Section 508 Comes to the Forefront

February 2023 was a big month for Section 508 of the Rehabilitation Act. After congressional hearings and a damning report from Senator Casey’s office, on February 21, 2023, the U.S. Department of Justice (DOJ) released its long-awaited report on Section 508 compliance by federal agencies. Meanwhile, on February 17, 2023, the U.S. Court of Appeals for the D.C. Circuit held that federal employees can sue to enforce Section 508 when the technology they need to use for their jobs is inaccessible. The DOJ report indicates that there is a great deal of work to do, but the D.C. Circuit decision provides a pathway for getting the work done.

Section 508 of the Rehabilitation Act requires federal agencies to ensure all the information and communication technology they purchase, develop, maintain or use is accessible to people with disabilities in compliance with the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA. The DOJ is required to report on progress across federal agencies to comply with Section 508 every two years. However, the last such report issued by the DOJ was in 2012.

The DOJ report just issued shows that agencies are largely not complying with their obligations – even though the report is based primarily on self-reported data not independently verified, it is clear that federal technology remains inaccessible, even decades after Section 508 was passed.

The data on the accessibility of internet and intranet sites and downloadable documents is illustrative. The reviewed agencies conducted primarily automated testing of various of their websites and found that, of a total of 22 million internet pages, 1 in 10 were not conformant with the WCAG standards. One problem with this data is that it is not statistically significant – there is no data regarding what percentage of total federal web pages were tested. In addition, some agencies (16%) tested 50 or fewer pages of their websites, undermining the validity of the sample. Another problem is that automated testing only reflects a small portion of the standards (25-30%). In addition, importantly, removing one agency’s test results from the dataset lowers the conformance level to 70% – 3 in 10 websites being inaccessible. Thus, it is clear that this average is not reflective of actual agency performance – a few agencies are doing well and others are abysmal.

The data are even worse for employee-facing (“intranet”) websites. Only 41% of the intranet pages tested were conformant. And 12.5% of agencies did not test their intranet pages at all.

Finally, document downloads from federal websites were shockingly inaccessible. The vast majority of the top 10 agency downloads are PDF documents and the majority of those – over 2/3 – were inaccessible. Most of those were untagged PDFs, meaning they have no markup information at all, making them completely inaccessible.

All this is the result of a lack of attention paid to Section 508 compliance – in terms of resources and measurement of outcomes. The data in the report shows that many agencies far overestimate the maturity and resources of their Section 508 programs. 7 agencies reported that their Section 508 programs met the highest standard of maturity – “Measured.” 12 reported the second-highest level – “Resourced.” 14 reported their programs were at the “Planned” level. And only 1 reported that its program was “Ad Hoc.” Yet 20 of the 34 agencies reported a lack of sufficient data for decision making. And all but 6 agencies reported that they had less than 50 staff assigned to their program, with 14 reporting fewer than 25 and 10 not reporting at all. 2 reported having only 1 FTE. With so little staff, it seems unlikely a program could qualify as “Resourced” or “Measured,” or even “Planned.”

But all is not lost. Some courts had held that federal employees could not sue to challenge violations of Section 508 by their federal employers. Instead, those courts had said employees could only pursue remedies under Section 501, which allows reasonable accommodations, without fixing the inaccessible technology at the heart of the violation. On February 17, the D.C. Circuit, in Orozco v. Garland, made clear that this is not the case and that federal employees may enforce their right to accessible technology under Section 508. Without such a “private right of action” federal employees had to rely on human readers or interpreters for inaccessible technology and videos even though accessible technology could be independently usable by employees with disabilities.

Mr. Orozco is an intelligence analyst for the FBI. He is blind and uses screen reader software which converts visual screen information into synthesized speech or braille. He filed a complaint with the agency that much of the FBI software he needed to use for his job was not properly coded to be accessible by a screen reader. The agency treated his complaint as an employment discrimination complaint under Section 501 instead of a technology complaint under Section 508 and dismissed the complaint because the agency was providing reasonable accommodations. He filed suit under Section 508 and the district court dismissed, ruling that, because Section 508 adopted the enforcement rights and remedies of Section 504 applicable to federal providers of funding assistance, agencies could only be sued in their capacity as funding assistance providers. Because the FBI was Mr. Orozco’s employer and was not acting as a funding provider, the court found there was no private right of action for employees to sue their federal agency employers under Section 508.

The D.C. Circuit reversed, noting that the district court’s analysis would mean no one would be able to sue a federal agency under Section 508 for its inaccessible technology. The Court held that Section 508 incorporated Section 504’s procedures, but not the limitations on who could sue because Section 508 provided its own definition of who could sue (any “person aggrieved”). Reading it as the district court had would leave no one capable of enforcing Section 508 and “[r]eading a statute expressing authorizing ‘civil actions’ to authorize no civil actions would be to render that provision a nullity.”

Both of February’s Section 508 developments provide some hope that Section 508 implementation may finally move forward through a combination of transparency, shame, and legal action.