SECTION 102(b) REPORT: Electronic Information Systems
and Report on the Applicability to the Legislative Branch of Section
508 of The Rehabilitation Act of 1973, as Amended
Submitted by the Board
of Directors of the Office of Compliance Pursuant to Section 102(b)
of the Congressional Accountability Act of 1995, 2 U.S.C. 1302(b)
The Board of Directors ("the Board") is charged
with monitoring Federal law relating to terms and conditions of
employment and access to public services and accommodations. The
Congressional Accountability Act instructs the Board to report to
Congress biannually: (1) whether or not those provisions are applicable
to the Legislative Branch; and (2) whether inapplicable provisions
should be made applicable to the Legislative Branch. Section 102(b)(1)&(2)
of the Congressional Accountability Act (CAA), (2 U.S.C. 1302(b)(1)&(2)).
However, the CAA does not prohibit the Board from reporting to Congress
on an interim basis, in appropriate circumstances, when such a report
would best effectuate the purposes of the statute.
508, Rehabilitation Act Amendments of 1998
The Board's December 31, 2000 Report did not
address certain 1998 amendments1 to section 508 of the
Rehabilitation Act of 1973 (29 U.S.C. 794d), which subsequently
were implemented by Executive Branch regulation in June 2001.2
The essence of these amendments requires that Executive Branch agencies
provide their disabled employees and disabled members of the public
with access to an agency's electronic data and information. For
example, visually impaired persons must be able to utilize agency
web sites through software that converts visual information to an
effective audio format. In those rare instances where such compliance
would impose an undue burden on an agency or department,
section 508 permits delivery of those services in alternate manner.
Section 508 does not apply to the employing offices covered by the
CAA, or to the Congressional instrumentalities GAO, GPO, or Library
The section 508 amendments originated in Senate
Bill S. 1579. The Labor and Human Resources Committee's Report articulated
that this legislation stemmed primarily from the need to "reestablish
and realign the national workforce development and training system
to make it more user-friendly and accessible." Sen. Rept. 105-166
at 2 (Mar. 2, 1998). Thus, the legislation was primarily perceived
as a vocational rehabilitation and training matter. However, there
is no doubt that the particular purpose of the proposed amendments
to section 508 was to:
require each Federal agency to procure, maintain,
and use electronic and information technology that allows individuals
with disabilities the same access to information technology as
individuals without disabilities. Id. at 58.
The section 508 amendments require that employees
and the general public, irrespective of disability, have comparable
access to electronic information systems. The Senate proposal
was incorporated as part of the Senate amendments to H.R. 1385,
the Workforce Investment Act of 1998 and largely adopted in the
III. The Office's
Existing Efforts to Enhance Electronic Information Access under
the Americans with Disabilities Act of 1990
The Office of Compliance already maintains an
active role regarding employee accessibility to electronic information
systems through the requirements of the Americans With Disabilities
Act of 1990 (ADA), which is applied to employing offices of the
Congress in the Congressional Accountability Act ("Act"). Section
201(a) of the Act (2 U.S.C. §1311(a)) states, in relevant part,
that "[a]ll personnel actions affecting covered employees shall
be made free from any discrimination based on . . . (3) disability
within the meaning of . . . sections 102 through 104 of the . .
Section 210 of the Act (2 U.S.C. §1331)
applies the ADA's public access requirements to employing offices,
and authorizes ADA court proceedings regarding alleged violations
by GAO, GPO, and the Library of Congress. The executive branch regulations
implementing the public access provisions of the ADA have included
the requirements at 28 CFR §35.160 that:
(a) A public entity shall take appropriate steps
to ensure that communications with applicants, participants, and
members of the public with disabilities are as effective as communications
(b)(1) A public entity shall furnish appropriate
auxiliary aids and services where necessary to afford an individual
with a disability an equal opportunity to participate in, and enjoy
the benefits of, a service, program, or activity conducted by a
28 CFR §36.302 also requires in relevant
(a) General. A public accommodation shall
make reasonable modifications in policies, practices, or procedures,
when the modifications are necessary to afford goods, services,
facilities, privileges, advantages, or accommodations to individuals
with disabilities, unless the public accommodation can demonstrate
that making the modifications would fundamentally alter the nature
of the goods, services, facilities, privileges, advantages, or accommodations.
. . .
In 28 CFR §36.303, the concept of "auxiliary
aids and services" is set forth as one form of "reasonable accommodation":
(a) General. A public accommodation shall
take those steps that may be necessary to ensure that no individual
with a disability is excluded, denied services, segregated or otherwise
treated differently than other individuals because of the absence
of auxiliary aids and services, unless the public accommodation
can demonstrate that taking those steps would fundamentally alter
the nature of the . . . services . . . being offered or would result
in an undue burden . . . .
(b) Examples. The term 'auxiliary aids
and services" includes
(1) Qualified interpreters, note takers, computer-aided
transcription services, written materials, telephone handset amplifiers,
assistive listening devices, assistive listening systems, telephones
compatible with hearing aids, closed caption decoders, open and
closed captioning, telecommunications devices for deaf persons (TDD's),
videotext displays, or other effective methods of making aurally
delivered materials available to individuals with hearing impairments;
(2) Qualified readers, taped texts, audio recordings,
Brailled materials, large printed materials, or other effective
methods of making visually delivered materials available to individuals
with visual impairments; . . . .
(c) Effective communication. A public
accommodation shall furnish appropriate auxiliary aids and services
where necessary to ensure effective communication with individuals
These ADA regulations, already promulgated by
the Attorney General pursuant to Title II and Title III of the ADA,
and in use in the executive branch, were among those which the Board
of Directors of the Office of Compliance submitted to the Senate
on January 7, 1997 for final adoption as regulations under the Congressional
Accountability Act. The same proposed regulations were submitted
to the House two days later. Congress did not approve these proposed
regulations. Consequently, pursuant to section 411 of the CAA (2
U.S.C. §1411), the Executive Branch regulations became applicable
"by default" to all employing offices under the CAA.
In December, 1998, the General Counsel of the
Office of Compliance submitted a Report on Inspections for Compliance
with the Americans with Disabilities Act, as required by section
210(f)(2) of the CAA (2 U.S.C. §1331(f)(2)). The Report outlined
the requirements of the ADA, including the fact that "[t]he ADA
requires that aids to communication, called auxiliary aids, be furnished
to persons with disabilities when necessary for effective communication."
Id. at 8. The Report (at 16) also highlighted the role of electronic
communication in this effort: Legislative Information on the
Internet A large amount of legislative information is now available
on the Internet. The Library of Congress's Thomas site (http://www.loc.gov),
for example, has the text of bills and information about their status;
copies of the Congressional Record; committee schedules, reports,
and selected hearing transcripts; House and Senate Roll Call Votes;
and links to other sites with legislative information. Most Senators
and Members of the House of Representatives also maintain web sites
as a means of communicating with their constituents.
Persons with disabilities are often avid users
of the Internet and other electronic information services. In addition
to making legislative information readily available to individuals
with hearing or mobility impairments, the Internet also serves people
who are blind. Text on the Internet can be read aloud by a computer
equipped with a speech synthesizer and text-to-speech software or
can be converted to a Braille format.
The usability of the web site for a person who
is blind depends on its design. For example, if image maps are used
on a Member's web site, there should be an alternate method of selecting
options so the text-to-speech software can process the information.
Unless this is done, it will be difficult or impossible for a blind
user to get access to information on the site. . . .
In the past several years, the Office staff has
also responded to a number of inquiries from employing offices about
the 1998 section 508 amendments to the Rehabilitation Act. The Office
has informed offices regarding the section 508 required amendments
in the Federal Acquisition Regulation (FAR), and has further explained
that "the public access provisions of the CAA do not apply section
508 of the Rehabilitation Act to the entities of the Legislative
Branch . . . ."
Because the CAA does not give the Office or its
General Counsel authority to require that electronic information
systems meet applicable accessibility standards absent a specific
complaint from an individual with a particular disability, our ADA
enforcement activities - as distinct from our educational activities
- have been necessarily restricted and reactive rather than pro-active.
IV. The Impact
of Section 508's Implementing Regulations
On December 21, 2000, the Architectural and Transportation
Barriers Compliance Safety Board published its final regulations
including "standards setting forth a definition of electronic and
information technology and the technical and functional performance
criteria necessary for such technology to comply with section 508."
See note 2 supra. The effective date of those regulations
was February 20, 2001. The final amendments to the Federal Acquisition
Regulation implementing section 508 were published on April 25,
2001, and went into effect as of June 25, 2001.6 There
now exists a web site concerning section 508 standards, issues,
and developments in the executive branch: www.section508.gov. Individuals
with specific questions are encouraged to visit that site.
There are substantial differences between the
standards mandated by Title II of the ADA and by section 508 of
the Rehabilitation Act. Although the two regulatory schemes overlap,
there is little question that section 508 applies significantly
more stringent technical requirements for electronic information
technology accessibility. While the ADA requires that public entities
-including employing offices under the CAA - provide reasonably
equivalent access to information, the methodology for delivering
that access remains flexible. Thus, for example, if a sight impaired
employee or member of the public cannot access material on an employing
office's web site, under ADA that office can satisfy its responsibility
to either individual by having the relevant material read to that
person. Under section 508, however, an agency of the executive branch
must offer technology through its web site that allows all individuals,
with or without disabilities, to obtain the information directly
through the site itself. For instance, an agency must upgrade its
site with a capacity to reformat the information for sight impaired
individuals by means of a "screen reader," which translates the
visual material on a computer screen into automated audible output.7
Thus, section 508 requires that the means to access information
exist within the electronic medium itself.
Consequently, this Office's existing authority,
confined to enforcement case-by-case of the ADA requirements and
the provision of general information about section 508, does not
fully effectuate the public policy goal of the section 508 amendments.
The Office, therefore, wishes to amplify its
December 31, 2000 Report to Congress by reporting that the legislative
branch is not mandated to meet the higher level of electronic information
accessibility which Congress requires of the executive branch pursuant
to section 508.
V. The Recommendation
of the Board of Directors
When the section 508 amendments were enacted
as part of the Workforce Investment Act of 1998, much if not most
of the technology necessary to carry out its substantive mandates
did not exist. Indeed, even at this stage, some in the electronic
information community consider fully compliant technology to be
non-existent. In any event, the Executive Branch is fully engaged
in reaching section 508 compliance. Furthermore, both the Library
of Congress and the Government Printing Office, each of which maintains
extensive and heavily visited web sites
(GPO operates approximately 30 web sites for
other executive and legislative branch agencies), have announced
that they are proceeding voluntarily to achieve section 508 compliance.
However, absent Congressional action, universal legislative branch
electronic information accessibility will remain optional, and not
a legal requirement.
The Congress commissioned this Board to monitor
and comment on all laws which concern "access to public services
and accommodations." This responsibility of the Board helps ensure
that the Legislative Branch is kept apprized regarding advances
in access to electronic information technology, and is advised "whether
such provisions should be made applicable to the legislative branch."
Pursuant to that mandate, the Board of Directors
of the Office of Compliance recommends that the Congress enact amendments
to sections 201 and 210 of the CAA to incorporate the substantive
employee access and public access requirements of section 508 of
the Rehabilitation Act of 1973 for all CAA-covered employing offices.
We further suggest that the Office's existing section 401 and section
210 regulatory and enforcement authorities covering both employee
and public access to electronic information systems be extended
to include section 508 substantive requirements. Finally, we suggest
that section 508 requirements regarding employee and public access
also be applied to the Government Printing Office, Government Accounting
Office, and Library of Congress.
The Office of Compliance stands ready to participate
in the coordination of section 508 training and education for those
in Congress and in the instrumentalities who are responsible for
the maintenance and development of electronic information systems.
* * * * *
This Supplemental Section 102(b) Report is also
available on the web site of the Office of Compliance, at www.compliance.gov.
105-220, 112 Stat. 1202, §408(a) (Aug. 7, 1998).
2 65 FR 80500 (Dec. 21, 2000), codified
at, 36 CFR part 1194 (2001).
3 The CAA applies the Americans with
Disabilities Act ("ADA") directly to these instrumentalities. Some
of the other statutes referenced in the CAA, such as Occupational
Safety & Health Act ("OSHA") and the Family Medical Leave Act
(" FMLA"), are applied to GAO and the Library of Congress through
the CAA, as regulated by the Office of Compliance. The Office has
no regulatory authority of any kind with respect to GPO.
4 H. Conf. Rept. 105-659, 105th Cong.,
2d Sess. (July 29, 1998).
5 Section 201 of the CAA also applies,
for purposes of proscribing employment discrimination, the meaning
of "disability" as set forth in section 501 of the Rehabilitation
Act. However, section 508 of the Rehabilitation Act is a separate
and free standing provision and is not incorporated into the CAA
simply by reason of the application of section 501.
6 66 FR 20893 (Apr. 25, 2001), codified
at, 48 CFR part 39 (2001).
7 This document is not the appropriate
venue for any extensive technical description of the differences
between section 508 and ADA requirements.