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Legal issues and Section 508 compliance
This page covers important legal and policy issues. It is divided into three sections: DoD Policy update, Legal Guidance, and Meeting Notes. The advice listed below has been taken from informal discussions with attourneys familiar with
the issues involved with disability law. Take these comments as good practices guidance, but in case of doubt, consult with a legal professional
directly before acting on the advice presented here.
On 5/9/2001, several presenters from Crunchy Technologies came to demo their testing and compliance tool, PageScreamer 2.0, to
a group of Air Force webmasters. In the course of the demonstration, a number of the legal consequences were discussed.
One of the presenters was Colin Mitchell, their director of commercial sales and an attourney. He made the following points about
508 is a brand-new law. The standards for 508 compliance, as well as the technologies supportive of 508
guidelines, are a moving target. Therefore, litigation to establish what is and is not compliant will be a necessary
and unavoidable consequence. In other words, some of you out there are going to get sued, no matter what you do.
The best way to avoid/minimize damage from such a suit is to take a multi-pronged approach:
Do not even think about falling back on the "undue burden" clause, as
the standard for what is "undue burden" in the context of section 504
and other segments of the Americans With Disabilities Act has already
been established. The burden of proof will not only fall on your shoulders,
but you will write a guidepath for the plaintiff in such a case as to
exactly how to prove their case when you attempt to demonstrate undue
If you do not already have an established set of procedures for providing
alternative content for disabled users, develop it NOW, before the June
21 deadline. Having an established set of processes and procedures will
be very helpful in proving that you at least are attempting to comply
with the letter and the spirit of the law.
Double and triple-check your work when testing pages for compliance.
Do NOT let pages slip through the cracks when you are posting new content,
because 508 is not a one-day law. Once it takes effect, it becomes a continuous
responsibility for content owners, managers, and webmasters to maintain
their accessibility. All it takes is one page out of 100,000 for someone
to be able to sue.
Questions will always come up as to what is 'reasonable' (an attourney's favorite word). Reasonable will be examined in the light of
what has already been established by previous case law, and also in light of industry norms. Someone using a browser that does not support any commonly accepted industry standards
will have a more difficult time arguing that content should be made readable in their choice of browser with 24/7 accessibility than someone using reasonably modern technology.
Also, reasonable timeframes to deliver alternate content are open to examination, but if you have documented procedures in place before a lawsuit, then proof of failure to comply with
that reasonable procedure falls on the plaintiff.
Keith Thurston, Assistant to the Assistant DAA, Office of Information Technology, GSA
Terry Weaver, Director, IT Accomodation, GSA
Mary L. Mobley, Attourney, Civil Rights division, Department of Justice
Linda Nelson, Federal Acquisition Policy Division, GSA
Even though you are not responsible for section 508 violations for existing materials
(ie already existing webpages created before 6/21/01), you are still responsible for making them accessible
under section 504, which states that you must provide an accessible alternative to those pages
if you cannot make them accessible in and of themselves. This could include, for items such as graphics that are
uninterpretable in a non-visual manner (satellite maps of Washington DC, electronics diagrams,
photographs of cancer cell tissue samples compared to non-cancerous cells, etc),
providing what textual description you can othese items that makes a reasonable effort to explain these things.
In short, even though you are off the hook on Section 508 for legacy pages, you still have similar obligations under existing section 504 law.
Adobe PDF files in graphic format are NOT exempt from this alternative.
If you have files that are in PDF format that cannot be translated into screen-reader interpretable format,
you must create HTML or text-based alternatives to them.
Just putting up a sign saying "we're working on it" is insufficient. You must make reasonable accomodation to
accessibility. If you have pages that you know will not be done by the deadline of 6/21, you must provide an alternative
for disabled people to gain access to that information. One example of that is to post a phone number and/or email address
on each page that fits those criteria for someone who cannot traditionally read the page's information to use to get that
information in a format they can use.
The only pages exempt from this requirement due to national security concerns are those which directly support military
intelligence and highly sensitive information, command and control infrastructure, or other systems that have immediate
consequences for field operations. Pages NOT exempt include personnel records, budget and fiscal management, and other
logistics and support pages.
VERY IMPORTANT: neither A-Prompt, Bobby, nor the Webable tool actually prove 508 compliance.
They are valuable testing tools to help you find major problems, but simply passing their tests is not enough.
Alt tags are a good example. Bobby cannot verify how meaningful an ALT tag is, just that it exists. It is up to webmasters,
developers and content creators to make sure that the tags they provide are not only present but convey useful meaning.
A-prompt was touted though as being a superior tool to Bobby because it can be modified to set certain standards,
in effect, to learn as the 508 regulations gel further over time. A-prompt also has a feature that enables you to
log your testing and modifications results which could prove invaluable should you have to respond to a 508 request.
There is currently no such thing as "508 compliant certification". The rules for what makes 508 compliance are still a
moving target, so there is no official "certification". Another reason for this is that by establishing some kind of
"certification", whichever organization that does the certifying will become the authority and watchdog for this process
and thus remove the burden of actually performing 508 compliant design and retrofitting from the development community.
DOJ, GSA, and the Access Board do not wish to take on this burden, nor do they want the government web community to feel
they are no longer responsible for performing this task.
The Access Board's standards for 508 compliance are THE current standard to be followed by all government entities.
The W3C guidelines are useful, but just that, guidelines. If a page does not meet the Access Board requirements,
regardless of which tools approve your web design, it is NOT 508 compliant.
LOTS was said about PDF files. The newest version of Adobe Acrobat has formatting tools that can help make new documents
readable by screen readers and other access-enabling devices/software. However, the greatest caveat to this is that it
takes effort on the end-user's part to deliver this. The end-user must bring the files into PDF format as prints from some
kind of text file, be it a word-processing document, or via an OCR-type input.
A direct scan will more likely than not just render one great big jpeg file that is still meaningless to a screen reader.
There are also third-party plugins that supposedly assist in rendering new and existing graphical PDF's into screen-reader
interpretable formats. One such product is called Magellan, from a British software company. Neither they nor the other
makers nor Adobe themselves make any promises/guarantees about the success of such conversions, as noted before,
due to the graphic nature of a non-text-formatted PDF.
These notes were also taken from a meeting of the Federal Web Business Council, held on 5/24/2001. The legal opinions were expressed by Mr. Ken Nakata, of the US Department of Justice.
The "back room" exemption - this applies to systems and functions such as heating and cooling or plumbing systems in a building,
where neither the general public nor the vast majority of staff never go. Basically, there is no applicable equivalent in the IT world.
No tasks assignable to a contractor relating to IT services would fall under this clause. This would apply to products and services such as telecomm switchbox closets.
Fundamental Alteration - this mostly focused on adobe PDF files, and how to make them compliant. For Adobe PDF files, because so many of
them have been created in a format that cannot be read by assistive technologies, existing PDFs do not have to be made 508 compliant. HOWEVER,
alternative access to their contents MUST be provided. New PDFs created after June 21st must be created as accessible documents.
Undue Burden - To obtain an undue burden exemption, you must demonstrate what you can and cannot do within the constraints of your budget and facilities,
and you must do what you say you can. Undue burden is a moving target, and requires an ongoing defense. This is not something you can say once and forget about it.
What is an undue burden today may not be next month or next year, as technologies, budgets and staffing levels change. You must still strive to
complete as many of the requirements of Section 508 as you can until which point your undue burden ceases to be a burden, and then you must complete that work as well.
Think of it in the best-case scenario as a stay of execution, not a presidential pardon.
Other legal issues:
FOIA - One question came up about what to do with pages that are not in compliance. Some departments are considering removing pages from their servers
until which time they are remediated. This was pointed out as being a greater faux-pas than leaving un-remediated pages online. If pages that were online are taken down for
reasons other than the expiration of their content, they could be subject to FOIA action, and the penalties for failure to comply with FOIA are much stricter than those for
Compliance Warranties -Do not expect contractors to give 508 warranties on their work. Contractors' obligations under FAR are determined at the time of the execution of the contract, not necessarily the date of delivery. If a contract has an extended period
of time between execution and delivery, a determination will have to be made relative to the date of the change in requirements as to whether the contractor
must meet that new legal requirement. Also, as 508 standards and technologies evolve, what was compliant today may not be tomorrow, and vice versa.