Section 503 of the Rehabilitation Act of 1973 (Section 503), 29 USC § 793, prohibits federal contractors and subcontractors from discriminating in employment against individuals with disabilities and requires these employers to take affirmative action, including making reasonable accommodations, to recruit, hire, promote, and retain these individuals. Similarly, the Vietnam Era Veterans’ Readjustment Assistance Act, as amended (VEVRAA), 38 USC 4212, imposes similar obligations with regard to protected veterans, including disabled veterans. These obligations are enforced by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP).
OFCCP regulations do not currently require specific website accessibility technical standards. Nonetheless, regulations make it clear that the Section 503 and VEVRAA reasonable accommodation obligations apply to the job application process, including the contractor’s use of electronic or online job application systems. 41 CFR 741.21(6)(iii). OFCCP clarifies that, even though not required by the regulations, it is a “best practice for the contractor to make its online job application system accessible and compatible with assistive technologies used by individuals with disabilities.” 41 CFR 741.21(6)(iii).
Similarly, the regulations require that contractors ensure that applicants and employees with disabilities have equal access to all of its personnel processes, including those implemented through information and communication technologies. OFCCP maintains that “the contractor is also encouraged to make its information and communication technologies accessible, even absent a specific request for reasonable accommodation.” 41 CFR 741.44(b) at fn3.
Although current OFCCP regulations do not specifically reference website technical standards, contractors should nonetheless be proactive. Most contractors are covered by the Americans with Disabilities Act (ADA). There has been a flood of litigation in recent years over the accessibility of websites to persons with disabilities. The U.S. Department of Justice (DOJ) and many courts have ruled that the ADA requires accessibility for most private businesses. Title I of the ADA provides that no employer may discriminate against an individual on the basis of his or her disability with respect to hiring, job application procedures, compensation, promotion, termination, and other terms and conditions of employment. For those contractors who only provide access to certain applicant and employee information via the Internet (e.g. job application, access to employment benefits, training, onboarding, etc.), the use of the Internet is almost certainly a term or condition of employment subject to this analysis.
Title II and Title III of the ADA require public entities and nearly every private business to make their goods and services equally accessible to the disabled, and to communicate effectively with them. In recent years, the DOJ and private litigants have inundated businesses with lawsuits and threats of lawsuits based on claims of inaccessible websites. Furthermore, the DOJ has made website accessibility a top priority of its regulatory and enforcement initiative. However, neither the ADA nor DOJ regulations specifically address website accessibility. In the absence of any current laws or regulations defining what is required, DOJ and many courts look to voluntary guidelines developed by the Worldwide Web Consortium (W3C), known as the Web Content Accessibility Guidelines (WCAG) 2.0. DOJ has indicated that it intends to incorporate these guidelines into regulations that it proposes to issue in 2018.
There are two recent developments:
The U.S. Architectural and Transportation Barriers Compliance Board (Access Board) finalized a regulation in January 2017 that will make the WCAG 2.0 Level AA the design standard when interpreting and implementing Section 508 of the Rehabilitation Act of 1973, which requires federal agencies to make their websites accessible to disabled individuals. Affected federal agencies will have one year from the publication of the final rule to comply with the revised 508 standards, which would place the compliance deadline sometime in early 2018. OFCCP references WCAG 2.0 in the disability regulations and encourages contractors to use these guidelines as a resource to assist in assessing and ensuring the accessibility of their information and communication technology. 41 CFR 741.44 (b) at fn3. Although these new guidelines are not binding on OFCCP, it seems likely that courts will look to them in determining a website’s compliance with ADA. As the guidelines gain further prominence, OFCCP may also follow the lead in referring to them when evaluating a contractor’s good faith efforts to reasonably accommodate disabled applicants and employees when using an on-line application process or when accessing information regarding company policies and procedures.
In June, the first trial about the accessibility of a public accommodations’ website took place in Florida (Gill v. Winn-Dixie Stores, Inc.). A visually impaired consumer filed a lawsuit against a regional grocer because he was unable to use his technology software to access the company’s website to review and select digital coupons, fill prescriptions, and locate stores. At the conclusion of the trial, the federal district judge ruled in the plaintiff’s favor and concluded that Title III of the ADA required the website to be accessible. Although each case will be decided on its own facts, many commentators predict that the decision will further the trend of lawsuits challenging businesses’ websites.
What should federal contractors do?
- Be proactive and begin building in website accessibility now.
- Make sure that your internal and external web designers are aware of the WCAG 2.0 guidelines and apply them in any new website development.
- Consider an audit of the company’s website to determine what, if any, remediation is needed.
- Secure third party technical expertise to help guide you through the process.
- Consult with outside counsel, as needed, to discuss legal risks.
There are a variety of resources that may assist contractors in assessing and ensuring the accessibility of their information and communication technology.
You can find a complete list of the OFCCP questions and answers on Disability Issues Related to Online Application Systems.
OFCCP has posted a Guide for Employers for Accessible Technology Action Steps.
The U.S Department of Labor’s Office of Disability Employment Policy (ODEP) has identified resources available to job applicants and the contractor community.
Additional resources can be found on the website of the Job Accommodation Network (JAN)
Online information is available regarding the Web Content Accessibility Guidelines (WCAG) 2.0 of the World Wide Web Consortium Web Accessibility Initiative.
You can also find detailed information on Section 508.