies).
45 Reasonable
Accommodation Information Reporting Form (currently available at
www.eeoc.gov/docs/eeocprocedures-form3.html).
46 EEOC Enforcement
Guidance: Reasonable Accommodation and Undue Hardship under the
Americans with Disabilities Act (March 1, 1999) (currently available
at www.eeoc.gov/docs/accommodation.html).
Policy Guide on EO 13164: Establishing Procedures to Facilitate
the Provision of Reasonable Accommodations (October 20, 2000) (currently
available at www.eeoc.gov/docs/accommodation_procedures.html).
47 P.L. 102-569; 20
U.S.C. Sec. 1401 (1).
48 Policy Guide on Executive
Order 13164: Establishing Procedures to Facilitate the Provision
of Reasonable Accommodations (October 20, 2000) (currently available
at www.eeoc.gov/docs/accommodation_procedures.html).
49 66 FR 7165-68 (January
22, 2001) (proposed rule); - Federal Register - (April 25, 2001,
FAR Case No. 1999607) (for final rule).
50 Sec. 508 (d).
51 Sec. 508 (c).
52 see note 4.7, supra.
53 Section 508 Self-evaluation
Questionnaire for Designated Agency Officials.
54 Access Board and
Federal Communications Commission, Market Monitoring Report on Accessible
Telecommunications (currently available at www.access-board.gov/telecomm/marketrep/index.htm).
55 Strategic Plan (currently
available at www.eeoc.gov/plan/single.html).
56 Sec. 508 (f)(2).
Paragraph (3) explains the rules governing civil actions in court
under 508.
57 Sec. 508 (a)(1)(A).
58 Re-charting The Course:
Turning Points: The Third Report of the Presidential Task Force
on Employment of Adults with Disabilities (presented to the President,
December 2000).
59 36 C.F.R. Sec. 1194.3
(b).
60 e.g., Zamora-Quezada
v. HealthTexas, Medical Group of San Antonio, 34 F. Supp. 2d
433 (W.D. Tex. 1998) (receipt of Medicare funds by HMO made its
operations subject to Rehabilitation Act); Dorer v. Quest Diagnostics
Inc. (laboratory that received federal funds covered by law)
20 F. Supp. 2d 898 (D. Md 1998); Sharrow v. Bailey, 910 F.
Supp. 187 (MD PA 1995).
61 This one instance
of application of the provisions of Section 508 to states, as a
condition for the receipt of federal funds, appears to derive from
an Education Department interpretation of the Rehabilitation Act
and the Assistive Technology (AT) Act together. It has been embodied
in at least two letters from officials of the National Institute
on Disability and Rehabilitation Research, which administers AT
Act funds, but has not been formalized in regulations.
62 www.fcc.gov/Bureaus/Common_Carrier/Notices/2001/fcc01143.txt.
63 Investing in
Independence: Transition Recommendations for President George W. Bush
(National Council on Disability, January 2001) (currently available
at www.ncd.gov/newsroom/publications/bush.htm).
64 Fulfilling
America's Promise to Americans With Disabilities, Foreword by President
George W. Bush, To the President's New Freedoms Initiative (currently
available at www.whitehouse.gov/news/freedominitiative/freedominitiative.html).
65 Garrett v. Board
of Trustees of the University of Alabama, - U.S. - (2001) (currently
available at www.nls.org/courts/supct.htm).
Appendix
Mission of the National Council on Disability
Overview and Purpose
The National Council on Disability (NCD) is an independent
federal agency with 15 members appointed by the President of the
United States and confirmed by the U.S. Senate. The overall purpose
of NCD is to promote policies, programs, practices, and procedures
that guarantee equal opportunity for all individuals with disabilities,
regardless of the nature or significance of the disability; and
to empower individuals with disabilities to achieve economic self-sufficiency,
independent living, and inclusion and integration into all aspects
of society.
Specific Duties
The current statutory mandate of NCD includes the
following:
- Reviewing and evaluating, on a continuing basis,
policies, programs, practices, and procedures concerning individuals
with disabilities conducted or assisted by federal departments
and agencies, including programs established or assisted under
the Rehabilitation Act of 1973, as amended, or under the Developmental
Disabilities Assistance and Bill of Rights Act; as well as all
statutes and regulations pertaining to federal programs that assist
such individuals with disabilities, in order to assess the effectiveness
of such policies, programs, practices, procedures, statutes, and
regulations in meeting the needs of individuals with disabilities.
- Reviewing and evaluating, on a continuing basis,
new and emerging disability policy issues affecting individuals
with disabilities at the federal, state, and local levels and
in the private sector, including the need for and coordination
of adult services, access to personal assistance services, school
reform efforts and the impact of such efforts on individuals with
disabilities, access to health care, and policies that act as
disincentives for individuals to seek and retain employment.
- Making recommendations to the President, Congress,
the Secretary of Education, the director of the National Institute
on Disability and Rehabilitation Research, and other officials
of federal agencies about ways to better promote equal opportunity,
economic self-sufficiency, independent living, and inclusion and
integration into all aspects of society for Americans with disabilities.
- Providing Congress, on a continuing basis, with
advice, recommendations, legislative proposals, and any additional
information that NCD or Congress deems appropriate.
- Gathering information about the implementation,
effectiveness, and impact of the Americans with Disabilities Act
of 1990 (42 U.S.C. 12101 et seq.).
- Advising the President, Congress, the commissioner
of the Rehabilitation Services Administration, the Assistant Secretary
for Special Education and Rehabilitative Services within the Department
of Education, and the director of the National Institute on Disability
and Rehabilitation Research on the development of the programs
to be carried out under the Rehabilitation Act of 1973, as amended.
- Providing advice to the commissioner of the Rehabilitation
Services Administration with respect to the policies and conduct
of the administration.
- Making recommendations to the director of the National
Institute on Disability and Rehabilitation Research on ways to
improve research, service, administration, and the collection,
dissemination, and implementation of research findings affecting
persons with disabilities.
- Providing advice regarding priorities for the activities
of the Interagency Disability Coordinating Council and reviewing
the recommendations of this council for legislative and administrative
changes to ensure that such recommendations are consistent with
NCD's purpose of promoting the full integration, independence,
and productivity of individuals with disabilities.
- Preparing and submitting to the president and Congress
an annual report titled National Disability Policy: A Progress
Report.
International
In 1995, NCD was designated by the Department of State
to be the U.S. government's official contact point for disability
issues. Specifically, NCD interacts with the special rapporteur
of the United Nations Commission for Social Development on disability
matters.
Consumers Served and Current Activities
Although many government agencies deal with issues
and programs affecting people with disabilities, NCD is the only
federal agency charged with addressing, analyzing, and making recommendations
on issues of public policy that affect people with disabilities
regardless of age, disability type, perceived employment potential,
economic need, specific functional ability, veteran status, or other
individual circumstance. NCD recognizes its unique opportunity to
facilitate independent living, community integration, and employment
opportunities for people with disabilities by ensuring an informed
and coordinated approach to addressing the concerns of people with
disabilities and eliminating barriers to their active participation
in community and family life.
NCD plays a major role in developing disability policy
in America. In fact, NCD originally proposed what eventually became
the Americans with Disabilities Act. NCD's present list of key issues
includes improving personal assistance services, promoting health
care reform, including students with disabilities in high-quality
programs in typical neighborhood schools, promoting equal employment
and community housing opportunities, monitoring the implementation
of ADA, improving assistive technology, and ensuring that those
persons with disabilities who are members of diverse cultures fully
participate in society.
Statutory History
NCD was initially established in 1978 as an advisory
board within the Department of Education (P.L. 95-602). The Rehabilitation
Act Amendments of 1984 (P.L. 98-221) transformed NCD into an independent
agency.
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