by Eve Hill
From the Editor: Eve Hill has been a highlight of many convention sessions in her many roles as a litigator with Brown, Goldstein & Levy, an official in the Department of Justice, and now as the chief counsel of the National Federation of the Blind. Here she speaks directly about whether the laws pertaining to accessibility are enforceable and ultimately to whether the law is just the law or whether it can become our reality. Here is the first of many articles that I hope she will write for the Braille Monitor.
The United States Department of Justice just released a report (https://www.justice.gov/crt/section-508-home-page-0) on the federal government’s compliance with Section 508 of the Rehabilitation Act. Section 508 requires federal agencies to make sure all their technology is accessible to people with disabilities.
But the DOJ report shows that many agencies are not taking this duty seriously, even twenty-five years after Section 508 was passed. For example, although across all tested agencies one out of ten websites were inaccessible, if one agency were removed from the count that number rose to three out of ten websites being inaccessible. Across the federal government, two out of every three pdf documents on federal websites are inaccessible. Most of the inaccessible pdfs aren’t even tagged—meaning there has been no effort to make them accessible.
Some agencies have dedicated virtually no resources to accessibility, some barely test any of their external websites, and several don’t even test the accessibility of their internal websites. Less than half of internal (intranet) websites that were tested were compliant. More than half of the agencies reviewed haven’t even made their accessibility statements compliant with Office of Management and Budget requirements. This is not a sign that compliance is difficult—it’s a sign that federal agencies can’t be bothered.
Part of the reason federal agencies take their accessibility responsibilities so lightly may be that it has been hard to enforce those obligations. But that is about to change. The District of Columbia Circuit Court of Appeals just issued a decision that gives us the tools we need to insist that these statistics improve. In Orozco v. Garland (https://nfb.org/blog/understanding-orozco-v-garland-appeal-and-why-it-important), the Court held that a blind federal employee can sue his employer under Section 508.
The federal government tried to argue, and the lower court agreed, that federal employees could not enforce Section 508 against federal agencies because it incorporated the “remedies, procedures, and rights” of Section 504, which applied to federally-funded entities, not federal agencies themselves. The DC Circuit disagreed, finding that such a reading would make no sense, since Section 508 only applies to federal agencies, not federally-funded entities. The court found that Section 508 only incorporates Section 504’s “remedies, procedures, and rights.” It does not incorporate Section 504’s coverage limitations. The court also found that Section 508 enforcement was available to federal employees, not just members of the general public with disabilities.
So federal employees with disabilities can now sue to enforce their right to accessible technology. They can no longer be ignored by their federal agency employers. They can no longer be forced to rely on part-time or ad hoc work-arounds while the underlying technology they’re forced to use remains inaccessible.
The National Federation of the Blind was proud to support Mr. Orozco’s case and looks forward to holding the federal government accountable. Hopefully, as a result, the next Section 508 report from DOJ will show more progress.