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.
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:
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.
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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 assistive technologies.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)
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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.
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)
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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 industry-proposed solutions.
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 (55.84%*).
- 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 agencies (17.60%*).
- 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%*).
3. Outreach and Information Dissemination (Agency Question B-3)
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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:
- Agencies 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 services.
- 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 (64.34%*).
- 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 (23.22%*).
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.
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.
Last Updated: 6/14/04>