The EEOC's April 2016 Notice of Proposed Rulemaking regarding its proposed updates to Section 501 includes many implications related to accessible technology and employment.
Enhancing the recruitment, hiring, retention, and advancement of individuals with disabilities by public and private sector employers is the focus of several federal laws, including Title I of the Americans with Disabilities Act (ADA) and Title V of the Rehabilitation Act, particularly Section 501(affirmative action by federal agencies), Section 503 (affirmative action by federal contractors), and Section 504 (nondiscrimination by recipients of federal assistance). Title V specifies that the standards used to determine whether Section 501, Section 503, or Section 504 have been violated in a complaint alleging employment discrimination shall be the standards applied under the Title I of the ADA.
In addition, Title V includes Section 508. Under Section 508 implementing regulations, federal agencies must ensure that applicants and employees with disabilities have access to and use of information and data that is comparable to the access to and use of the information and data by employees who are not individuals with disabilities (unless an exception is applicable). Access is determined in accordance with specific information and communication (ICT) accessibility standards (Section 508 Standards).
Federal officials have recognized that for many individuals with disabilities, access to websites, online application systems, mobile applications, and other forms of accessible ICT is increasingly becoming a “gateway to employment” and “we must avoid the travesty that would occur if the doors that are opening to Americans from advancing technologies were closed for individuals with disabilities because we were not vigilant.” Thus, it is critical that federal agencies responsible for administering these laws, including the Equal Employment Opportunity Commission (EEOC), Department of Labor (DOL), Department of Justice (DOJ), and the Access Board coordinate the development of policies regarding access to and use of information and data for all applicants and employees, including individuals with disabilities.
The most recent iteration of disability employment policy is the publication of a Notice of Proposed Rulemaking (NPRM) regarding Section 501. The purpose of this policy brief is to describe and analyze the specific aspects of the Section 501 NPRM that affect and/or relate to accessible ICT in the federal employment context and identify policy issues for consideration for addressing accessible ICT in the final Section 501 rule. To provide a policy context for the analysis of the Section 501 NPRM, this article also includes a brief discussion of Section 508 of the Rehabilitation Act NPRM applicable to federal employees.
EEOC is inviting comments from all interested parties regarding the proposed Section 501 proposed rule on or before April 25, 2016. The comments must include the agency name and Regulatory Information Number RIN 3046-AA94. The public may submit comments by any of the following methods:
- Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
- Fax: (202) 663-4114. (There is no toll free FAX number.) Only comments of six or fewer pages will be accepted via FAX transmittal, in order to assure access to the equipment. Receipt of FAX transmittals will not be acknowledged, except that the sender may request confirmation of receipt by calling the Executive Secretariat staff at (202) 663-4070 (voice) or (202) 663-4074 (TTY). (These are not toll free numbers.)
- Mail: Bernadette Wilson, Executive Officer, Executive Secretariat, Equal Employment Opportunity Commission, 131 M Street NE, Washington, DC 20507.
- Hand Delivery, Courier: Bernadette Wilson, Executive Officer, Executive Secretariat, Equal Employment Opportunity Commission, 131 M Street NE, Washington, DC 20507.
On February 24, 2016, EEOC published in the Federal Register a Notice of Proposed Rulemaking (NPRM) to amend the regulations implementing Section 501. As explained above, Section 501 requires federal agencies to establish an affirmative action program for the hiring, placement, and advancement of individuals with disabilities. This NPRM proposes to amend 29 CFR 1614.203 to update, clarify, and put in one place the standards EEOC will use to review and approve affirmative action plans developed by agencies in accordance with Section 501. This will provide clarity to federal agencies for the development of their affirmative action plans. [81 FR 9125, column 2]
The affirmative action requirements in Section 501 impose two distinct obligations on federal agencies. First, affirmative action requires that federal agencies not discriminate against individuals on the basis of disability in regard to the hiring, advancement, or discharge of employees, employee compensation, job training, or other terms, conditions, and privileges of employment. Second, affirmative action requires each federal agency to maintain, update annually, and submit to EEOC an affirmative action program plan for hiring, placement, and advancement of individuals with disabilities.
Accessible ICT and the Nondiscrimination Provision [1614.203(b)]
Affirmative action requires that federal agencies not discriminate against individuals on the basis of disability in regard to the hiring, advancement, or discharge of employees. Consistent with Title V of the Rehabilitation Act and the current Section 501 regulation, the Section 501 NPRM simply specifies that the standards used to determine whether Section 501 has been violated in a complaint alleging employment discrimination shall be the standards applied under the Title I of the ADA and other applicable provisions of the ADA related to employment. ADA Title I standards are codified in regulations issued by EEOC at 29 CFR part 1630.
In other words, the Section 501 NPRM does not include any specific standards of nondiscrimination on the basis of disability; rather, it simply incorporates by reference the ADA nondiscrimination standards applicable in the employment context. In light of the approach adopted by EEOC of simply incorporating by reference the ADA nondiscrimination standards, it follows that the Section 501 NPRM does not specifically address the application of the ADA nondiscrimination standards to ICT.
In general, the ADA Title I standards make it unlawful to, among other things, use methods of administration that have the effect of discriminating on the basis of disability. The Title I regulations also make it unlawful to not make reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability unless the entity can demonstrate an undue hardship and define reasonable accommodation as including acquisition or modifications of equipment or devices.
In policy guidance relating to the filing of complaints under the current Section 501 regulation, EEOC has explained that complaints filed by employees and applicants for employment alleging a violation of Section 501 are processed under the federal sector equal employment opportunity administrative complaint procedures, 29 CFR Part 1614. Alleged violations of Section 501 may include complaints relating to failure of federal agencies to acquire or modify equipment or devices as a form of reasonable accommodation.
EEOC has also explained that complaints by federal employees or applicants for federal employment alleging violations of Section 508 are not handled as complaints of employment discrimination under Section 501. Section 508 requires federal agencies to ensure that the ICT they develop, procure, maintain, or use is accessible to and usable by individuals with disabilities who are employees or members of the public. Section 508 complaints typically concern procurement decisions, not employment discrimination. Therefore, if an employee alleges a Section 508 violation in the EEO counseling process, an agency should advise the employee how to raise the complaint under the agency's internal procedures for Section 508 complaints.
It should be noted that DOJ has entered into numerous ADA settlement agreements under which public and private employers agreed to make their websites, online applications, and mobile applications accessible to and usable by applicants and employees with disabilities in accordance with international standards (Web Content Accessibility Guidelines 2.0 Level AA Success Criteria).  These are the same standards proposed by the Access Board in a Notice of Proposed Rulemaking “refreshing” Section 508 regulations. Under these settlement agreements and proposed rule, employers must make their ICT accessible without the need for individual applicants or employees to make a request for special treatment or the necessity for individualized treatment. In addition, even if the employer meets the accessibility standards, it must also provide ICT as a reasonable accommodation on a case-by-case basis to ensure that the information and data is usable by the individual.
Issues for Consideration: In preparing comments to the EEOC, the following issues may be considered regarding the nondiscrimination provision in the Section 501 NPRM:
- Consistent with settlements agreements between EEOC and public and private employers, should EEOC clarify whether Title I of the ADA (and thus Section 501) requires that employers make their websites, online systems, mobile applications, and other ICT systems accessible to and usable by applicants and employees with disabilities in accordance with international standards (Web Content Accessibility Guidelines 2.0 Level AA Success Criteria)? Phrased differently, should EEOC clarify that an individual with a disability may file an employment discrimination complaint under Section 501 with respect to the hiring, advancement, or discharge of employees, employee compensation, job training, or other terms, conditions and privileges of employment because of the inaccessibility of websites, online systems, mobile applications, or other ICT systems?
- In addition, even if the covered entity meets the accessibility standards, should EEOC clarify whether the federal agency acting in the capacity as an employer must still provide ICT as a reasonable accommodation on a case-by-case basis to ensure that the information and data is usable by the particular individual?
Affirmative Action Program Plan [1614.203(d)]
In addition to requiring nondiscrimination, affirmative action requires that federal agencies maintain, update annually, and submit to EEOC an “affirmative action program plan for the hiring, placement, and advancement of individuals with disabilities” and further directs the Commission to approve a plan if “the Commission determines…that such plan provides sufficient assurances, procedures and commitments to provide adequate hiring, placement, and advancement opportunities for individuals with disabilities.” [81 FR 9124, column 1]
The regulations currently implementing Section 501 simply state that the federal government shall be a “model employer of individuals with disabilities” and instruct federal agencies to “give full consideration to the hiring, placement, and advancement of qualified individuals with disabilities.” Currently, in addition to the regulations, affirmative action requirements are found in a variety of sources, including management directives (e.g., EEOC Management Directive 715) and Executive Orders (such as EO 13163, EO 13164, and EO13548). [81 FR 9124, column 1]
The NPRM sets forth the requirements that an agency’s affirmative action plan must meet in order to provide “sufficient assurances, procedures, and commitments to provide adequate hiring, placement, and advancement opportunities for individuals with disabilities.” The affirmative action plan must meet criteria relating to disability hiring and advancement programs, disability anti-harassment policy, reasonable accommodation, personal assistance services, utilization analysis, goals, recordkeeping and reporting.
With respect to accessibility of technology, many commenters asserted that greater compliance with Section 508 of the Rehabilitation Act would improve the hiring, retention, inclusion and advancement of individuals with disabilities. EEOC explained that “the Commission has not been given authority by Congress to issue or amend substantive regulations implementing Section 508. The Commission therefore cannot include in the proposed rule any provisions that implement or enforce [Section 508].” [81 FR 9127]
Instead, EEOC included in 1614.203(d)(4) of the NPRM specific provisions in the affirmative action plan intended to ensure that federal employees with disabilities have the information they need to utilize existing enforcement and compliance mechanisms regarding Section 508 (and the Architectural Barriers Act (ABA) regarding facilities). The paragraph requires agencies to provide all employees with contact information for the employees inside the agency who are responsible for ensuring compliance with Section 508 (and the ABA) with clear instructions on how to file complaints under existing rules. It also requires agencies to assist employees in filing a complaint with another federal agency, where investigation shows that such other entity is responsible for the alleged violation.
EEOC is correct that it does not have authority to issue or amend substantive regulations implementing Section 508. However, EEOC does have authority to issue or amend substantive regulations implementing the ADA, and thus Section 501, to clarify that discrimination on the basis of disability in the employment context includes the failure to make websites, online applications, mobile applications, and other forms of ICT accessible to and usable by individuals with disabilities in accordance with specified ICT accessibility standards.
Issues for Consideration: The ODEP website includes references to two documents regarding best, promising, and emerging practices adopted by federal agencies.
- Framework for Designing and Implementing Accessible Information and Communication Technology (ICT) Strategic Plans Accessible Technology in the Workplace Initiative
- Summary: Promising and Emerging Practices for Enhancing the Employment of Individuals With Disabilities Included in Plans Submitted by Federal Agencies Under Executive Order 13548
In preparing comments to the EEOC, the following issues may be considered regarding the affirmative action program plan provisions in the Section 501 NPRM:
- Should EEOC reference to these documents in general and include a particular reference to the practices identified in the documents regarding accessible ICT?
- Should the affirmative action program plan supplement and complement Section 508 strategic plans developed by an agency, with a particular focus on accessible ICT that affects or could affect the hiring, advancement, or discharge of employees, employee compensation, job training, or other terms, conditions, and privileges of employment?