In the last week, I've come across a few legal developments that, while they sound amazing, just seem to put us back in a place where common sense could have left us unperturbed.
Section 508 and Orozco v. Garland
First things first. Last Thursday, Laura and I had dinner with her friend and former Microsoft coworker Jamie Dean and he let me know about the D.C. Circuit's opinion in Orozco v. Garland. I have no idea how I missed this opinion from three months ago-- especially since Jack McElaney posted about it as well months ago! So, I just had to look up the case immediately and I was stunned: did anyone really think that Section 508 did not include a private right of action? Or that the second most powerful court in the country would have to fix this problem? It turns out that a lot of judges believed that people with disabilities couldn't sue under Section 508 despite its clear wording. I thought it would be interesting to see how lawyers and the courts had turned Section 508 on its head by a convoluted mishmash of byzantine legal reasoning.
Section 508 is a law that is very dear to me-- and should be to you too. While I worked at the Department of Justice, my colleague Mary Lou Mobley and I led the Department's Section 508 efforts, including helping create the original Section 508 technical standards, guiding other federal agencies as they implemented Section 508, and preparing the Attorney General's reports to the President and Congress on Section 508.
But Section 508 is also important for the rest of us because it's a hidden driving force for making a lot of our society's technology accessible. Every major software company create Accessibility Conformance Reports (ACRs) and Voluntary Product Accessibility Templates (VPATs) so they can leverage higher and higher levels of accessibility to gain a competitive advantage in procurements with federal agencies. States have adopted their own Section 508 laws and so have countries around the world because they understand that meeting the needs of their residents with disabilities means having an accessible digital infrastructure that procurement-driven laws like Section 508 makes possible. While Section 508 hasn't lived up to its full promise, I believe it's still done a remarkable job driving accessibility in our society and, with laws like the European Accessibility Act and standards like EN 301-549, the influence of Section 508 will only increase as time goes by.
But I digress.... let's get back to why Section 508 can get messed up by courts and lawyers. Section 508 requires that all electronic and information technology developed, procured, maintained, or used by the Federal government must be accessible to persons with disabilities. Specifically, Section 508(a)(1)(A) states,
(A) Development, procurement, maintenance, or use of electronic and information technology
When developing, procuring, maintaining, or using electronic and information technology, each Federal department or agency, including the United States Postal Service, shall ensure, unless an undue burden would be imposed on the department or agency, that the electronic and information technology allows, regardless of the type of medium of the technology—
(i) individuals with disabilities who are Federal employees to have access to and use of information and data that is comparable to the access to and use of the information and data by Federal employees who are not individuals with disabilities; and
(ii) individuals with disabilities who are members of the public seeking information or services from a Federal department or agency to have access to and use of information and data that is comparable to the access to and use of the information and data by such members of the public who are not individuals with disabilities.
Thus, Section 508 protects two groups of people with disabilities-- federal employees with disabilities and members of the public with disabilities-- against discrimination by federal departments and agencies. And Section 508 makes clear that discrimination means that the technology they develop, procure, maintain, or use needs to conform with the Section 508 standards developed by the Access Board.
For purposes of our discussion, however, the 1998 amendments to Section 508 also added enforcement teeth to the law by including (among other things) the following section,
Effective 6 months after the date of publication by the Access Board of final standards described in subsection (a)(2) of this section, any individual with a disability may file a complaint alleging that a Federal department or agency fails to comply with subsection (a)(1) of this section in providing electronic and information technology.
This subsection shall apply only to electronic and information technology that is procured by a Federal department or agency not less than 6 months after the date of publication by the Access Board of final standards described in subsection (a)(2) of this section.
(2) Administrative complaints
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.
(3) Civil actions
The remedies, procedures, and rights set forth in sections 794a(a)(2) and 794a(b) of this title shall be the remedies, procedures, and rights available to any individual with a disability filing a complaint under paragraph (1).
I think paragraph (f)(3) makes it clear as day that anyone can file a private lawsuit against a federal agency if they procure technology that doesn't meet the Section 508 standards.
What Congress Giveth, The Courts Taketh Away
While that language may be clear, lawyers and judges can still monkey around with its meaning. Paragraph (f)(3) of Section 508 references 29 U.S.C §§ 794(a)(2) and (b), which are part of Section 504. These sections read as,
(a)(2) The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) (and in subsection (e)(3) of section 706 of such Act (42 U.S.C. 2000e-5), applied to claims of discrimination in compensation) shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under section 794 of this title.
(b) In any action or proceeding to enforce or charge a violation of a provision of this subchapter, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.
The italicized text above makes clear that this enforcement clause is reserved for lawsuits against federal fund recipients and not federal agencies. And so, according to the logic of the district court opinion, the right to bring a private right of action is against federal fund recipients and not federal agencies. But that contradicts the fact that Section 508(a) (quoted above) applies to federal agencies (and not federal fund recipients). So, despite the fact that Congress clearly states that people with disabilities could sue federal agencies for Section 508 violations, this contradictory language meant that Section 508 did not permit private lawsuits at all! Orozco v. Garland, 2021 U.S. Dist. LEXIS 189391 (D.D.C. 2021). And, as whacky as this logic may appear, the district court in Orozco identified several other district courts that came to the same conclusion. Clark v. Vilsack, 2021 U.S. Dist. LEXIS 100260 (D.D.C. 2021); Gonzalez v. Perdue, 2020 U.S. Dist. LEXIS 46834 (E.D. Va. 2020); Latham v. Brownlee, 2005 U.S. Dist. LEXIS 3745 (W.D. Tex. 2005).
Yay for the D.C. Circuit
Thankfully, the D.C. Circuit took a more common-sense reading Section 508. Concluding that the "plain text" of Section 508 included a private right of action, the court reversed the district court. Looking to the Supreme Court's decision in Consolidated Rail Corp. v. Darrone, 465 U.S. 624 (1984), the court noted that, when bootstrapping statutes like Section 504 and Title VI together, courts should not carry forward the limitations in those statutes if the law itself makes clear who can sue or be sued.
We take Congress at its word that, when it incorporated the “remedies, procedures, and rights” set forth in another part of the Rehabilitation Act, it did that and no more. It created a cause of action to enforce the technology-accessibility requirements of Section 794d. If Congress had meant also to incorporate Section 794a’s limits on who may sue, Congress would have said so. It did not, so [Section 508's] own definition of qualifying plaintiffs—any individual with a disability who has filed a complaint about technology accessibility—controls, permitting Orozco to file suit.
Orozco v. Garland, 60 F.4th at 689.
A Plug for Mary Lou and Ken
The D.C. Circuit's opinion hopefully set right a problem created by lawyers and district court judges. The court's opinion was clear, logical, and straightforward. But the icing on the cake was the court's reference to the work that Mary Lou and I did while at Justice.
In fact, the contemporaneous Executive Branch interpretation of Section 794d was exactly the opposite of the government's current position. In 1999, just after Section 794d(f)(3) was enacted, the Attorney General interpreted Section 794d(f) to authorize "private lawsuits by employees and members of the public." Department of Justice, Information Regarding Section 508 of the Rehabilitation Act at 2 (April 2, 1999), https://www.justice.gov/sites/default/files/crt/legacy/2009/02/18/oldinfo.pdf (last accessed Feb. 8, 2023); see also Department of Justice, Executive Summary, in Information Technology and People With Disabilities: The Current State of Federal Accessibility at 11-2 (April 2000) ("Members of the public and employees with disabilities * * * may * * * file private lawsuits in Federal district court.").
Id. at 690-91. Yup, those are the reports and technical assistance that we created many years ago!
"You Can't Accommodate Your Way Out of a Bad Procurement"... Or Can You?
As much as the D.C. Circuit's opinion represents a vindication for common sense over hyper-technical lawyering, we have to remember that the D.C. Circuit is only one appellate court out of twelve. Plus, the Supreme Court may conclude differently years down the road. In the meantime, the D.C. Circuit is the most important court for matters involving federal agencies (apart from the Supreme Court, of course), and its opinion in Orozco makes a huge impact because it means that people with disabilities can sue federal agencies when agencies make bad IT procurements that don't consider accessibility.
As I talked about Orozco over the weekend with friends, I was surprised to hear that some federal agencies had already taken the position that Section 508 was unenforceable. Some agencies believed that, when they bought inaccessible technology, they could avoid liability under Section 508 by simply making individual accommodations to placate the plaintiff. After the D.C. Circuit's opinion in Orozco, however, agencies needed to actually fix the inaccessible technology that they bought and make it accessible for all users with disabilities.
Unfortunately, there may a catch here too. Remember that enforcement provision above about "civil actions"? Right above it is the section discussing "administrative complaints," which are complaints filed with the agencies. One point that the D.C. Circuit didn't address was whether plaintiffs had to first file an administrative complaint before they could sue in federal court (a concept called "exhaustion of administrative remedies"). If I were a betting man, I would say that there is a 99.9% chance that courts would agree that Section 508 requires exhaustion of administrative remedies before a lawsuit could be filed. If you were representing a federal agency facing an administrative Section 508 complaint by someone with a disability, I think the first thing I would do is to settle the case by accommodating that individual. Then, even if that person later decided to sue the agency in federal court, you would likely argue that they don't have standing to sue because the accommodation provided by the agency prevented them from having an injury in fact when the complaint was filed.
New "Dear Colleagues" Letter... What Does it Add?
Okay, my thoughts on Orozco may just represent the ramblings of a disability rights lawyer. The morning after our dinner with Jamie, however, I woke up and found an email from my colleague Kristi Avalos from Accessology (Kristi and I work together on a number of projects). Kristi gave me the heads-up about a new "Dear Colleagues" letter issued while I was asleep from the Department of Education and the Department of Justice. The letter reminds colleges and universities about the ADA and Section 504. And it also reviews some of the recent enforcement actions by both agencies. And it also reminds colleges and universities about the Department of Justice's upcoming Title II web accessibility regulations. But does it add anything new? Absolutely not.
Don't get me wrong. I'm absolutely behind reminding colleges and universities about their obligations under disability rights laws. Unfortunately, it really doesn't add anything to the discussion.
"Uh Oh" Feelings About DOJ's Title II Web Regulation
The letter, however, also mentions DOJ's upcoming Title II web accessibility regulation. It's now the third week of May and the draft regulation was supposed to come out in April. I'm now officially worried.
Why am I worried? As we know, Title II of the ADA focuses on "program access" for programs, services, and activities of public entities. In settlement agreements, the Justice Department has required public entities to make their websites conform to the Web Content Accessibility Guidelines (WCAG) 2.1 A/AA, but that doesn't necessarily mean that they would require all public entities to meet this standard. Instead, a narrower reading of Title II would require public entities to ensure that their programs, services, and activities are accessible without regard to their websites-- or public entities could just consider websites to be just one way to meet the accessibility requirement of those programs, services, and activities.
This way of interpreting Title II and web accessibility, however, ignores reality. While that view of the world may have worked 30 years ago, in today's society, the primary and often exclusive way that people access government services is through the internet. Plaintiffs know this and, without clear requirements like WCAG to meet, plaintiff attorneys have thrived for years suing public and private sector organizations-- and will keep getting rich until DOJ establishes that standard.
I believe that, when public entities rely on websites and web-based applications to support their public services, they should be presumed to be inaccessible unless the agency can show that those websites and web-based applications meet WCAG. This way, agencies have a strong incentive to focus on meeting WCAG as a safe harbor but still have the limited option to make their web-based programs accessible through alternate means (such as providing a 24-hour accessible phone line). Most importantly, however, it would give clear guidance on what design standards (i.e. WCAG) that public entities should use.
I may be crying wolf. The upcoming DOJ regulation could lay the groundwork for public entities to take WCAG compliance seriously by finally making WCAG a de facto requirement. My colleagues at Justice, however, have taken decades putting off this important issue and, I fear, they don't see web accessibility through the same lens that professionals in this field view it. Even when I was at Justice, I got the sense that web accessibility wasn't seen as a legal problem as much as a technical one. I'm afraid that if DOJ makes WCAG conformance "optional" in this way, they will fail to give organizations the clear guidance that they've been asking for over the last 20 years. To me and many others, that would be a tragic missed opportunity. The only ones who would benefit are the plaintiff's attorney who thrive on this kind of uncertainty.
How Can We Make a Difference?
There isn't much that we can do to prevent lawyers and judges from messing up a perfectly good law like Section 508. And there isn't much we can do to get colleges and universities more serious about web accessibility. But there is something that we can do about DOJ's Title II web accessibility regulation.
I get the concern from industry and the public sector: there isn't any way that they can guarantee full compliance with WCAG on their sites. I totally agree. Websites are constantly in flux and content is always changing. WCAG may be clear to experts but it can be vague and complicated to others. But that doesn't make web accessibility unworkable. Instead, organizations should honestly try to make their sites comply with WCAG. For instance, they should have their sites manually audited. And they should train their content creators how to create accessible content in their CMS systems.
Instead of making WCAG a holy grail, we should build in a failsafe mechanism. As I proposed, programs offered predominantly through the web should be presumed to be inaccessible unless they meet WCAG 2.0/2.1/2.2 A/AA. Note that this doesn't mean that they must meet WCAG. Instead, it means that the burden of proving that a program is accessible is on the agency-- such as by showing that it is available by phone or through offices easily reachable by anyone in the community. But, instead of staffing a 24/7 call center or building a ton of new offices, it may be easier to make the web pages supporting the program meet WCAG. It also gives organizations a good reason to build really robust Accessibility Statement that describes alternate ways of obtaining the same services as available through its web pages.
The most important thing that we can do, however, is to stay vigilant for the draft DOJ regulation. We need to make sure that it sets down clear guidance focusing on WCAG. While I don't love WCAG by any means, it's the standard we've got and DOJ needs to use it as our goal line.
Nothing in this post should be interpreted as legal advice or as forming an attorney-client relationship. It is offered for educational purposes only. You should always contact a qualified attorney in your area to discuss your legal rights and responsibilities.
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