ABSTRACT

Language from civil rights law has been used creatively to act as a driver or agent of change upon companies that manufacture and produce goods and services. The result is that goods and services produced by these companies can be used by people with disabilities. It is about using, or influencing, law and regulation to create a new force in the marketplace. Unemployed people with disabilities are likely to greatly benefit from this impetus.

 

Adaptations in the workplace can occur through legislative mandates on the private sector, or supply side, for the purpose of addressing the needs of people with disabilities.  It is a different way of making change happen and is an example of a macro or systems change approach.  Mandates that require goods and services to be manufactured for disability access exist now in two major federal laws in the United States and impact two business sectors,  telecommunications and information technology.  These are recent and important developments that expand opportunity for people with disabilities and permit business to consider new markets. 

 

The overarching effect of these statutory requirements for disability access is to advance the concept of universal design into the telecommunications and electronic and information technology industries. These legal requirements are causing companies in the private sector to change the way they design, develop and fabricate products and services.  Companies must now develop products to be accessible to, and usable and operable by, people with disabilities. Products are everyday items used in the workplace, home or school or workplace or other setting.

 

A critical result of imposing these requirements is addressing the workplace need for accessibility in telecommunications and information  technology.  The approach therefore can help reduce significant high levels of unemployment found among people with disabilities.

 

Requiring Disability Access in Telecommunications and Information Technology

Section 255 in the Telecommunications Act of 1996, is one such universal design requirement.  The Telecommunications Act is the underlying statute or law for all electronic communications in the U.S.  Originally enacted in 1934, the law underwent a major overhaul due to market-based pressures in the industry and was amended in 1996 and signed by President William Clinton in February,1996.   This law affects all mobile, satellite communications, television (broadcast, cable and satellite), radio and wireline and wireless telephony, in America.   The Communications Act is enforced by the Federal Communications Commission (FCC), an independent federal agency in Washington, D.C.

 

The Section 255 provision affects an industry making billions of dollars annually in telecommunications products and services a year, products and services that are used in the workplace and in homes and other settings.  Section 255 was a new provision added to the Communications Act, and represents the first time that an entire industry is required to design, develop and fabricate equipment and services that take into account the needs of people with disabilities.^[1]   Since the law is now in effect, companies are required to comply with FCC rules for Section 255, to be published by the end of 1999, and individuals with disabilities are beginning to enjoy the fruits of the mandate.

 

A second example of a universal design requirement is found in Section 508 of the Rehabilitation Act of 1998, as amended, signed by President William Clinton in August, 1998.   The Rehabilitation Act is a statute that undergirds the rehabilitation system in the U.S. The federal rehabilitation program delivers about $2 billion in services annually, executed via a statewide system of service delivery targeted to people with disabilities.  This program is administered in Washington, D.C. by the Rehabilitation Services Administration (RSA), which oversees and directs the state level agencies to deliver vocational rehabilitation services.  Within this Rehabilitation Act is the Section 508 provision. This provision, originating in 1986, was upgraded in 1998 during reauthorization of the rehabilitation law, to ensure better implementation and greater accountability.

 

Section 508 requires that electronic and information technology purchased by the federal government must be accessible to people with disabilities, commencing for all purchases after August 7, 2000.  Since federal government agencies purchase millions of dollars of information technology each year, the section 508 standards will have a great spill-over or ripple effect in the private sector. 

 

It is anticipated that both these universal design requirements, since they impact manufacture of goods and services, will cause barriers to employment to fall in both the public and private sectors, for people with disabilities.  In the U.S., people with disabilities experience one of the highest level of unemployment of any group, both due to a number of historical conditions and because  workplace access to technology has not been addressed directly.

 

People with Disabilities: Unemployment Statistics     

The unemployment statistics for people with disabilities in the U.S. follow.  Figures are for working-age Americans with disabilities (ages 21 to 64).  These figures are the most up-to-date data from the U.S. Census Bureau, released in 1996 and tracks the years between 1991-1994. The next U.S. Census (2000) hopefully will show a less gloomy picture.

 

 

 

Unemployment Highest Among Minorities With Disabilities

According to the U.S. Census Bureau's 1994-95 data, 72.2% of African Americans with disabilities and 51.9% of Hispanics with disabilities are not working.  For those with severe disabilities the situation is worse:  85.5% of African Americans and 75.4% of Hispanics with severe disabilities are not working.

 

 

 

These figures are upsetting as the U.S. economy approaches full employment -- about 4.3 percent unemployment overall -- with economic growth and stability expected to be sustained for years.  The U.S. Department of Labor asserts that the labor supply continues to shrink with growth slowing to a crawl and creating the tightest labor market in forty years.   Since 1996, the number of people on the job or available for hire has increased at only 1.1 percent last year, a pace that should continue through 2006, and slower than the precious 10 years which increased at only 1.3 percent.

 

Making technology accessible in the workplace is one way to address the problem of unemployment for people with disabilities.  Universal design is a process that facilitates this as it makes products and services easy to use, enriching products and services for other groups, such as the elderly, foreigners, and those unaccustomed to utilizing technology.

 

Universal Design

Universal design means designing things in the beginning stages to take into account  the largest possible range of users, and which includes people with a variety of disabilities.  It is a process or approach rather than a certain specific outcome.

 

 

This is as opposed to designing for average people, or standard people, or what used to be called ‘normal’ people and then expecting people with disabilities to fit or adapt themselves to the equipment or environment in some way. The end result of a non-universal design approach may cost a lot to the individual with a disability, or cause a ‘special cost’ to society, and may involve expensive and inconvenient retrofitting of an item or system.

 

 

 

A mandate for universal design -- such as found within Section 255 and Section 508 -- means, in the practical sense, that certain industries will have to change how they approach designing their goods and services.  In the example of section 255 of the Telecommunications Act, telecommunications companies (equipment manufacturers and services providers) are targeted.  In the example of section 508 of the Rehabilitation Act, information technology and telecommunications companies that sell to the federal government are targeted.

 

THE MANDATE IN SECTION 255, TELECOMMUNICATIONS ACT^[2]

 

 

This mandate greatly affects the telecommunications industry.  It means that as they make and develop telecommunications goods and services, designers and developers and manufacturers have to think about the needs of and usage by people with disabilities. This means taking into account the needs of people with vision, hearing, speech or other disability or functional limitation. Designers must now think through if someone can wheel up to a device (such as an electronic information kiosk or phone appliance), how they will see or hear it (if it is a wireline or wireless telephone set) if they have a vision or hearing disability or limitation, or how they will manipulate the controls or the content that the device accesses, and how a person might understand how to use it (if they have a mental disability) or how to speak to it (if they have a speech or hearing disability). If a device doesn’t work for a person who can’t hear or see, for instance, then it is not accessible.  And it probably is not too user-friendly for elderly persons either. Or those of us who get impatient fast with buttons and controls and menus!

 

Mandate Includes Service Providers

Section 255 also pertains to service providers.

 

 

This means whatever services they sell must be also usable  by a person with a disability.  Services here means basic telephone services, which are defined by the Federal Communications Commission (FCC), the regulating agency, as dial tone, touch tone, voice telephony.  Such services here also mean adjunct-to-basic services, defined by the FCC as “services that are basic in purpose, that facilitate  completion of calls through basic telephone service facilities,  without altering the fundamental character of telephone service, and which  bring maximum benefit to the public through incorporation into the network.”   Examples include:  directory assistance, electronic directory assistance, speed dialing, call forwarding, computer-provided directory assistance, call monitoring, caller identification, call tracing, call blocking, call return, repeat dialing, call tracking, Operator Services for the Deaf (OSD), some Centrex (centralized operator) features.

 

In many instance, some of these are features that can be found in the device itself or which can be purchased as a service within the network.  Speed dialing is one example found on phone sets but which can also be invoked while making a phone call to directory assistance.

 

However, there is another group of services, defined by the FCC, called enhanced services, which are not yet covered by the Sec. 255 mandate.   Some of these types of services include: voice mail, electronic mail, facsimile store and forward, interactive voice response,  protocol processing gateway, audiotext information services, electronic store and forward, data processing, gateways to online databases, alarm monitoring, reverse directory services, and other information services. These are the services provided typically by Information Services Providers (ISPs) such as America On Line, Compuserve and thousands of other Internet-using providers. Information services  are not currently regulated in the U.S. although such services often pass through the public  network (copper and fiber lines).

 

The community of people with disabilities, and their advocates, would like information services providers to address disability access as such services are now almost ubiquitous and it is often necessary to access information services to perform job functions.   ‘Searching the web’ or ‘surfing the net’ for various nuggets of information used to conduct one’s tasks in the workplace is often not possible for people who are blind.  Many web browsers can’t read aloud or navigate the information on web pages, particularly those with extensive graphics and windows.  Information services are becoming part of what is sold and bundled in different ways, by different providers as technology converges.  There often appears -- to end users with disabilities -- to  be artificial regulatory walls between ‘enhanced services’ and other services that use telephone lines that was created in previous regulations and which have not been addressed appropriately in the new amended communications law. As telephone service providers use new lines (wirelines, wireless, broadband) the end user with a disability doesn’t know the technological or regulatory barriers – he or she just wants it to work for them.^[3]

 

Compatibility with Assistive Technology

The Sec. 255 mandate says also that if companies cannot make equipment and services accessible and operable, that is, if it is not readily achievable to make products, equipment and services accessible to people with disabilities, then the company must make it work, or be compatible, with the equipment, or assistive technology, that people with disabilities use.   This means equipment used by people with disabilities such as TTYs, electronic voice prosthetics, artificial limbs, other medically necessary aids, although this list is not limited to these items.

 

 

 

Section 255 Rooted in Disability Civil Rights Law

The text of  Section 255 opens with key definitions found in the Americans With Disabilities Act (ADA), signed by President George Bush in 1990.  These include the definition of disability and the term ‘readily achievable’ as found in the ADA.

 

 

The definitions used here are found in the basic civil rights law that protects people with disabilities in the United States, the Americans with Disabilities Act or the ADA, enacted in 1990.  The same ‘definition of disability’ is used and the same concept of ‘readily achievable’ are used in a creative way. They were imported from the civil rights law into a law which affects numerous private sector entities.  Not only does this provide consistency but it is a creative way to export concepts in civil rights law. The ADA established the U.S. as the world leader in defining civil rights for people with disabilities.  Using language from the fundamental civil rights law for people with disabilities in other laws, such as the Telecommunications Act, is a transformative act that seeks to remove the barrier between people with disabilities and those without disabilities. 

 

Major life activities are walking, talking, breathing, seeing, talking, working, etc. and are  determined as ADA cases develop.  In determining ‘readily achievable’ under the Sec. 255 mandate, it is the general feeling of  the disability community that a good deal of accessibility can be easily accomplished and without much expense, if technically feasible. Telecommunications companies, both service providers and makers of equipment, are huge corporations, valued in the billions of dollars.  Disability advocates have noted that new products and services are often ‘engineering driven’, that is, a new technology may lead to market development rather than vice versa.  While markets may demand certain types of services, it is often the marketing departments of telecommunications companies who are central to determining whether a particular technology will reach the market. 

 

Industry Involved in Developing the Rules

There has been significant industry involvement in developing the rules under this mandate. Also,  many people with disabilities, and their representatives, were involved.  The mandate required the U.S. Access Board to develop recommendations for guidelines to standards under Sec. 255.  The U.S. Access Board formed a Telecommunications Access Advisory Committee (referred to as “the TAAC”). Through a public notification process members of disability organizations and telecommunications companies were invited to a ‘talks’ process.  The TAAC met two or three days a month for about 10 months holding intensive discussions on the rulemaking.  During this process private sector individuals had the opportunity of learning a lot more about disability, about ‘the disability point of view’ and about the social conditions of people with disabilities and their families.  Conversely, individuals with disabilities learned a lot more about the industry, its concerns and thoughts about disability.  Many of the usual stereotypes about people with disabilities were punctured during the TAAC rulemaking process, which resulted in guidelines for standards.^[4]

 

Of even greater importance, critical relationships were built between industry, academic and disability community leaders and advocates.  Often it is these relationships, built through regulatory development via person-to-person contacts, that has lead to real change occurring. For example, during the TAAC process, one engineer with a  regulatory and standards-making background, after meeting people with significant sensory disabilities,  made a personal commitment to returning to his home office to ensure that ‘something would be done’ about disability accessibility at his company.  Over an 18 month period he has been able to form a disability interest team that is made up of people from different departments and divisions within his company.  This team is ‘carrying the word’ about disability to different parts of the company and is, in effect, injecting a new consciousness about disability within that particular corporate culture. Other companies are creating disability access centers and disability web sites, disability engineering teams and similar process-oriented activities in response to the Section 255 rule.  Products include training films to show to new employees, design engineering manuals, and training for staff at customer call centers.

 

In a similar vein, some industry trade associations and standards-making bodies have formed disability standards development committees, or are developing training manuals, or  otherwise developing “disability sensitivity” in response to the mandate.  It is often one ‘champion’ who starts this process, who decides disability accessibility is important and who works on introducing the topic on the agenda within whatever organizations and entities they are involved with.  These are the allies and new heroes for the disability community!

 

THE SECTION 508 MANDATE

Sec. 508 is a few paragraphs found in another larger law, the Workforce Investment Act of 1998, a major piece of legislation signed by President Clinton August 1998. Essentially it says that all U.S. federal government agencies that buy information technology must ensure that what they purchase can work for an employee with a disability or for a customer of the agency with a disability.

 

 

This includes items such as desk top computers, information kiosks, copy or Xerox machines on networks, any equipment that is automatic and part of an electronically operated system. The law has a wide-ranging effect as both federal employees and their customers are covered.

 

 

 

Fall Back Provision

And, again, as in the Sec. 255, there is a fall-back provision. If the agency purchasing information technology finds this to be an undue burden, they have to find another way to provide access for the employee or customer.

 

 

Undue burden has a similar meaning to ‘readily achievable’, although it is considered a higher standard.  Other stipulations in these few paragraphs that affect the hundreds of information technology vendors selling the U.S. federal government address standards development and what is defined as information technology. Section 508 uses a definition of electronic and information technology that is found in another piece of legislation, the Clinger‑Cohen Act of 1996, and which exempts certain national defense-related technology.

 

 

The rulemaking process by the U.S. Access Board clarified the scope of equipment and services covered. Similar to the rulemaking process for telecommunications access, the U.S. Access Board brought together key persons from the private sector and disability community to develop recommendations for the rule.  They formed an “Electronic and Information Technology Access Advisory Committee” (the EITAAC) to develop the rule, which consisted of private sector individuals, people from disability organizations, federal agency participants and other experts. As in the TAAC process, key persons with disabilities were involved or were “at the table” during these discussions.  This again expedited the learning process about disability for the private sector representatives of companies that sell to the federal government. This type of process permits a lot of  learning about disability and at the same time permits a realistic final rule to be developed.

 

Critical Component in Development of These Mandates

Most importantly, people with disabilities in hearing, vision, speech, cognition and mobility were involved every step along the way.  For instance, a coalition of disability services and advocacy organizations was formed in Washington, D.C. to work on the impending changes in the telecommunications law. This coalition included, as a majority, people with significant sensory and motor disabilities. In as many instances as possible, people with disabilities acted as spokespersons, negotiators, lobbyists and in other roles during the ongoing process of ‘educating’. There were hundreds of conversatons with the industry persons, appropriate Congressional legislators and federal regulators what the needs for disability access in telecommunications were about.  In the Section508 example, federal agency staff and some disability advocates built on previous language, borrowed concepts from Sectoin 255, and slowly added the provisions during the reauthorization process for the Rehabilitation Act.

 

Mandate Rooted in Human Rights

Other key success factors were use of good definitions and language borrowed from the Americans With Disabilities Act, the fundamental civil rights law that protects people with disabilities.  The basic concept of civil rights -- when applied to the marketplace –  is that a person with a disability has the same right to the use and the benefit of goods and services as do people without disabilities. This is based on the understanding that:

 

n                  disability is a natural part of the human condition

n                  anyone at any time in any place can become a person with a disability

n                  society as a whole shares responsibility for disability

n                  it is wrong to put barriers in the way of people with disabilities.

 

Everyone Gains When Disability Access Is Built In

This is a fundamentally egalitarian approach that is deep-rooted in Western civilization. Its manifestation introduces new forces into the market place: for companies who are now ‘forced’ or ‘compelled’ to make their products and services disability accessible, there is a steep learning curve.  They have to re-think how they look at  ‘the market for people with disabilities’.  They can no longer can carve up the market into  “the blind” or “the deaf” or “the wheelchair bound” or “the dumb” or “the retarded”. There can be no more minimizing.  Private sector marketing personnel now must realize that a person with hearing disability lives in a household that purchases products that every one else uses.  They have to reflect on the reality that a person who is blind might now be in a workplace.  This means understanding that people with disabiliteis are part of the whole and that equipment and services manufactured and sold must work for both person (s) with and persons without disabilities.  They have to start making products and services that work for everyone and that can be found “on the shelf’.

 

There will always likely be a need for some very specialized and custom-made technology for people with some very severe and multiple disabilities, but this new approach, the approach called universal design, starts with the everyday and asks that off-the-shelf products and services are designed and developed at the outset to be used by people with disabilities.

 

By requiring federal government purchases to be disability accessible a  supply side market force is created.  It allows engineers and other problem solvers to find new ways to innovate and generate new products.  Workplaces will be highly impacted as more and more products and services become available as they are designed with disability access in mind from the beginning.

Employers will discover that it is easier to hire a person with a disability in the workplace as they will find computers, telephones, fax machines, copiers and other equipment already in the market place, that works for the person in a wheelchair, or who has a vision disability or who has hearing loss or other disability.  Designing for disability provides access for any one, at any time, any where, or any place.  This concept meets a fundamental market driver of the private sector, which is to be able to sell a product or service that can be accessed electronically at any place, at any time by any one.  It also means companies can sell a lot more!

 

Summary

An overall effect of these two civil rights based mandates has been to introduce new concepts into the market place, that is, “to think outside of the box” for many companies.  A universal design approach or policy creates impact as it:

 

n                  is a process that changes how products and services are made;

n                  removes the burden of adapting to the world from the individual with a disability;

n                  spreads responsibility across the marketplace.

n                  takes down barriers between people as everyone benefits as products and services are designed for people with disabilities. The approach makes things usually more ‘user friendly’ for those without disabilities and additionally, as a person who is now not-disabled becomes disabled, or loses functional capacities (such as in hearing, vision, speech, cognition,  and mobility) as they age, they will not lose the ability to use every- day and commonly found products and services.

 

Including the needs of people with disabilities into what is made for everyone else can enrich us all.

 

Jenifer Simpson is an Employment Advisor and Technology Policy Analyst with the President’s Committee on Employment of People With Disabilities, a small federal agency with a mission to enhance employment of people with disabilities. She was the founder and convener of the Consortium for Citizens With Disabilities Task Force on Communications Access and is the parent of a 14 year old boy severely disabled by cerebral palsy.  President’s Committee on Employment of People With Disabilities, Washington, D.C., USA. Tel: (202) 376-6200 Ext. 37. Fax (202) 376-6868. Web site at <http://www.pcepd.gov.  Email Jenifer Simpson JSIMPSON@fcc.gov 

 

Summer 1999