An Overview of Law & Policy for IT Accessibility
A Resource for State and Municipal IT Policy makers
How To Use This Report
This report is intended as an introduction to the issue
of electronic and information technology accessibility for governmental policy
makers at the State and Local level. The
Authors do not intend for this to be a complete discussion of the complex issues
involved, nor do they intend this resource to be the “final word” regarding
the changing regulatory and technological environment. Finally, this report
should not be construed as legal advice or opinion on specific facts since
particular legal questions can best be answered by seeking the advice of
About the Authors
Cynthia D. Waddell is a nationally known expert, author
and speaker on disability access matters and holds Federal, State, County and
City appointments addressing governmental policy, legislation and compliance
with State and Federal disability access laws.
Cynthia currently works as the Disability Access Coordinator for the City
of San Jose, California, where she is responsible for ensuring the City’s
compliance with State and Federal disability access laws. Cynthia is the author
of the first local government policy for accessible web design that has been
noted as a “best practice” by both the federal government and the League of
California Cities. Named to the
“Top 25 Women on the Web” by Webgrrls International, Cynthia’s work
supports the efforts of the Web Accessibility Initiative (WAI) of the World Wide
Web Consortium (W3C). A collection
of selected papers and presentations on law and policy impacted electronic and
information technology can be found at http://www.icdri.org/cynthia_waddell.htm.
Currently, Mark Urban, MCP, is a consultant with Metamor
Worldwide. He is a member of the National Committee on Information Technology
Standards (NCITS) workgroup on accessibility.
He is active in the W3C Web Content Guidelines and WAI Education and
Outreach Committees. He is acting as Accessibility Architect within the State of
North Carolina’s Office of Information Technology Services to provide
coordination of policy, standards, and services for Electronic & Information
Technology (EIT) by persons with disabilities within State Government. He has
served as Chief Executive of a municipality in Massachusetts.
Prior to his current role, he acted as Sr. Systems Integrator for the
State’s web-based procurement system. Before serving North Carolina’s
Government, Mr. Urban accumulated 10 years of Ground-up business experience as a
Systems Analyst and Project Manager with Executive Housekeeping in Boston, MA.
The need for accessibility
Information technology accessibility for Americans is at
a critical turning point. According
to the 1999 U.S. Department of Commerce report, Falling Through the Net:
Defining the Digital Divide, although more Americans than ever have access
to information tools, such as the personal computer and the Internet, there is
still a significant "digital divide" between those who “have” and
Yet, even if we were to overcome the problem of connectivity for everyone,
another significant problem remains. According
to the 1999 U.S. Department of Commerce report, The Growing Digital Divide in
Access for People with Disabilities: Overcoming Barriers to Participation,
even Americans with disabilities who have access to information technology are
subject to another significant “digital divide” between those who “can”
Usability of information technology becomes a serious
issue for Americans with disabilities when they are excluded from the e-commerce
and e-government due to the inaccessible design of information technology.
Those who “can” and “cannot” are finding a growing number of
access barriers, such as inaccessible web sites, software incompatibility with
adaptive devices, and voice automated systems inaccessible to adaptive
Fortunately, a closer look at the design features of
accessible technology reveals that the benefits extend beyond the community of
people with disabilities. For
example, accessible web design enables the very functionality needed for a
diverse community to conduct dynamic, web-based transactions – whether or not
it is for business transactions, voting or long-distance learning. In addition,
CD and videotapes can be archived through captioning and electronic textbooks
can be made accessible. Even illiterate populations can access the web by
listening to screen readers audibly reading the text on the web page.
But perhaps the most significant benefit for the global
economy is the fact that accessible web design enables low technology to access
high technology; thereby contributing to a stable, sustainable electronic
infrastructure. People with slow modems and low bandwidth can access the
electronic content of the web even if they do not have the state-of-the-art
computer equipment. Likewise, people with personal digital assistants and cell
phones can access the content of web sites incorporating accessible web design
features. Therefore, it is not
surprising that a growing number of governments around the world have adopted
accessible web standards to ensure participation in the global economy.
with Disabilities Act of 1990
Americans with Disabilities Act (ADA) requires that covered entities furnish
appropriate auxiliary aids and services where necessary to ensure effective
communication with individuals with disabilities, unless doing so would result
in a fundamental alteration to the program or service or in an undue burden.
See 28 C.F. R. Section 36.303; 28 C.F.R. Section 35.160.
Auxiliary aids include taped texts, Brailled materials, large print
materials, captioning and other methods of making audio and visual media
available to people with disabilities.
On September 9, 1996, the U.S. Department of Justice
issued a policy ruling that stated that ADA Titles II and III require State and
Local Governments and the business sector to provide effective communication
whenever they communicate through the Internet.
This effective communication rule applies to covered entities using the
Internet for communications regarding their programs, goods or services since
they must be prepared to offer those communications via an accessible medium.
As discussed in the paper, “Applying the ADA to the
Internet: A Web Accessibility Standard,” State and Local governments should be
adopting and implementing accessible web design policies to ensure compliance
with the ADA. Moreover, as early as 1995, ADA discrimination complaints have
been filed against public agencies resulting in settlements, either public or
Events this past year demonstrate the continued activity
in the filing of ADA complaints to address access barriers in electronic and
information technology. For
example, in November 1999, the National Federation of the Blind filed suit
against America Online, Inc., charging that AOL’s proprietary browser and
internet web site was inaccessible to consumers who are blind.
In March 2000, an ADA settlement agreement was reached between Bank of
America and the California Council of the Blind to not only install 2500 talking
ATMS in Florida and California, but to ensure that its Web site and online
banking services were accessible to people using screenreaders.
Even April 2000 brought an ADA settlement agreement between the
Connecticut Attorney General’s Office, the National Federation of the Blind,
and four online tax filing services. The
four popular online tax filing services listed on the Internal Revenue
Service’s official web site as on-line partners have agreed to change the
coding of five websites to ensure that people who are blind can access the sites
for the year 2000 tax filing season.
Act Amendments of 1998
On August 7, 1998, Public Law 105-220 enacted the
Rehabilitation Act Amendments of 1998 which significantly expands and
strengthens the technology access requirements of Section 508 of the
Rehabilitation Act of 1973 (Section 508). Section
508 requires that when Federal agencies develop, procure, maintain, or use
electronic and information technology, they must ensure that the electronic and
information technology is accessible to people with disabilities, unless it
would pose an undue burden to do so. Federal employees and members of the public
who have disabilities must have access to and use of information and services
that is comparable to the same available to non-disabled Federal employees and
members of the public.
Under Section 508, the scope of electronic and information
technology is expansively defined. It includes computers (such as hardware,
software, and accessible data such as web pages), facsimile machines, copiers,
information transaction machines or kiosks, telephones, and other equipment used
for transmitting, receiving, using, or storing information.
A Federal agency does not have to comply with the
technology access standards if it would impose an undue burden to do so. This is
consistent with language expressed in the Americans with Disabilities Act (ADA)
of 1990 and other disability rights legislation, where the term "undue
burden" is defined as "significant difficulty or expense."
Agencies shall continue to have long-standing obligations under sections 501 and
504 of the Rehabilitation Act to provide reasonable accommodations to qualified
individuals with disabilities upon request.
Section 508 State Impact
In addition to Federal agencies, States are also impacted
by Section 508. States receiving
Federal funding under the Assistive Technology Act of 1998 will be subject to
Section 508. This means that
States' purchases of electronic and information technology must also comply with
the accessibility standards set forth under Section 508.
Even local governmental entities may be impacted, especially in those
States where statutes prohibit discrimination on the basis of disability by
entities receiving state funds.
Perhaps more significantly, however, Section 508 will
inform States and Local Government on how to provide accessible services for
their citizens and accessible work environments for their employees as already
mandated under the ADA. In its
infancy, compliance with the ADA was informed by the body of law developed under
the Rehabilitation Act of 1973. Similarly,
it is expected that Section 508 and its information technology accessibility
standards will inform State and Local Government ADA compliance efforts.
As more and more intra- and inter-governmental services
utilize information technology, policymakers will at a minimum be required to
implement Section 508 guidelines - or determine their own guidelines, standards,
and policies regarding IT procurement, deployment and use – to avoid liability
for the violation of disability rights. Currently, it is the opinion of the authors that State and
Local Government implementation of the World Wide Web Consortium Web Content
Accessibility Guidelines 1.0 would satisfy the U.S. disability rights mandate
for accessible web design.
In fact, implementation of these standards would ensure that the U.S.
remain competitive in the global market since the European Commission endorsed these
standards in May 2000 as a policy for all European institutions and Members
Both State and Federal agencies must also be aware of the
determination by the U.S. Department of Justice that accessibility issues cannot
continue to be addressed exclusively on an “ad hoc” or “as needed”
basis. In fact, a systemic
accessibility plan must be in place for electronic and information technology.
According to the April 2000 U.S. Attorney General report on the state of
Data provided by the agencies
suggest that the majority of agencies that continue to handle IT accessibility
issues exclusively on an "ad hoc" or "as needed" basis,
instead of integrating accessibility into the development and procurement of
their mainstream IT products. Many IT officials hold the mistaken belief that
persons with disabilities can always be accommodated upon request by using
widely available assistive technology devices (e.g., screen readers,
screen enlargers, volume control apparatuses, pointing devices that serve as
alternatives to a computer mouse, voice recognition software, etc.) in
conjunction with mainstream technology applications. Indeed, the goal of section
508 is to ensure that the agency will always be able to provide reasonable
accommodations. Without adequate planning, however, the possibility of providing
an accommodation to person with a disability may be foreclosed…. Use of an
"ad hoc" or "as needed" approach to IT accessibility will
result in barriers for persons with disabilities. A much better approach is to
integrate accessibility reviews into the earliest stages of design, development,
and procurement of IT. Once an accessible IT architecture is established, then
and only then can persons with disabilities be successfully accommodated on
an "as needed" basis.
Standards are being established by the U.S. Access Board to
provide technical and functional
performance criteria that will determine whether a technology product or system
"accessible." Federal agencies must comply with these technology
accessibility standards for
all electronic and information technology acquired on or after August 7, 2000.
This will require increased coordination and technical assistance to
carry out this mandate.
The administrative complaint process for Section 508 will
become effective August 7, 2000.
It enables an individual with a disability to file a complaint alleging
that a Federal department or agency has not complied with the accessible
technology standards for a procurement made after August 7, 2000. The complaint
process is the same as that used for Section 504 of the Rehabilitation Act which
provides for complaints alleging discrimination on the basis of disability in
programs or activities conducted by Federal agencies or States receiving Federal
funds. Remedies include injunctive
relief and attorney fees to the prevailing party, but does not include
compensatory or punitive damages. Moreover, individuals may also file a civil
action against the agency for not complying with Section 508.
of Section 508 Important Limitations
Built-in assistive technology is not required where it is not
needed. The law does not require every workstation of nondisabled employees
or every EIT product to be fully accessible to persons with disabilities.
Products such as desktop computers do not have to be outfitted with refreshable
Braille displays, but must be compatible with refreshable Braille displays so
that if an individual who is blind needs one as a reasonable accommodation, he
or she can use it with the agency's standard workstations. The Access Board's
Section 508 Standards will determine when an EIT product must be fully
accessible and when it must only be compatible with assistive technology.
Undue burden. Agencies do not have to procure EIT products
that satisfy the Access Board's Section 508 Standards if doing so is an undue
burden. "Undue burden" generally means a "significant
difficulty or expense." The Standards will include factors that agencies
can use to help apply this term consistently.
Development, maintenance, and use of EIT products. The
enforcement provisions of section 508 cover only "procurement" of EIT
products and services on or after August 7, 2000. Agencies will continue to have long-standing obligations
under sections 501 and 504 of the Rehabilitation Act to provide reasonable
accommodations to qualified individuals with disabilities upon request.
Do you, as a senior policy maker,
understand what accessibility is, and what it means?
Do you know what departments and
personnel within your organization are responsible for ADA and 508 compliance?
(ADA/TECh act organization)
Do your IT managers (Department
heads/MIS directors/Webmasters) understand Electronic & Information
Have you adopted an architecture and
web design standard for accessibility (W3c/WAI, Sec. 508, etc.)
Did you include all organizational stakeholders in their development?
Do you have training and technical support available for those who do not
understand the practical implementation of that standard?
Is the standard applied throughout your organization?
Do you have a phased, cost-effective approach to limit undue burden?
Do your ecommerce/egovernment sites
have a consistant, accessible interface?
Do Your Citizens have alternatives
to egovernment ?
How will you evaluate your progress
towards accessibility? (checklists, assessment tools, etc.)
Are your electronic documents and
databases accessible? (public and internal)
Amidst all the technical and legal maze of requirements,
standards, and guidelines, it is important to keep one thing clear:
accessibility provides opportunities for governments to provide services to the
widest audience and the most employees, to the greatest extent possible, in ways
that have been inconceivable until now. The
benefits – economic, political, and ethical – far outweigh the cost of a
well-planned, phased accessibility plan. The
cost of being inaccessible – missing the boat on the coming age of thin
clients, failing to serve your most needful citizens and employees, and legal
liability – can be incalculable. This
millennium offers unprecedented opportunities for efficient, effective
governance. Don’t be on the wrong side of this Digital Divide.
 See Cynthia D. Waddell,
“The Growing Digital Divide in Access for People with Disabilities:
Overcoming Barriers to Participation,” commissioned by the U.S. government
for the U.S. Department of Commerce, Understanding the Digital Economy
Conference held in May 1999. See
under “conference papers” or a more “web-friendly” version at http://www.icdri.org/the_digital_divide.htm.
Hereinafter referred to as “The Growing Digital Divide.”
 Deval Patrick, Assistant
Attorney General, Civil Rights Division, U. S.
Department of Justice, letter to Tom Harkin, U. S. Senate, re
application of the ADA to “web pages” on the Internet, September 9,
1996, 10 NDLR ¶ 240.
See Cynthia D. Waddell, “Applying the ADA to the Internet: A Web
Accessibility Standard,” a paper written at the request of the American
Bar Association in 1998 for their National Conference "In Pursuit . . .
A Blueprint for Disability Law and Policy” at http://www.icdri.org/applying_the_ada_to_the_internet.htm
 See http://www.icdri.org/eudisab.htm.
The European Commission “adopted a communication which is intended to
build the framework for improving access for the disabled at the workplace
and beyond. The Communication outlines key objectives which the Commission
believes the European Union should pursue in order to improve access in
every sense for the disabled and hence to promote full participation for all
Europeans living with disabilities."
 Excerpt from the April
2000 report of the U.S. Attorney General, “Information Technology and
People with Disabilities: The
Current State of Federal Accessibility,” Section II, General Findings and
Recommendations, page 7, at http://www.usdoj.gov/crt/508/report/content.htm.
 Ibid., Section II, pages
2-3, at http://www.usdoj.gov/crt/508/report/content.htm.
This Overview cites and paraphrases language from Section II
applicable to State and Local Government.
For example, another limitation of Section 508 applies to the private
sector in that private use is unaffected. Although a manufacturer must
comply with the U.S. Access Board Section 508 standards for those IT
products sold to federal agencies, Section 508 does not directly impact IT
products utilized by the company, those offered by for sale to the company,
or the company’s web site. However,
as discussed in this overview, Section 508 will inform entities covered
under the ADA on how to provide accessible electronic and information