Reprinted with
permission from the August 2001 issue of Contract Management magazine,
published monthly by the National Contract Management Association in Vienna,
VA. For more information about NCMA or CM magazine, visit www.ncmahq.org.
About the
authors: James J.
McCullough is a partner, and Jonathan S. Aronie and Abram J. Pafford are
associates in Fried, Frank, Harris, Shriver & Jacobson’s Government
Contracts Practice. Send comments on
this article to cm@ncmahq.org.
SECTION 508
ACCESSIBILITY: The “Undue Burden” Exception
Section 508 of
the Rehabilitation Act requires government agencies to provide access to
electronic and information technology for persons with disabilities. The provision’s undue burden exemption
ensures that agencies can also carry out their other public obligations.
By James J.
McCullough, Jonathan S. Aronie, and Abram J. Pafford
On April 25,
2001, the Civilian Agency Acquisition Council and the Defense Acquisition
Regulations Council issued final amendments to the Federal Acquisition
Regulation (FAR), implementing Section 508 of the Rehabilitation Act
of 1973 (Rehabilitation Act).[1] Section 508 of the Rehabilitation Act, which
became law in 1998, requires that the government take reasonable steps to
ensure that persons with disabilities have access to electronic and information
technology utilized by government agencies.
The recent amendments to the FAR are meant to guide agencies and
contractors in complying with the Electronic and Information Technology
Accessibility Standards developed by the Architectural and Transportation
Barriers Compliance Board (Access Board) and published on December 21, 2000.[2]
The final FAR
amendments address these accessibility standards for “electronic and
information technology” (EIT). EIT
includes information technology as well as “any equipment or interconnected
system of subsystem of equipment that is used in the creation, conversion, or
duplication of data or information.”[3] The FAR rule requires that federal
agencies developing, maintaining, or procuring EIT ensure that the technology
being procured provides federal employees and members of the public with
disabilities access to and use of data comparable to access and use enjoyed by
non-disabled persons.[4] An exception is made, however, for situations
where compliance imposes an “undue burden” on the federal agency. The FAR does not define undue burden
except to indicate that it means “a significant difficulty or expense.”[5] In determining whether an undue burden
exists, one must consider 1) the difficulty or expense of compliance; and 2)
the agency resources available for which the supply or service is being
acquired.
The proposed rule
amending the FAR to implement the Section 508 accessibility requirements
was issued on January 22, 2001.[6] Prior to final rule, the lack of a clear
definition for undue burden prompted several reviewers to request additional
guidance on the subject. The FAR
Council declined to do so, indicating that “substantial case law exists on this
term, which comes from disability law,” and instead directed parties to the
preamble to the Access Board’s December 2000 accessibility standards for
additional guidance.[7] Against this background, it is clear that to
understand the meaning of undue burden, one must explore the history of the
term, in light of how it has evolved and been applied in the context of
disability law over the past several decades.
A
Short History
Section 504 of
the Rehabilitation Act of 1973 prohibits discrimination against individuals
with disabilities and exclusion of individuals with disabilities from
participating in any program or activity that receives federal financial
assistance or is conducted by the federal government. The original provisions of Section 504 applied exclusively to
federal assistance recipients and did not contain the term undue burden. Nor was the concept of undue burden included
in the first set of U.S. Department of Justice (DOJ) prototype regulations
implementing Section 504 for recipients of federal assistance.[8] The Rehabilitation Act was amended in 1978,
however, and its applicability was extended beyond recipients of federal
assistance to programs or activities conducted by executive agencies
themselves.[9]
Shortly after
these amendments, the Supreme Court reviewed the Rehabilitation Act’s
accessibility standards in Southeastern Community College v. Davis. In the resulting ruling, the Court held that
Rehabilitation Act did not mandate accessibility adjustments if those
adjustments would require a “substantial modification” to the facilities,
equipment, or program at issue.[10] The Court also noted that states could be
found to have discriminated against the disabled in situations where
adjustments could be made that would afford access “without imposing undue financial
and administrative burdens upon a State.”[11] Following the Court’s decision, the lower
federal courts began “substantial modification” and “undue financial and
administrative burdens” analysis as the guiding principles for cases brought
under the Rehabilitation Act.[12]
Notably, most of
the early Rehabilitation Act litigation focused on accessibility requirements
in federally assisted programs.
In 1984, however, the DOJ issued regulations implementing the
Rehabilitation Act’s requirements for federally conducted programs.[13] In its regulations, the DOJ set out ways to
measure appropriate compliance efforts when administering government-conducted
programs. The DOJ regulations indicated
that the accessibility standards should not be interpreted as requiring
agencies to make “fundamental alterations” in program activities.[14] Additionally, the DOJ regulations indicated
that agencies need not incur “undue financial and administrative burdens” in
complying with the accessibility standards of the Rehabilitation Act.
DOJ’s
interpretation of the accessibility standards stirred up some controversy. Several reviewers argued that the concepts
were not found in the language of the Rehabilitation Act itself. The DOJ, however, emphasized that
incorporating the “substantial alteration” and “undue burden” concepts was
necessary to properly implement Section 504 of the Rehabilitation Act as it had
been interpreted by the federal courts.[15] The DOJ also stated that the standards for
evaluating compliance with the Rehabilitation Act in the context of federally
assisted programs were meant to be identical, in most respects, to the
standards that would be used in evaluating agency compliance with respect to
federally conducted programs.[16]
DOJ did note a
distinction regarding the use of the term “undue hardship” in the regulations
implementing Section 504 for federal aid recipients. [17] Parties commenting on the DOJ regulations
for federally-conducted programs questioned the agency’s decision to use the
concept of undue burden as opposed to undue hardship in defining compliance
obligations. The DOJ responded by
pointing out that the undue burden language was drawn from the Supreme Court’s
decision in Davis and that the reference to “undue hardship” in 28
C.F.R. Part 41 was properly viewed as a “term of art” used in the limited
context of an aid recipient’s employment obligations with respect to applicants
with disabilities.[18]
Further
developments arose with respect to these concepts with the passage of the
Americans with Disabilities Act (ADA) in 1988.
The ADA built upon Section 504 of the Rehabilitation Act. Title II of the ADA, which prohibits
discrimination in the provision of services furnished by governmental entities,
provided that regulations implementing Title II must be consistent with the
preexisting DOJ regulations issued under Section 504 of the Rehabilitation Act
and applicable to federally assisted programs.[19] The preamble to these regulations indicates
that
Because
Title II of the ADA essentially extends the antidiscrimination prohibition
embodied in section 504 [of the Rehabilitation Act] to all actions of State and
local governments, the standards adopted in this part are generally the same as
those required under section 504 for federally assisted programs.[20]
Thus, the
implementing regulations for Title II indicated that public entities are not
required to take actions that “would result in a fundamental alteration in the
nature of a service, program, or activity or in undue financial and
administrative burden.”[21]
The
Undue Burden Standard
Against the
foregoing backdrop, the Access Board incorporated the concept of “undue burden”
as an exception to compliance with the new EIT accessibility standards. In describing the concept, the Access Board
made it clear that it was
·
adopting the
undue burden standard based on earlier case law and regulations implementing
Section 504 of the Rehabilitation Act (as it applied to federally conducted
programs); and
·
applying
that standard to the new EIT accessibility obligations created under Section
508 of the Rehabilitation Act in 1998.
In fact, the
Access Board’s preamble cited explicitly both the Supreme Court’s opinion in Davis
and the DOJ’s 1984 regulations implementing Section 504 of the Rehabilitation
Act for federally-conducted programs.
The Access
Board’s discussion of the undue burden standard, however, did not stop with
those references. The Access Board also
invoked Title III of the ADA, which prohibits discrimination by public
accommodations against persons with disabilities, but permits an exception
where ensuring accessibility would “fundamentally alter the nature of the good,
service, facility, privilege, advantage, or accommodation being offered or
would result in an undue burden.”[22] Reviewing the ADA’s legislative history, the
Access Board noted that while Congress indicated that the term undue burden was
derived from Section 504 of the Rehabilitation Act and the regulations
thereunder, it also said that undue burden was analogous to undue hardship as
used in Title I of the ADA, relating to discrimination in employment.[23] Thus, based on this Congressional analogy,
the Access Board borrowed the concept of “significant difficulty and expense”
from ADA’s Title I undue hardship standard, and used it to define undue burden
under the Access Board EIT accessibility standards.
At the same time,
however, the Access Board acknowledged that many other factors listed in Title
I that were appropriate considerations when determining an undue hardship in
the employment context would not be relevant under the EIT accessibility
standards relating to the initial procurement of EIT items. Interestingly, the Access Board chose not to
reference the ADA’s Title II, which adopts directly the undue burden standard
drawn from the DOJ’s implementing regulations for Section 504 of the
Rehabilitation Act.
Defining
Undue Burden
Following the
Access Board’s publication of its regulations, the FAR Council’s new
rule implementing the EIT accessibility standards adopted the undue burden
standard to evaluate whether non-compliance with the technical provisions could
be excused. As previously noted, the
standard is not defined in the final FAR rule, but the FAR
Council’s references to disability law offer direction as to where one can turn
to obtain further guidance concerning an agency’s accessibility obligations in
particular situations. The history and
evolution of the undue burden standard demonstrate that parties have several
sources to look to when analyzing whether an undue burden exists under the new FAR
EIT accessibility regulations. Because
the Access Board invoked both the Rehabilitation Act and the ADA in
introducing the concept, it appears that either of these two statutory
provisions provide appropriate authority for determining whether an agency can
properly invoke the exception.
Case law
interpreting the undue burden exception under both Section 504 and the ADA
tends to involve fact intensive inquiries into 1) the nature of the
accommodation requested by a disabled plaintiff, and 2) the resources available
to the entity from whom the accommodation is sought. This is consistent with the Access Board’s statement that an
undue burden analysis should be made on a case-by-case basis.
The FAR’s
definition of an undue burden as a “significant difficulty or expense”
obviously requires a baseline against which that difficulty or expense may be
measured. The baseline provided in the FAR
is as follows: “In determining whether
an action would result in an undue burden, an agency shall consider all agency
resources available to the program or component for which the product is being
developed, procured, maintained, or used.”[24] Notably, the ADA Title II regulations take
an analogous approach to undue burden.”[25]
In determining
how broadly to define the resources available to a program or component,
however, it should be noted that the term “available” places limitations on how
broadly the net can be cast in determining the resources to be considered. Congress often appropriates money for
specific purposes and programs; and, in many instances, particularly in the
context of the U.S. Department of Defense appropriations, Congress also limits
the transfer of funds between various programs within the same agency or agency
component. In these instances, such
funds may not be available to cover Section 508 compliance. It should be noted that the U.S. General
Accounting Office has provided extensive guidance concerning how to evaluate
the availability of Congressional appropriations.[26] When ascertaining whether an undue burden
exists, it appears that funds not available for the procurement should
not be included in an agency’s baseline budget, against which significant
difficulty or expense is measured.
Even where the
baseline budget is limited by Congressional appropriation restrictions,
however, agencies, courts, and contractors should remember that the undue
burden standard under disability law establishes an extremely high threshold
for avoiding compliance and requires something more than minor inconvenience or
increased expense.[27] Indeed, the preamble to the ADA’s Title II
regulations explicitly notes that Congress intended the undue burden standard
to be significantly higher than the standard for making “readily achievable”
modifications to certain public accommodations.[28] Therefore, agencies should not expect to
assert that compliance with the FAR’s EIT provisions is an undue burden
merely because compliance would be more expensive than non-compliance. The fact that additional costs are incurred
in ensuring EIT accessibility for disabled individuals is clearly contemplated
by both Section 508 and the Access Board’s preamble to the Section 508 EIT
regulations, and it is only in exceptional cases that such costs likely will be
found to be so significant that an agency is relieved from compliance.
Along with
assessing resources available for Section 508 compliance, evaluating whether an
undue burden exists will also involve assessing a particular procurement’s
circumstances, and the context in which a federal agency is using EIT to
provide information to the public. This
contextual inquiry is consistent with the Access Board’s case-by-case approach
to applying the new EIT provisions.
Indeed, despite comments seeking a bright-line rule, it was precisely
the need to consider such factors that appeared to drive the Access Board’s
decision to avoid a mechanical approach to undue burden analysis and refrain
from specifying particular factors or numerical percentages for determining an
undue burden. Moreover, this approach
is also consistent with other areas of disability law that incorporate the
concepts of undue burden and undue hardship.[29]
Despite the
case-by-case approach, certain factors will always be relevant to the undue
burden analysis. In procurement,
important factors may include:
·
the overall
funds available to the agency;
·
the funds
allotted for the particular program and procurement;
·
the
procurement’s goal as defined in the agency’s request for proposal (RFP) or
statement of work (SOW); and
·
the extent
to which allocating resources to Section 508 compliance would interfere with
the agency’s ability to carry out its other statutorily mandated
responsibilities.
Interested
parties, including agencies and contractors, should note that the agency is
required to thoroughly document its conclusion if it determines that an undue
burden exists.[30] Such documentation may allow courts or
enforcement authorities to “look behind” the agency’s undue burden
determination to assess both actual needs and the resources available.
Questions
Remain
Notwithstanding
the guidance regarding the meaning of undue burden that can be drawn from
current disability law, several fundamental questions remain unanswered. Many of the questions arise out of an
inherent tension between the cost of compliant products and the extent to which
those products are accessible. For
example, an agency seeking to purchase 10 high-speed copy machines may argue
that purchasing 10 machines fully compliant with FAR EIT accessibility
provisions would result in an undue burden.
In such situations, it appears that agencies have several options
available. One option would be to
purchase a smaller number of fully compliant copy machines. A second option would be to purchase 10
machines, with full accessibility features on some and few accessibility
features on others. A third option
would be to purchase 10 machines, with each machine possessing a moderate
number of accessibility features, but falling short of full compliance as
defined by the FAR and the Access Board. It remains to be seen how such options will be treated by courts
and agency officials charged with ensuring compliance with the Section 508 EIT
accessibility provisions.
Notwithstanding
the unanswered questions, Section 508 is a positive step in the ongoing effort
to ensure that citizens with disabilities can enjoy full and active
participation in public life, particularly those areas of public life that
involve the activities of the federal government. Additional questions will undoubtedly arise as agencies seek to
comply with Section 508 and implement the new FAR EIT accessibility
provisions. Including the undue burden
exception helps ensure that agencies are able to promote full accessibility for
individuals with disabilities, while also effectively discharging the other
important obligations arising under their prescribed public missions.
[1] 66 Fed. Reg. 20,894 (Apr.25,2001).
[2] 65 Fed. Reg. 80,500 (Dec. 21, 2000;
publishing accessibility standards to be incorporated at 36 C.F.R. Part
1194).
[3] FAR Part 2.101.
[4] FAR Part 39.201(c).
[5] FAR 39.202.
[6] 66 Fed. Reg. 7166 (Jan. 22,
2001).
[7] The Access Board has provided additional
information in the form of a list of Frequently Asked Questions (FAQs), with
answers posted on the Section 508 Web site, www.section508.gov.
[8] C.F.R. Part 41.7. These regulations were intended to implement Executive Order
12250, which requires the DOJ to coordinate the implementation of Section 504's
requirements with respect to recipients of federal assistance. See 28 C.F.R. § 41.1.
[9] 29 U.S.C. § 794(a).
[10] Southeastern Community College v. Davis,
442 U.S. 397, 413 (1979).
[11] Davis, 442 U.S. at 412.
[12] Dopico v. Goldschmidt, 687 F.2d 644, 649 (2d Cir.
1982); American Public Transit Association v. Lewis, 655 F.2d 1272,
1277-78 (D.C. Cir. 1981).
[13] 49 Fed Reg. 35,734 (Sept. 11, 1984)
(codified at 28 C.F.R. Part 39).
[14] 28 C.F.R § 39.150(a)(2).
[15] 28 C.F.R. Part 39,
Editorial Note, at 702.
[16] 28 C.F.R. Part 39, Editorial Note, at
695.
[17] 28 C.F.R. Part 39, Editorial Note, at 703.
[18] 42 U.S.C. § 12134(b).
[19] 28 C.F.R. Part 35, App. A, at 477
(2000).
[20] 28 C.F.R. § 35.150(a)(3).
[21] 42 U.S.C. § 12182(b)(2)(A)(iii).
[22] In this regard, the ADA legislative history
parts company with DOJ’s past Section 504 regulations, in which DOJ refused to
equate “undue hardship” in the employment context with the concept of “undue
burden” as it relates to the more general accessibility requirements for programs
and activities conducted by the federal government.
[23] 28 C.F.R. Part 39, Editorial Note, at
703.
[24] Section 1194.4.
[25] Title II Preamble, 28 C.F.R. Part 35, App.
A, at 492; Pascuiti v. New York Yankees, 87 F. Supp. 2d 221, 224
(S.D.N.Y. 1999).
[26] Principles of Federal Appropriations Law, Second Edition, Vol.
II, Ch. 6-7 (1991).
[27] Civic Association of the Deaf of New York
City, Inc. V. Giulani,
915 F. Supp. 622, 636 (S.D.N.Y.
1996).
[28] Title II Preamble, 28 C.F.R. Part 35, App.
A, at 493.
[29]FAR EIT Provisions, Section
1194.2(a)(2).
[30] Supplementary information provided along
with the final FAR rule notes that agencies will have to conduct market
research at the start of a procurement, in order to ascertain the probable cost
of compliant solutions, which in turn will guide the agency in determining if
the undue burden exception applies. The
supplementary information indicates that vendor websites and the Section 508
website may be helpful tools for conducting market research. 66 Fed. Reg. 20,894, 20,895 (Apr. 25,
2001).