Let’s say your company develops or buys a piece of software that is really nifty, easy to use, effective, and full of all kinds of bells and whistles. The only problem is that the product is not accessible to persons with disabilities, such as those who use voice dictation and/or screen readers. This article explores what liabilities your company faces in this situation. Before going further, it is important to note a couple of things. First, software that is accessible to screen readers used by the blind (software, such as JAWS, that allow the screen to be read to the user) will not necessarily be accessible to a person using voice dictation software. (The leading one is Dragon NaturallySpeaking, which I have used for years. I also have used for years a supplemental program from a company called Knowbrainer that allows me to enhance Dragon NaturallySpeaking by giving me the ability to have all kinds of commands that promote efficiency of use across a range of software and also allows me to drastically cut down on my mouse use). Second, it is possible that the software, Internet site, or product may be designed in a way that is accessible for users with disabilities, but there may be problems if the user has multiple disabilities. For example, a user might need to use both voice dictation and captioning at the same time and the product, Internet site, or software may be such that both functions cannot operate simultaneously.
Section 508 of the Rehabilitation Act
With respect to this product that your company has developed, you shouldn’t plan on trying to sell it to the federal government. Section 508 of the Rehabilitation Act, 29 U.S.C. section 794d, mandates that the federal government use accessible technology and that mandate applies to technology it procures as well. There aren’t many ways a federal department or agency can escape this obligation. They could argue that there is an undue burden, but section 508 specifically says that it has to be an undue burden imposed on the department or agency for that to apply. (29 U.S.C. § 794d(a)(1)(A)). Second, the agency might claim that an accessible product is not commercially available, but that isn’t going to work either because under 36 C.F.R. section 1194.2(b), the agency is prohibited from claiming a product as a whole is not commercially available because no product in the marketplace meets all the standards. In such a case, the agency has to procure a product that best meets the standards. Therefore, if the federal government procures an inaccessible product, it runs the real risk of violating section 508 of the Rehabilitation Act. True, a private cause of action is not available for violation of section 508, Latham v. Brownlee, 2005 U.S. Dist. LEXIS 3745, 16 Am. Disabilities Cas. (BNA) 1065 (W.D. Tex. Mar. 3, 2005), but it is possible for the aggrieved individual to file an administrative complaint per 29 U.S.C. sections 794d(f)(1)(A), (f)(2). Finally, it is important to note that section 508 does not work like section 504 of the Rehabilitation Act, where an entity is on the hook if it takes federal funds. Rather, section 508 strictly applies to the federal government and to contractors only with respect to that product if they are also using it as part of the contract (36 C.F.R. § 1194.2(c)).