B. The Department Of Justice's Survey: Past And Present 1. The 1999-2000 Interim Self-Evaluations And Report

I. Executive Summary and Recommendations

Almost 13 years ago, President George H. W. Bush signed the Americans with Disabilities Act into law. This single step ushered in a dramatic change in attitude towards people with disabilities. Discriminatory actions that were once commonplace are now illegal and socially unacceptable. As a result, people with disabilities are empowered to participate meaningfully in society to an extent never before possible.

In February 2001, President George W. Bush announced his New Freedom Initiative, which makes a commitment to “tear down the remaining barriers to equality” that people with disabilities still confront today. The Initiative is designed to increase access to assistive technologies, expand educational opportunities, increase the ability of people with disabilities to integrate into the workforce, and promote increased access into daily community life.

A. Background

1. Information Technology and People with Disabilities

During this time of great social and legal progress to integrate people with disabilities fully into American life, another type of revolution has taken place. In the last decade, technology has brought enormous changes to society as a whole. Computers are no longer simply the tools of scientists, but are now as much at home in the American household as the television or microwave oven. The Internet now allows people to correspond inexpensively in real time with friends in distant parts of the world, to shop in enormous bookstores, and to even take online courses taught by our best teachers. All of these things are now possible without even leaving our homes. And the technological revolution extends far beyond the Internet. Cellular telephones have become small and affordable and, in many parts of the world, are now more common than traditional telephones. Personal Digital Assistants (PDAs) keep track of our increasingly busy schedules. Even the outdoors enthusiast is not without modern technology, as the Global Positioning System (GPS) has started to replace maps.

One challenge posed by the information revolution is to ensure that the promises of technology are available to all, including people with disabilities. Information technology can empower the lives of persons with disabilities if it is accessible, or further segregate them from mainstream society if it is not. A blind user can independently order groceries online and have them delivered to her door instead of trying to shop with an assistant at the local grocery store. A person with cerebral palsy can fill-in an online form for government services using simple keyboard strokes, while its paper equivalent may be impossible to complete manually. Innovations such as screen readers provide blind users with unrestricted access to their computers, by simply reading aloud the text that appears on a computer screen or by converting the text on a screen into the series of raised pins in a Braille display that can be read tactilely. Other technologies, such as speech recognition software, let users with limited dexterity use their voice to control their computers. Far from being the stuff of science fiction novels, the speech recognition technology now helps thousands of users with mobility or dexterity disabilities and carpal tunnel syndrome. More familiar technologies like closed captioning let deaf users understand the content of television broadcasts and multimedia presentations.

The changes that improve access for people with disabilities ultimately benefit everyone. Televisions in noisy airports, sports bars, and fitness centers display closed captioning. Some cars are now equipped with screen readers that provide audio navigation directions so harried drivers can focus on driving instead of reading paper maps. Speech recognition technology can now help those who never learned to type keep pace in a world where computers are increasingly common.

People with disabilities are among the greatest beneficiaries of this information technology revolution. In fact, many of these modern technologies that we now find useful were originally designed to provide people with disabilities basic access to the information that many of us took for granted. But, people with disabilities are also most at risk of being excluded by society’s advances, if the technological innovations are designed without considering accessibility. Today, meaningful participation in American society requires access to a full range of information technologies, including computers and the Internet. Business and communications rely more on information technology. Purchasing a product from a mail-order company has moved from mail, to the telephone, and now to the Internet. Government information and publications are becoming more difficult to find in any format other than electronic format. These benefits have created huge cost savings for both the public and private sectors, with the promise of instant access to everything 24 hours a day, 7 days a week. The information technology revolution holds the promise of eliminating many of the historic barriers to people with disabilities, but it can also create new barriers to people with disabilities if not properly designed. Section 508 of the Rehabilitation Act, 29 U.S.C. § 794d (section 508) ensures that federal agencies address these needs when they develop, procure, maintain, or use electronic and information technology (EIT).

2. Section 508 of the Rehabilitation Act: Accessibility in the Information Age

The 1998 amendments to Section 508 require federal agencies to ensure that EIT they procure is accessible to people with disabilities, unless certain exceptions apply. While the law does not directly regulate the technology industry, it creates an enormous financial incentive for manufacturers to make accessibility a key component of product design. Those who choose to ignore accessibility when they design their products are at a substantial commercial disadvantage when they market their products to federal agencies. As a result of these market forces, accessible technology is already becoming more widespread.

To implement section 508, the Architectural and Transportation Barriers Compliance Board (Access Board) published final EIT accessibility Standards on December 21, 2000, 36 C.F.R. pt. 1194. On April 25, 2001, the General Services Administration, Department of Defense, and the National Aeronautics and Space Administration published a final rule to amend the Federal Acquisition Regulation (FAR) to incorporate the Access Board’s Standards. 66 Fed. Reg. 20894 et seq. (April 25, 2001). Section 508 became enforceable and the FAR amendments went into effect in late June 2001.

Department of Transportation is Working to Establish an, "Undue Burden Advisory Board"
    The Department of Transportation has established an “Undue Burden Advisory Board.” Agencies do not have to procure EIT that meets the section 508 technical provisions if doing so imposes an undue burden– a “significant difficulty or expense.
    Update: On January 30, 2003, the Department of Transportation issued section 508 procedures that include an Undue Burden Advisory Board (UBAB), a multi-disciplinary group of section 508 experts, that reviews, analyses, recommends, and advises on complex undue burden issues, with ultimate review at the Secretarial level.

Section 508 requires federal agencies to conduct an initial self-evaluation to determine how accessible their EIT is to people with disabilities:

. . . the head of each Federal department or agency shall evaluate the extent to which the electronic and information technology of the department or agency is accessible to and usable by individuals with disabilities . . . , compared to the access and use of the technology by individuals . . . who are not individuals with disabilities, and submit a report containing the evaluation to the Attorney General.

29 U.S.C. § 794d(c). The statute also requires the Department of Justice (“the Department”) to issue an interim report to the President and Congress:

. . . the Attorney General shall prepare and submit to the President a report containing information on and recommendations regarding the extent to which the

electronic and information technology of the Federal Government is accessible to and usable by individuals with disabilities described in subsection (a)(1).

29 U.S.C. § 794d(d)(1).

Pursuant to this directive, in 1999-2000 the Department created survey instruments and led federal agencies through their first comprehensive section 508 self-evaluation. Topics covered in that self-evaluation included:

  • Web Pages;
  • Software;
  • Telecommunications;
  • Information Transaction Machines;
  • Electronic Office Equipment; and
  • Procurement Policies and Practices.

The results of agencies' self-evaluations formed the basis of an April 2000 Report, Information Technology and People with Disabilities: The Current State of Federal Accessibility , from the Attorney General to the President (2000 Report). The 2000 Report contained detailed findings of fact, analysis, conclusions, and recommendations. Many of those recommendations have been implemented across federal agencies.

For example, the 2000 Report recognized the need for increased coordination among the agencies in implementing section 508. As a result, almost every agency has designated a Section 508 Coordinator to serve as an agency “point of contact” for up-to-date information about section 508. The General Services Administration oversees these coordinators to ensure that they are knowledgeable about the latest events involving section 508. In addition, the last several months have seen the development of a Section 508 Steering Committee, comprising senior members of the key agencies involved in section 508 implementation. The Steering Committee has also overseen the development of consistent technical assistance to guide the agencies in implementing section 508.

To improve awareness of issues affecting users with disabilities, the Department recommended in the 2000 Report that agencies encourage the development of voluntary committees of persons with disabilities. As a consequence, many agencies seized this opportunity and now consult with users with disabilities — both inside and outside the agencies — to recognize issues affecting users with disabilities and to develop cost-effective solutions.

The Postal Service has embraced section 508 as the “right thing to do.”
    The U.S. Postal Service (USPS) sees its mission as serving all people, including those with disabilities. USPS web developers and program managers across the corporation are "508-aware" and have a greatly heightened sensitivity to ensuring that their EIT complies with the Section 508 Standards for accessibility. As Ray Morgan, Manager of the Technology & Standards Office in the Information Technology organization at USPS, reported:
    On June 21, 2001, over 450 of the USPS's 650 registered web sites had been made accessible. More existing sites are still being converted. The law doesn't require remediation of existing web sites; we're doing this because we want our web sites to be accessible to everyone.
    A byproduct of our internal web site registration process established to track 508 compliance is we now have the tool and cross-functional discipline to track USPS web sites in general. This will allow us to ensure that we don't have duplicate sites, and flag for elimination those sites that consume support resources but don't bring added value to the USPS or our customers.
    Persons who worked long hours in crafting USPS processes, policies, and guidelines, and bringing systems, documents, etc. into compliance all report that it's a project they feel good about being involved in. When we say "It's the right thing to do," it's not merely a slogan; postal employees working on 508 issues believe it and feel it.

Federal agencies have also adopted many of the recommendations for web pages, including testing web pages for accessibility before posting, developing agency-wide style guidelines for accessible content, posting dedicated e-mail addresses for users with disabilities, and providing special information to assist users with disabilities to access services and information available through agency web sites.

2. The Current Self-Evaluations and Report

Beginning in August 2001, and every two years thereafter, section 508 requires the Attorney General to:

    prepare and submit to the President and Congress a report containing information on and recommendations regarding the state of Federal department and agency compliance with the requirements of [section 508], including actions regarding individual complaints...

29 U.S.C. § 794d(d)(2). Congress required agencies to cooperate and to provide to the Attorney General “such information as the Attorney General determines is necessary” to assist with the biennial reports. 29 U.S.C. § 794d(e).

The Department’s 2001 survey — and this Report — do not attempt to repeat the comprehensive list of subjects included in the 1999-2000 self-evaluation and reporting cycle. In July 2000, section 508 was amended to delay the effective date for enforcement. The deadline for the Department’s Report, however, was not also extended. As a consequence, section 508 did not become enforceable and the Access Board’s Standards were not incorporated into the Federal Acquisition Regulation until late June 2001 — several days after the Department closed its 2001 survey. It would have been counterproductive for agencies to describe their experiences implementing section 508 after late June, before this Report was due to the President and Congress.

Additionally, on July 26, 2000, President Clinton issued a memorandum to the federal agencies directing them to make the programs offered through the web pages accessible to users with disabilities by July 27, 2001. Thus, the Department anticipated that agencies would be more aggressive in seeking to eliminate barriers on their federal web pages than with respect to other technologies.1

Accordingly, the 2001 self-evaluation instructions and report focused on the following areas:

  • Survey of Federal Agency Web Pages. Web accessibility is a major priority of federal agencies. Fortunately, basic information about accessible web pages has been available for several years thanks to the work of organizations like the Web Accessibility Initiative (WAI) of the World Wide Web Consortium (W3C).

  • Administrative Complaints. Executive Order 12250 vests authority for coordination of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (section 504), with the Department of Justice. The 2001 survey asked agencies how they anticipated using their existing processes for complaints under section 504. The Department expected using this information in guiding the agencies in how to process section 508 complaints consistent with their 504 regulations.

  • Other Concerns. Currently, there is much confusion about the interrelationship between sections 501 and 504 of the Rehabilitation Act and section 508. The Department is using this survey to provide additional guidance. In addition, this report provides guidance about agency-wide policies for telecommunications and information transaction machines (ITMs).

As part of the survey, the Department first developed extensive technical assistance materials that both described each survey question and gave agencies guidance on improving the accessibility of their EIT. Based on the experience in a previous survey, the Department developed a dedicated web site to collect agency information, thereby enabling both the Department and agency personnel an opportunity to assess the accessibility of their EIT. The Department’s survey was released to the agencies in January 2001, and the web site was closed in May 2001. Throughout this process, the Department of Justice provided technical assistance to assist agencies in assessing the accessibility of their EIT.

a. Web Accessibility

The 2001 survey of web pages included two distinct parts. In the first section, agencies were asked 9 general questions about agency-wide policies and practices that affect web page design and deployment. In the second section, the Department asked each agency (a subdivision within the agency responsible for separate information technology procurements and policies) to identify their 20 most popular web pages and answer a battery of questions that closely tracked the final 508 Standards. Based on this information, the Department is making a number of important recommendations, including the following:

  • Model Agency-Wide Guidelines for Web Content. Most agencies exercise control over web content and have agency-wide style and content guidelines for their web developers. This infrastructure will ensure the success of future efforts to make web pages accessible. The Access Board currently provides excellent technical assistance materials for website design and they should be encouraged to further continue their efforts. Agencies should look to this resource, together with the General Services Administration’s section508.gov website, in designing their own guidelines and should adopt policies or practices to ensure that these agency-wide guidelines are followed.

  • Better Communication About Accessibility. Agencies should post e-mail addresses for users with disabilities to request information that is inaccessible to them. Agencies should respond in a timely manner to each of these requests. In addition, agencies should post information about their plans for fixing problems in their web site and should solicit input from users with disabilities.

  • Easy Problems Should be Solved. In reviewing the data regarding specific web pages, we found that federal agency web pages are generally accessible, but still have a number of problems that interfere with accessibility. Some of these problems are relatively easy to fix. For instance, a large number of images on agency web pages do not include attributes for making them accessible to screen readers. Agencies should correct these problems as soon as possible, within the constraints of agency resources.

  • Challenge Grants to Create Incentives to Improve Accessibility of Modern Technologies. Problems exist in popular modern web technologies used to create compelling or dynamic web page content. Many of these problems may be solved with little expense, if smaller companies or assistive technology manufacturers are given assistance. History has shown that these projects may have benefits extending far beyond accessibility. Accordingly, the Department recommends development of a program for awarding “challenge grants” for the development of assistive technology solutions that will help overcome these problems.

b. Administrative Complaints

The Department’s 2001 survey asked the agencies 3 questions focused on complaint handling and resolution procedures. The Department used this information to identify important needs for resolving complaints and to assess the practicality of practices recommended by industry, government, and disability groups. The Department made several important recommendations, including the following:

  • Informal Complaint Resolution Processes. Because of the high cost and inefficiency of litigation and more formal investigative processes, agencies should make available alternate dispute resolution processes. If complaints cannot be resolved early, agencies should use mediation as an attempt to bring together all interested parties in solving the problems. The Department of Justice, General Services Administration, Access Board, and Equal Employment Opportunity Commission should develop a mediation program that can be used by the federal agencies.

  • Vendor Participation. Because manufacturers of EIT may be in the best position to know the capabilities and limitations of their products, agencies should encourage their participation at the earliest possible stages.

  • Make Complaint Process Well-Known. Agencies should post information about their section 508 complaint process on their web sites. Providing this information may help agencies solve problems more quickly and with less frustration for persons with disabilities.

c. Other Concerns

(i) Agency Policies and Practices Regarding Telecommunications and ITMs

Apart from the very detailed questions regarding web pages, the survey also asked agency-wide questions about two other forms of technology: telecommunication and information transaction machines (ITMs). Now almost ubiquitous in federal agencies, voice-mail systems and interactive voice-response systems often cause problems for deaf users because they use automated voice prompts that are difficult to navigate for those who use TTYs. TTY users calling interactive voice-response systems must call through the Relay Service and generally have to call repeatedly in order to give the Relay Service operator an opportunity to accurately convey the full menu, have the caller communicate his or her choice (or series of choices), and ultimately choose the correct touch-tones to activate the system. TTY users who call voice messaging systems are often “timed out” before they are able to leave a message through a Relay Service operator.

In stark contrast to the popularity of voice mail systems, ITMs are rarely used by federal agencies. ITMs are things like automated building directories, automated teller machines, point-of-sale machines, and many other types of machines. ITMs have the potential to create a wide variety of barriers for users with disabilities. For instance, persons who use wheelchairs may not be able to use an ITM if the controls are too high to use and the screen is too high to see from a seated position. Blind users may not be able to determine the function of the keys or the visual display on the screen. To address these problems, the Department recommends:

  • Training for Use of Relay Services, TTYs, and other Options for Communicating with Deaf Users. Agencies should train employees on the use of TTYs and on the use of relay services.

  • Agencies Should Include TTY Lines For Lines That Receive Large Call Volumes. Where agencies receive a large number of calls, they should add TTY lines to complement their existing services. The TTY telephone numbers should be prominently displayed and widely advertised.

  • Other Steps to Ensure Compatibility with TTY Lines. There are a number of other steps that agencies can take to be more “TTY-friendly,” including ensuring toll-free TTY lines are provided where non-TTY toll-free lines are provided, and ensuring that their voice- mail and interactive voice response systems are TTY compatible.

  • Agencies Should Comply with Section 508 for all Newly Procured ITMs. Agencies should ensure that ITMs procured after June 21, 2001, conform to the Section 508 Standards.

  • Agencies Should Ensure Access to Services by All ITMs. Agencies should ensure the accessibility of all services offered by their ITMs. If agencies are unable to remove barriers in their existing ITMs, agencies should provide alternate means of access to the services offered by such ITMs for users with disabilities. Where agencies take such steps, they should prominently post information on ITMs for providing such access.

(ii) Relationship Between Sections 501, 504, and 508 of the Rehabilitation Act

The Department’s Report also provides guidance on the interplay between sections 501, 504, and 508 of the Rehabilitation Act. These other two sections of the Rehabilitation Act can be generally described as:

  • Section 501 requires non-discrimination and affirmative action with respect to disability in federal employment. The non-discrimination obligation includes the requirement to provide reasonable accommodation for the known limitations of otherwise qualified individuals with disabilities.

  • Section 504 requires federal agencies to make their programs, services, or activities accessible to users with disabilities.

Agencies should be aware that even complete adherence to the Section 508 Standards will not ensure that all EIT will be accessible to all users with disabilities; both sections 501 and 504 may require an agency to take additional steps to accommodate a person with a disability. What the agency is required to do will depend on the particular circumstances and the particular disabilities of a user. Thus, 501 and 504 require a approach. As a consequence, while sections 501 and 504 may not afford users with certain disabilities exactly the same convenient level of access to information technology, they do require agencies to meet the particular needs of persons with disabilities on a timely basis.

Nevertheless, there are proactive measures that an agency can take to help meet its obligations under sections 501 and 504. For instance, an agency could post an e-mail address for users with disabilities on agency web pages. Other suggestions can be found in the Attorney General’s April 2000 Report to the President, Information Technology and People with Disabilities: The Current State of Federal Accessibility

1 Specifically, the Presidential Memorandum directed the agencies to [m]ake all programs offered on the Internet and Intranet sites accessible to people with disabilities by July 27, 2001, consistent with the requirements of [the Rehabilitation Act of 1973] and subject to the availability of appropriations and technology.

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Updated August 6, 2015

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