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Introduction

The United States has several laws which are aimed at eliminating discrimination on the basis of race, color, religion, sex, disability, familial status, and national origin. Of those, some of them explicitly discuss discrimination relevant to Electronic and Information Technology. They are:

  • Americans with Disabilities Act: The ADA prohibits discrimination on the basis of disability in employment, State and local government, public accommodations, commercial facilities, transportation, and telecommunications. (We’ll discuss this in depth in another blog post)
  • Telecommunications Act: Section 255 and Section 251(a)(2) of the Communications Act require manufacturers of telecommunications equipment and providers of telecommunications services to ensure that such equipment and services are accessible to and usable by persons with disabilities, if readily achievable.
  • Rehabilitation Act: prohibits discrimination on the basis of disability in programs conducted by Federal agencies, in programs receiving Federal financial assistance, in Federal employment, and in the employment practices of Federal contractors.

Other laws exist which are relevant to EIT, but these are the most well known and most explicit in their accessible EIT requirements.

Rehabilitation Act

Of the above laws, there is one that is of primary concern for government agencies, software manufacturers, hardware manufacturers, and web developers. The Rehabilitation Act prohibits discrimination on the basis of disability in programs conducted by Federal agencies, in programs receiving Federal financial assistance, in Federal employment, and in the employment practices of Federal contractors. The Rehabilitation Act has been amended twice since its inception, once in 1993 and again in 1998. The Reauthorized Rehabilitation Act of 1998 also included amendments to Section 508 of the Act.

Section 508

Section 508 establishes requirements for electronic and information technology developed, maintained, procured, or used by the Federal government. Section 508 requires Federal electronic and information technology to be accessible to people with disabilities, including employees and members of the public.

Section 508 directed the Access Board to create binding, enforceable standards that clearly outline and identify specifically what the federal government means by “accessible” electronic and information technology products.

The current version of Section 508 includes 4 subparts which discuss those standards:

  • Subpart A “General” discusses the applicability of Section 508 and outlines exceptions, definitions, and other general information
  • Subpart B discusses the technical conformance criteria for:
    • Software
    • Web
    • Telecommunications
    • Video & Multimedia
    • Self Contained, Closed Products
    • Desktop and Portable Computers
  • Subpart C discusses the functional performance criteria for a variety of disability types.
  • Subpart D discusses agencies’ requirements relating to systems’ Information, Documentation, and Support

It is these technical standards which most people refer to as “Section 508”, however the full section is much larger and discusses the application of the law, exceptions, reporting, enforcement, and more.

Section 508 Refresh

In 2006 the Access Board directed its staff to revise and update the accessibility standards for E&IT covered under Section 508 and the accessibility guidelines for telecommunications equipment and customer premises equipment covered under Section 255 of the Telecommunications Act with the goal of bringing them up to date with current technology and harmonize the updated standards with international accessibility standards. To support this effort, the Access Board organized the Telecommunications and Electronic and Information Technology Advisory Committee (TEITAC). The TEITAC issued its report to the Board in April 2008.

As of November 2009 members of the Access Board stated they’re still in the process of revising the draft of the text for the Notice of Availability, the mini-preamble and the draft text of the proposed changes to the Section 508 standards and the 255 guidelines. Once that is complete, the Access Board will need to submit it to the Office of Management and Budget (OMB). After the OMB reviews it, it will then be posted for comments on Regulations.gov for a 90 day comment period.

There will be a total of about 5 review & comment periods (including the initial OMB review) during which various parties, including the public, will be eligible to comment on the final version. Due to the somewhat lengthy comment periods lasting as long as 90 days (and the inevitable modifications from that process), it could easily be 2011 before a Final Rule is issued.

Due to the interrelationships between Section 508 and the Federal Acquisition Regulations (FAR, which will also have to be amended), it is likely that there will be a grace period after the Final Rule is issued before “The Refresh” becomes reality.

What’s Expected in the Refresh

Because of the numerous comment periods, it is possible for the Final Rule to be very different from the final report submitted to the Access Board from the TEITAC. Beyond the lengthy comment periods, there are other things which will likely make for big differences: 1) There were a number of items which did not receive consensus among the TEITAC committee which the Access Board will need to resolve before their initial submission to OMB. 2) The Rehabilitation Act is a law. Consequently it must be worded in such a way that compliance can be judged and enforced and, frankly, for compliance to be possible. Nevertheless, here’s what we can tell from the April 2008 TEITAC Report:

  • Functional Performance Criteria have been moved above the individual technical provisions. We see this as important and intentional, aimed to remove the debate about their applicability. Prior to Refresh, there seemed to be little agreement as to when FPC came into play, or if it even mattered at all. This ambiguity is expected to be resolved by the Refreshed 508.
  • Functional Performance Criteria have been broadened and made more specific (in the case of low vision and hearing impairments). We feel that based on some of the comments in minority reports which accompanied the TEITAC report that cognitive criteria are in danger of being dropped as untestable and sometimes inappropriate.
  • Multimedia content’s interactive elements must conform to relevant 508 provisions. In other words, if the multimedia has a menu, that menu needs to be accessible, and not just the content of the multimedia.
  • Accessible Configuration: If a product ships with configuration options which would enhance accessibility, then the agency must implement the product with that configuration.
  • All official agency communication must be accessible. This also seems to be at risk for being removal (or at least modified significantly) due to numerous burdens this places on the government.
  • Harmonization with WCAG is expected to be extensive. At the time of the TEITAC report, WCAG 2.0 was only a Draft Recommendation. Since then, it has reached Full Recommendation Status and, as “harmonization” was a stated goal of the Refresh effort, it is expected that the new Final Rule will include significant and obvious similarities with WCAG 2.0.
  • There are nearly 3 dozen new guidelines (many of them relating to harmonization with WCAG 2.0)

Enforcement Activities of Section 508

It is important to remember that “compliance” with Section 508 is determined by how the procurement was handled not, specifically, how accessible the system is. A number of exceptions apply which allow, in certain circumstances, for an inaccessible system to be procured. Due to the sheer volume of EIT procurements by the Federal Government, it is inevitable that compliance issues will pop up. Nevertheless, high profile litigation relating to 508 compliance is rare.

In general, much of the enforcement activity relating to inaccessible EIT is in the form of federal government employees lodging complaints about inaccessible internal systems as EEO issues. Public citizens submitting informal complaints about agency websites are frequent, though formal complaints are rare. In the majority of cases, the issues (both from employees or citizens) are resolved before litigation is necessary. There are three recent notable exceptions:

  • NFB administrative complaint against SBA, July 22, 2009: “The complaint asserts that the SBA’s Web site violates Section 508 of the Rehabilitation Act because it is inaccessible to blind people who use text-to-speech screen access technology or Braille displays to access information on the Internet. Because of the inaccessibility of the SBA Web site, blind people cannot fill out forms on the site or take online courses offered by the SBA”
  • NFB administrative complaint against SSA, August 24, 2009: “The complaint asserts that the SSA’s Web site violates Section 508 of the Rehabilitation Act because it is inaccessible to blind people who use text-to-speech screen access technology or Braille displays to access information on the Internet. Because of the inaccessibility of the SSA Web site, blind people cannot fill out forms and questionnaires on the site or access information about their benefits.”
  • NFB administrative complaint against DOE, October 27, 2009: “The complaint asserts that one of the United States Department of Education’s Web sites, U.S.A. Learns, violates Section 508 of the Rehabilitation Act because it is inaccessible to blind people who use text-to-speech screen access technology or Braille displays to access information on the Internet. Because of the inaccessibility of the U.S.A. Learns Web site, blind people cannot access or navigate through the content of the English vocabulary, spelling, and pronunciation lessons that are offered through the site.”

These three events are highly significant because:

  • Prior to these events, formal action from the public – especially from such a high profile entity as NFB – was virtually unheard of.
  • These events signify that citizens with disabilities have reached the point where there is a growing sentiment among them that at this point Section 508 has been in force for 10 years and they expect a higher level of accessibility. Consequently, it is assumed that more such high profile administrative complaints are likely, especially against agencies which have “high touch” with citizens.

Does Section 508 Apply to Me?

“On paper”, Section 508 only applies to Agencies in the Executive Branch of the US Federal Government. However, many state & local governments have adopted “508-like” laws or policies as well. In that regard, if you’re a procuring official at a government agency, then Section 508 definitely applies to you.

Additionally, contractors who develop websites & software for the government or who sell EIT to the government are likely to see contract requirements which call for deliverables which comply with Section 508’s technical provisions. Recent efforts among government agencies cooperating with one another on improving compliance has resulted in a number of the agencies having standard boilerplate text for all EIT procurements mandating 508-compliant deliverables and they have integrated 508-compliance into their project management procedures.

Find out more about how to manage compliance with Section 508 in an upcoming blog post.