III. Administrative Complaints
A. Legal Framework
Section 508 provides two alternative methods through which individuals with
disabilities can enforce the statute: (1) administrative complaints and (2)
lawsuits. The Department’s self-evaluation guidance and this Report focus
primarily on issues concerning the formal administrative complaint process.
Best Practice: Solicit Input Before Problems Occur
In addition to the formal complaint process, agencies should establish
alternatives to increase communication from appropriate parties while procuring
and deploying electronic and information technology (EIT). Full use of these
methods is likely to decrease the need for formal dispute resolution. For
Agencies should consider, in appropriate circumstances, issuing draft Requests
for Proposals (RFPs) in anticipation of procurement actions in order to
facilitate a dialogue with the vendor community and to solicit the input of
advocacy groups and people with disabilities regarding the adequacy of the
draft RFPs’ treatment of section 508's requirements and defenses.
Agencies should elicit and record informal troubleshooting suggestions from
people with disabilities who use agencies’ EIT.1
Many agencies and manufacturers who maintain “help desks” already
use special software to track types of problems encountered by their users. In
addition to increasing the general efficiency of their information technology
staff, this technique may also help eliminate disability-related problems. For
instance, agencies may want to train their computer support “help”
desk personnel to recognize and record disability-related requests for
assistance related to integration issues between assistive technology and EIT.
These requests and the methods used to resolve them can be logged and later
referenced when other people with disabilities experience similar problems.
These requests can also be forwarded to the vendor for appropriate
Persons with disabilities may file administrative complaints or lawsuits on or
after June 21, 2001 (six months after the Access Board published its final
rule), but only with respect to federal agency procurements made in violation
of section 508. 2 29 U.S.C. §
794d(f). Section 508 does not authorize administrative complaints or lawsuits
to be filed with respect to EIT that is “developed, maintained, or
used” by a federal agency. 3
By statute, persons with disabilities who file administrative complaints
alleging that an agency’s procurement has violated section 508 must file
it with the agency alleged to be in noncompliance. 29 U.S.C. § 794d(f)(2).
Specifically, that section provides:
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 794 of this title for resolving allegations of discrimination
in a federally conducted program or activity.
. Thus, section 508 adopts the section 504 complaint processes of the
agencies. Each of the agencies have already adopted their own processes for
handling section 504 complaints; thus, these processes will likely form the
basis for handling section 508 complaints.
For technical assistance on the proper procedures for handling and resolving
civil rights complaints, generally, the Department of Justice has published Investigations
Procedures Manual for the Investigation and Resolution of Complaints Alleging
Violations of Title VI and Other Nondiscrimination Statutes (Investigations
Procedures Manual). The Investigative Procedures Manual is available online ( http://www.usdoj.gov/crt/cor/Pubs/manuals/complain.html). Because section
508's administrative complaint processes are patterned after those of title VI
of the 1964 Civil Rights Act, the Investigative Procedures Manual provides
relevant guidance to agencies during their development of appropriate policies
and procedures for section 508.
Agencies are advised not to follow the procedures developed by the Equal
Employment Opportunity Commission (EEOC) under 29 C.F.R. Part 1614, which sets
forth the federal sector complaint process for section 501 complaints.
On July 22, 2003, EEOC Chair Cari M. Dominguez signed an order making clear
that section 508 complaints against the agency would not be handled through the
process outlined in 29 C.F.R. Part 1614. Instead, all such complaints will be
handled under the procedures that the agency already uses for section 504
complaints from members of the public (29 C.F.R. 1615.170(d)-(m)). A notice
summarizing this order was published in the Federal Register on August 6, 2003.
68 Fed. Reg. 46,630 (avail able at
http://www.access.gpo.gov). Agencies are encouraged to review this
information when devising their section 508 complaint procedures. Where
possible, agencies should adopt policies that require that web pages are tested
by people with disabilities familiar with the use of screen readers or other
Under certain circumstances, however, an employee’s complaint may give
rise to claims under both section 501 and 508. The EEOC procedures make clear
that if such a complaint against the agency is received under the Part 1614
procedures, the agency will process the 501 claim under Part 1614 and the 508
claim under Part 1615.
The Department’s January 2001 self-evaluation materials posed three
questions designed to focus agencies’ attention on their administrative
complaint handling and resolution procedures, in preparation for the June 2001
enforcement date for section 508. Responses to the survey were due
significantly before the June 2001 date. The statistics discussed below,
therefore, are not representative of agencies’ ability to receive and
resolve appropriately complaints by the date on which enforcement of section
508 was authorized. Rather, they reflect a relatively early snapshot of how
agencies approached this new responsibility.
B. Specific Agency Survey Questions
1. Tailored Complaint Procedures for Section 508 (Agency Question B-1)
Most agencies have tailored their 504 complaint processes to meet the needs of
section 508 complaints or have plans to do so.
Aencies that have not yet done so should examine their existing
complaint-handling processes applicable to complaints filed under section 504
for federally conducted activities and tailor them to the section 508 context
As explained previously, when it amended section 508, Congress required
agencies to follow the complaint procedures already established under section
504 for resolving complaints of discrimination in programs conducted by federal
Agencies may find that their existing section 504 complaint processes for
federally conducted activities do not adequately address a variety of issues
that arise under section 508. For instance, some agencies handle section 504
complaints on a local basis, reflecting a management structure of local control
over local programs. The same agencies may, however, exercise strong
centralized control over EIT procurements. Under this bifurcated management
model, a section 508 complaint alleging that the centralized procurement
process has not sufficiently addressed section 508 concerns with respect to an
EIT procurement should be handled by a central office, rather than a local
authority that is not involved in EIT procurement.
Additionally, many section 504 complaints filed against federally conducted
activities do not involve issues over which third parties exercise much
control. For instance, if an agency fails to provide effective communication
upon request to a member of the public attending an agency-operated conference,
and no defenses are applicable, the individual’s dispute would be
directly with the agency. In contrast, many section 508 complaints will likely
implicate a particular vendor’s product. For instance, an employee may
allege that certain features of a software product bought by the agency can be
operated only through manipulation of a computer mouse, in violation of section
1194.21(a) of the Access Board’s Standards. If the agency attempts to
resolve this complaint without involving the software vendor in the process, it
forgoes an opportunity for the company’s software engineers to propose a
technological solution. The company may never learn that there has been a
problem (that may or may not have been easily redressed), until the next time
it responds to an agency’s RFP and is informed that its products did not
meet performance expectations. Agencies should carefully consider how they will
handle section 508 complaints, especially given the complaint-resolution
dynamics inherent to issues that involve multiple parties.
The Department asked each agency, “Has your agency examined its existing
complaint-handling processes applicable to complaints filed under section 504
for federally conducted activities and tailored them to the section 508
context?” (Agency Question B-1)
Six of 18 large agencies (20.03%*) and 2 of
20 mid-sized (15.63%*) agencies described
themselves as prepared to handle incoming section 508 complaints by the date of
their response. A larger proportion of smaller agencies chose this response,
including 10 of 21 small agencies (47.83%*)
and 7 of 18 very small agencies (42.94%*).
More agencies indicated that while they did not (as of the date of their
response) have an appropriate set of policies and procedures in place to handle
section 508 complaints as they arise; they have established a timetable for
tailoring their existing complaint processes to the section 508 context. These
include 12 of 18 large agencies (79.97%*); 14
of 20 mid-sized agencies (71.70%*); 7 of 21
small agencies (39.08%*); and 4 of 18 very
small agencies (25.19%*).
Some agencies – including a third of the very small agencies –
indicated that, at least as of the date of their response, they had neither
developed an appropriate set of policies and procedures to handle section 508
complaints, nor had they established a timetable for tailoring their existing
complaint processes to the section 508 context. These include none of the large
agencies; 4 of 20 mid-sized agencies (12.67%*);
4 of 21 small agencies (13.09%*); and 7 of 18
very small agencies (31.87%*).
A strong majority of agencies indicated that they had tailored their complaint
resolution process to the section 508 context or had established a timetable
for doing so. While a significant number of very small agencies had not done
so, this observation may be a reflection of the relative lack of formality in
administrative processes, generally, among very small agencies.
2. Alternate Dispute Resolution (Agency Question B-2)
Most agencies are familiar with alternative dispute resolution (ADR)
Agencies should attempt to resolve all section 508 complaints as amicably and
informally as possible, using mediation or other methods of alternative dispute
resolution where appropriate, in their existing administrative complaint
One of the best ways to resolve section 508 complaints is through alternative
dispute resolution (ADR). Over the last several years, ADR has become an
increasingly popular way to avoid costly litigation and resolve disputes in a
much more timely manner. For instance, arbitration allows multiple
parties to provide their perspective to an impartial adjudicator. An even less
formal process is mediation that brings the parties before a neutral
third-party mediator who facilitates communication between the parties to
assist them in identifying and implementing a resolution of disputes. It works
best when the mediator has been trained in the legal requirements of the law
and possesses specialized knowledge about the issues presented. The Department
has had tremendous success with mediation, resulting in the equitable and
efficient resolution of disputes, saving thousands of taxpayer dollars while
achieving meaningful compliance with the Americans with Disabilities Act.
Successful mediators produce “win-win” results.
The Department believes that mediation may play an important role in resolving
complaints under section 508. Because mediation is an informal process, any
interested parties or neutral experts may be consulted or “brought
in” to help resolve the complaint at a very early stage. In resolving
section 508 complaints, the parties to the mediation have some control over
choosing the participants and may wish to involve a representative from the
agency’s program office who requested the procurement, someone from the
agency’s own technology staff, the vendor, and, on occasion, an assistive
technology vendor, if the complainant alleges that the EIT interferes with his
or her assistive technology, such as a particular model of screen reader.
Mediation facilitates opening the lines of communication between the agency and
the person with a disability. Full communication is often needed to resolve a
section 508 complaint, as the technological problems at issue may be complex.
It may be desirable, on occasion, to invite advocacy groups for persons with
disabilities to suggest possible solutions or engage in the testing of
Prior to mediation, agencies may wish to also consider expedited processing of
complaints, including contacting the vendor or systems integrator at the
earliest possible stage to determine whether a problem can be resolved quickly
and easily. Although vendors and systems integrators are not formally included
in the complaint resolution process, they can play an important role. Industry
representatives have expressed their concern that a complaint could harm the
credibility of the vendor or systems integrator who supplied the product or
service. Accordingly, agencies may consider allowing vendors and systems
integrators to have the opportunity to help clarify how their products meet the
section 508 standards. For instance, vendors and systems integrators should
also have the chance to explain the state of scientific and engineering
capacities at the time of procurement, because their products or services may
have been the best available at the time; thus, an agency procuring such a
product would not have violated section 508, even if more accessible products
were available later. Offering industry a chance to participate early in the
complaint process makes sense because the vendors and system integrators have
the technical expertise to address the issues raised in the complaint.
The Department asked, “Has your agency incorporated Alternative Dispute
Resolution (ADR), such as mediation or arbitration, into your existing
administrative complaint resolution processes?” (Agency Question B-2)
Many agencies indicated that their existing complaint processes include some
form of alternative dispute resolution (ADR). These include 11 of 18 large
agencies (29.64%*); 11 of 20 mid-sized
agencies (50.89%*); 16 of 21 small agencies
(79.87%*); and 9 of 18 very small agencies
A strong majority of large agencies and a smaller number of agencies in other
size categories have some components that have incorporated ADR principles into
their complaint resolution procedures, while others have not. These include 6
of 18 large agencies (69.98%*); 6 of 20
mid-sized agencies (26.13%*); 3 of 21 small
agencies (13.89%*); and 3 of 18 very small
Relatively few agencies have taken no steps to incorporate ADR principles into
their complaint resolution procedures. These include 1 of 18 large agencies
(0.38%*); 3 of 20 mid-sized agencies (22.99%*);
2 of 21 small agencies (6.24%*); and 6 of 18
very small agencies (26.56%*).
The data suggest that a strong majority of agencies have incorporated –
or have established a timetable to incorporate – ADR techniques into
their complaint resolution procedures. Thus, agencies should be well-equipped
to use mediation techniques in helping to resolve their more difficult section
3. Outreach and Information Dissemination (Agency Question B-3)
Most agencies widely disseminate information about filing section 508
complaints or have plans to do so.
Agencies that have not yet done so should instruct members of the public and
employees how to file administrative complaints under section 508.
When individuals with disabilities do not know how (or with whom) to file
administrative complaints under section 508, agencies, potential complainants,
and industry are negatively affected:
are more likely to face lawsuits if individuals do not know that other, less
formal, dispute resolution avenues are open to them to redress perceived
violations of section 508. Facilitating the ability of individuals to file
administrative complaints will also help agencies monitor their efforts to
comply with section 508 and avert further problems with the same products or
Individuals with disabilities
must make a choice among foregoing an opportunity to assert their rights when
they believe an agency has violated section 508, filing an expensive and
time-consuming lawsuit, or filing an administrative complaint in the wrong
format or with the wrong office when they are unfamiliar with the form or
manner in which section 508 complaints should be filed.
Members of industry
potentially miss out on the opportunity to participate in an informal process
that can serve as a valuable trouble-shooting mechanism for them, if
individuals provide no notification of problems with products or services that
could potentially be remedied or, alternatively, resort to federal court where
industry may not become party to a lawsuit. (Section 508 is only enforceable
against the agency, not the EIT manufacturer, designer, or vendor.)
The Department asked, “Has your agency widely disseminated instructions
to the public and to employees regarding how to file administrative complaints
under section 508?” (Agency Question B-3)
Relatively few agencies have widely disseminated instructions to the public and
to employees regarding how to file administrative complaints under section 508.
These include 3 of 18 large agencies (19.07%*);
1 of 20 mid-sized agencies (1.96%*); 0 of 21
small agencies (0.00%*); and 2 of 18 very
small agencies (12.44%*).
Most agencies have not yet widely disseminated instructions to the public and
to employees regarding how to file administrative complaints under section 508,
but have established a timetable for doing so. These include 14 of 18 large
agencies (17.80%*); 15 of 20 mid-sized
agencies (85.37%*); 13 of 21 small agencies
(65.83%*); and 10 of 18 very small agencies
Some agencies have no plans to widely disseminate information regarding how to
file section 508 administrative complaints. These include 1 of 18 large
agencies (63.13%*); 4 of 20 mid-sized
agencies (12.67%*); 8 of 21 small agencies
(34.17%*); and 6 of 18 very small agencies
The data suggest that when agencies submitted their responses to this question,
before June 2001, most agencies had either already begun advertising how
individuals with disabilities should file administrative complaints or had
established timetables for doing so. A significant minority of agencies,
however, had no plans to do so.
C. Key Recommendations
As noted previously, the complaint resolution process for section 508 should be
tailored from the agencies’ section 504 complaint process, using as
informal a process as quickly as possible. To facilitate this process, the
Department’s most important recommendations are summarized below:
Vendors and systems integrators should be provided adequate opportunities to
provide technological solutions during the complaint resolution processes.
The Department of Justice, in consultation with the Interagency Disability
Coordinating Council (IDCC), should issue model complaint resolution policies
and procedures for section 508.
GSA, the Access Board, the Department of Justice, and the EEOC should develop a
mediation program – with mediators specially trained in section 508
issues – and make the program available to all agencies for resolution of
section 508 complaints.
All agencies should post their section 508 administrative complaint processes
on their Internet and intranet sites, as well as prominently in equal
employment opportunity handbooks and other appropriate publications.
* This is a weighted value measuring the number of full-time employees in these agencies, compared with the total number of persons employed full-time by agencies in this size category.
1 While section 508 is only enforceable for EIT procured on or after June 21, 2001, agencies should consider all informal complaints alleging that EIT is inaccessible to people with disabilities, regardless of the date on which the EIT was acquired or developed in-house in light of their obligations under sections 501 and 504 of the Rehabilitation Act.
2 In addition to administrative complaints, individuals with disabilities may file lawsuits in federal district court for violations of section 508. The remedies available in court proceedings are defined by sections 505(a)(2) and 505(b) of the Rehabilitation Act, 29 U.S.C. §§ 794a(a)(2) and 794a(b), and include injunctive relief and attorneys’ fees, but do not
include monetary damages. See Lane v. Pena, 518 U.S. 187 (1996).
3 However, agencies have additional longstanding obligations that are enforceable under sections 501 and 504 of the Rehabilitation Act. Some of these obligations may be triggered when EIT “maintained, used, or developed” by
federal agencies is not accessible. For this reason, if individuals file
complaints pertaining to EIT acquired or developed before June 21, 2001,
agencies should review the allegations to determine if they more properly
allege violations of sections 501 or 504 of the Rehabilitation Act. Some agency
responsibilities under sections 501 and 504 may become easier to meet once an
agency has begun replacing inaccessible EIT with accessible EIT during the
normal course of business.
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Acting Assistant Attorney General
Civil Rights Division
Telephone Device for the Deaf (TTY) (202) 514-0716