Reprinted with permission from the August 2001 issue of Contract Management magazine, published monthly by the National Contract Management Association in Vienna, VA. For more information about NCMA or CM magazine, visit www.ncmahq.org.
About the authors: James J. McCullough is a partner, and Jonathan S. Aronie and Abram J. Pafford are associates in Fried, Frank, Harris, Shriver & Jacobson’s Government Contracts Practice. Send comments on this article to firstname.lastname@example.org.
SECTION 508 ACCESSIBILITY: The “Undue Burden” Exception
Section 508 of the Rehabilitation Act requires government agencies to provide access to electronic and information technology for persons with disabilities. The provision’s undue burden exemption ensures that agencies can also carry out their other public obligations.
By James J. McCullough, Jonathan S. Aronie, and Abram J. Pafford
On April 25, 2001, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council issued final amendments to the Federal Acquisition Regulation (FAR), implementing Section 508 of the Rehabilitation Act of 1973 (Rehabilitation Act). Section 508 of the Rehabilitation Act, which became law in 1998, requires that the government take reasonable steps to ensure that persons with disabilities have access to electronic and information technology utilized by government agencies. The recent amendments to the FAR are meant to guide agencies and contractors in complying with the Electronic and Information Technology Accessibility Standards developed by the Architectural and Transportation Barriers Compliance Board (Access Board) and published on December 21, 2000.
The final FAR amendments address these accessibility standards for “electronic and information technology” (EIT). EIT includes information technology as well as “any equipment or interconnected system of subsystem of equipment that is used in the creation, conversion, or duplication of data or information.” The FAR rule requires that federal agencies developing, maintaining, or procuring EIT ensure that the technology being procured provides federal employees and members of the public with disabilities access to and use of data comparable to access and use enjoyed by non-disabled persons. An exception is made, however, for situations where compliance imposes an “undue burden” on the federal agency. The FAR does not define undue burden except to indicate that it means “a significant difficulty or expense.” In determining whether an undue burden exists, one must consider 1) the difficulty or expense of compliance; and 2) the agency resources available for which the supply or service is being acquired.
The proposed rule amending the FAR to implement the Section 508 accessibility requirements was issued on January 22, 2001. Prior to final rule, the lack of a clear definition for undue burden prompted several reviewers to request additional guidance on the subject. The FAR Council declined to do so, indicating that “substantial case law exists on this term, which comes from disability law,” and instead directed parties to the preamble to the Access Board’s December 2000 accessibility standards for additional guidance. Against this background, it is clear that to understand the meaning of undue burden, one must explore the history of the term, in light of how it has evolved and been applied in the context of disability law over the past several decades.
A Short History
Section 504 of the Rehabilitation Act of 1973 prohibits discrimination against individuals with disabilities and exclusion of individuals with disabilities from participating in any program or activity that receives federal financial assistance or is conducted by the federal government. The original provisions of Section 504 applied exclusively to federal assistance recipients and did not contain the term undue burden. Nor was the concept of undue burden included in the first set of U.S. Department of Justice (DOJ) prototype regulations implementing Section 504 for recipients of federal assistance. The Rehabilitation Act was amended in 1978, however, and its applicability was extended beyond recipients of federal assistance to programs or activities conducted by executive agencies themselves.
Shortly after these amendments, the Supreme Court reviewed the Rehabilitation Act’s accessibility standards in Southeastern Community College v. Davis. In the resulting ruling, the Court held that Rehabilitation Act did not mandate accessibility adjustments if those adjustments would require a “substantial modification” to the facilities, equipment, or program at issue. The Court also noted that states could be found to have discriminated against the disabled in situations where adjustments could be made that would afford access “without imposing undue financial and administrative burdens upon a State.” Following the Court’s decision, the lower federal courts began “substantial modification” and “undue financial and administrative burdens” analysis as the guiding principles for cases brought under the Rehabilitation Act.
Notably, most of the early Rehabilitation Act litigation focused on accessibility requirements in federally assisted programs. In 1984, however, the DOJ issued regulations implementing the Rehabilitation Act’s requirements for federally conducted programs. In its regulations, the DOJ set out ways to measure appropriate compliance efforts when administering government-conducted programs. The DOJ regulations indicated that the accessibility standards should not be interpreted as requiring agencies to make “fundamental alterations” in program activities. Additionally, the DOJ regulations indicated that agencies need not incur “undue financial and administrative burdens” in complying with the accessibility standards of the Rehabilitation Act.
DOJ’s interpretation of the accessibility standards stirred up some controversy. Several reviewers argued that the concepts were not found in the language of the Rehabilitation Act itself. The DOJ, however, emphasized that incorporating the “substantial alteration” and “undue burden” concepts was necessary to properly implement Section 504 of the Rehabilitation Act as it had been interpreted by the federal courts. The DOJ also stated that the standards for evaluating compliance with the Rehabilitation Act in the context of federally assisted programs were meant to be identical, in most respects, to the standards that would be used in evaluating agency compliance with respect to federally conducted programs.
DOJ did note a distinction regarding the use of the term “undue hardship” in the regulations implementing Section 504 for federal aid recipients.  Parties commenting on the DOJ regulations for federally-conducted programs questioned the agency’s decision to use the concept of undue burden as opposed to undue hardship in defining compliance obligations. The DOJ responded by pointing out that the undue burden language was drawn from the Supreme Court’s decision in Davis and that the reference to “undue hardship” in 28 C.F.R. Part 41 was properly viewed as a “term of art” used in the limited context of an aid recipient’s employment obligations with respect to applicants with disabilities.
Further developments arose with respect to these concepts with the passage of the Americans with Disabilities Act (ADA) in 1988. The ADA built upon Section 504 of the Rehabilitation Act. Title II of the ADA, which prohibits discrimination in the provision of services furnished by governmental entities, provided that regulations implementing Title II must be consistent with the preexisting DOJ regulations issued under Section 504 of the Rehabilitation Act and applicable to federally assisted programs. The preamble to these regulations indicates that
Because Title II of the ADA essentially extends the antidiscrimination prohibition embodied in section 504 [of the Rehabilitation Act] to all actions of State and local governments, the standards adopted in this part are generally the same as those required under section 504 for federally assisted programs.
Thus, the implementing regulations for Title II indicated that public entities are not required to take actions that “would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burden.”
The Undue Burden Standard
Against the foregoing backdrop, the Access Board incorporated the concept of “undue burden” as an exception to compliance with the new EIT accessibility standards. In describing the concept, the Access Board made it clear that it was
· adopting the undue burden standard based on earlier case law and regulations implementing Section 504 of the Rehabilitation Act (as it applied to federally conducted programs); and
· applying that standard to the new EIT accessibility obligations created under Section 508 of the Rehabilitation Act in 1998.
In fact, the Access Board’s preamble cited explicitly both the Supreme Court’s opinion in Davis and the DOJ’s 1984 regulations implementing Section 504 of the Rehabilitation Act for federally-conducted programs.
The Access Board’s discussion of the undue burden standard, however, did not stop with those references. The Access Board also invoked Title III of the ADA, which prohibits discrimination by public accommodations against persons with disabilities, but permits an exception where ensuring accessibility would “fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.” Reviewing the ADA’s legislative history, the Access Board noted that while Congress indicated that the term undue burden was derived from Section 504 of the Rehabilitation Act and the regulations thereunder, it also said that undue burden was analogous to undue hardship as used in Title I of the ADA, relating to discrimination in employment. Thus, based on this Congressional analogy, the Access Board borrowed the concept of “significant difficulty and expense” from ADA’s Title I undue hardship standard, and used it to define undue burden under the Access Board EIT accessibility standards.
At the same time, however, the Access Board acknowledged that many other factors listed in Title I that were appropriate considerations when determining an undue hardship in the employment context would not be relevant under the EIT accessibility standards relating to the initial procurement of EIT items. Interestingly, the Access Board chose not to reference the ADA’s Title II, which adopts directly the undue burden standard drawn from the DOJ’s implementing regulations for Section 504 of the Rehabilitation Act.
Defining Undue Burden
Following the Access Board’s publication of its regulations, the FAR Council’s new rule implementing the EIT accessibility standards adopted the undue burden standard to evaluate whether non-compliance with the technical provisions could be excused. As previously noted, the standard is not defined in the final FAR rule, but the FAR Council’s references to disability law offer direction as to where one can turn to obtain further guidance concerning an agency’s accessibility obligations in particular situations. The history and evolution of the undue burden standard demonstrate that parties have several sources to look to when analyzing whether an undue burden exists under the new FAR EIT accessibility regulations. Because the Access Board invoked both the Rehabilitation Act and the ADA in introducing the concept, it appears that either of these two statutory provisions provide appropriate authority for determining whether an agency can properly invoke the exception.
Case law interpreting the undue burden exception under both Section 504 and the ADA tends to involve fact intensive inquiries into 1) the nature of the accommodation requested by a disabled plaintiff, and 2) the resources available to the entity from whom the accommodation is sought. This is consistent with the Access Board’s statement that an undue burden analysis should be made on a case-by-case basis.
The FAR’s definition of an undue burden as a “significant difficulty or expense” obviously requires a baseline against which that difficulty or expense may be measured. The baseline provided in the FAR is as follows: “In determining whether an action would result in an undue burden, an agency shall consider all agency resources available to the program or component for which the product is being developed, procured, maintained, or used.” Notably, the ADA Title II regulations take an analogous approach to undue burden.”
In determining how broadly to define the resources available to a program or component, however, it should be noted that the term “available” places limitations on how broadly the net can be cast in determining the resources to be considered. Congress often appropriates money for specific purposes and programs; and, in many instances, particularly in the context of the U.S. Department of Defense appropriations, Congress also limits the transfer of funds between various programs within the same agency or agency component. In these instances, such funds may not be available to cover Section 508 compliance. It should be noted that the U.S. General Accounting Office has provided extensive guidance concerning how to evaluate the availability of Congressional appropriations. When ascertaining whether an undue burden exists, it appears that funds not available for the procurement should not be included in an agency’s baseline budget, against which significant difficulty or expense is measured.
Even where the baseline budget is limited by Congressional appropriation restrictions, however, agencies, courts, and contractors should remember that the undue burden standard under disability law establishes an extremely high threshold for avoiding compliance and requires something more than minor inconvenience or increased expense. Indeed, the preamble to the ADA’s Title II regulations explicitly notes that Congress intended the undue burden standard to be significantly higher than the standard for making “readily achievable” modifications to certain public accommodations. Therefore, agencies should not expect to assert that compliance with the FAR’s EIT provisions is an undue burden merely because compliance would be more expensive than non-compliance. The fact that additional costs are incurred in ensuring EIT accessibility for disabled individuals is clearly contemplated by both Section 508 and the Access Board’s preamble to the Section 508 EIT regulations, and it is only in exceptional cases that such costs likely will be found to be so significant that an agency is relieved from compliance.
Along with assessing resources available for Section 508 compliance, evaluating whether an undue burden exists will also involve assessing a particular procurement’s circumstances, and the context in which a federal agency is using EIT to provide information to the public. This contextual inquiry is consistent with the Access Board’s case-by-case approach to applying the new EIT provisions. Indeed, despite comments seeking a bright-line rule, it was precisely the need to consider such factors that appeared to drive the Access Board’s decision to avoid a mechanical approach to undue burden analysis and refrain from specifying particular factors or numerical percentages for determining an undue burden. Moreover, this approach is also consistent with other areas of disability law that incorporate the concepts of undue burden and undue hardship.
Despite the case-by-case approach, certain factors will always be relevant to the undue burden analysis. In procurement, important factors may include:
· the overall funds available to the agency;
· the funds allotted for the particular program and procurement;
· the procurement’s goal as defined in the agency’s request for proposal (RFP) or statement of work (SOW); and
· the extent to which allocating resources to Section 508 compliance would interfere with the agency’s ability to carry out its other statutorily mandated responsibilities.
Interested parties, including agencies and contractors, should note that the agency is required to thoroughly document its conclusion if it determines that an undue burden exists. Such documentation may allow courts or enforcement authorities to “look behind” the agency’s undue burden determination to assess both actual needs and the resources available.
Notwithstanding the guidance regarding the meaning of undue burden that can be drawn from current disability law, several fundamental questions remain unanswered. Many of the questions arise out of an inherent tension between the cost of compliant products and the extent to which those products are accessible. For example, an agency seeking to purchase 10 high-speed copy machines may argue that purchasing 10 machines fully compliant with FAR EIT accessibility provisions would result in an undue burden. In such situations, it appears that agencies have several options available. One option would be to purchase a smaller number of fully compliant copy machines. A second option would be to purchase 10 machines, with full accessibility features on some and few accessibility features on others. A third option would be to purchase 10 machines, with each machine possessing a moderate number of accessibility features, but falling short of full compliance as defined by the FAR and the Access Board. It remains to be seen how such options will be treated by courts and agency officials charged with ensuring compliance with the Section 508 EIT accessibility provisions.
Notwithstanding the unanswered questions, Section 508 is a positive step in the ongoing effort to ensure that citizens with disabilities can enjoy full and active participation in public life, particularly those areas of public life that involve the activities of the federal government. Additional questions will undoubtedly arise as agencies seek to comply with Section 508 and implement the new FAR EIT accessibility provisions. Including the undue burden exception helps ensure that agencies are able to promote full accessibility for individuals with disabilities, while also effectively discharging the other important obligations arising under their prescribed public missions.
 66 Fed. Reg. 20,894 (Apr.25,2001).
 65 Fed. Reg. 80,500 (Dec. 21, 2000; publishing accessibility standards to be incorporated at 36 C.F.R. Part 1194).
 FAR Part 2.101.
 FAR Part 39.201(c).
 FAR 39.202.
 66 Fed. Reg. 7166 (Jan. 22, 2001).
 The Access Board has provided additional information in the form of a list of Frequently Asked Questions (FAQs), with answers posted on the Section 508 Web site, www.section508.gov.
 C.F.R. Part 41.7. These regulations were intended to implement Executive Order 12250, which requires the DOJ to coordinate the implementation of Section 504's requirements with respect to recipients of federal assistance. See 28 C.F.R. § 41.1.
 29 U.S.C. § 794(a).
 Southeastern Community College v. Davis, 442 U.S. 397, 413 (1979).
 Davis, 442 U.S. at 412.
 Dopico v. Goldschmidt, 687 F.2d 644, 649 (2d Cir. 1982); American Public Transit Association v. Lewis, 655 F.2d 1272, 1277-78 (D.C. Cir. 1981).
 49 Fed Reg. 35,734 (Sept. 11, 1984) (codified at 28 C.F.R. Part 39).
 28 C.F.R § 39.150(a)(2).
 28 C.F.R. Part 39, Editorial Note, at 702.
 28 C.F.R. Part 39, Editorial Note, at 695.
 28 C.F.R. Part 39, Editorial Note, at 703.
 42 U.S.C. § 12134(b).
 28 C.F.R. Part 35, App. A, at 477 (2000).
 28 C.F.R. § 35.150(a)(3).
 42 U.S.C. § 12182(b)(2)(A)(iii).
 In this regard, the ADA legislative history parts company with DOJ’s past Section 504 regulations, in which DOJ refused to equate “undue hardship” in the employment context with the concept of “undue burden” as it relates to the more general accessibility requirements for programs and activities conducted by the federal government.
 28 C.F.R. Part 39, Editorial Note, at 703.
 Section 1194.4.
 Title II Preamble, 28 C.F.R. Part 35, App. A, at 492; Pascuiti v. New York Yankees, 87 F. Supp. 2d 221, 224 (S.D.N.Y. 1999).
 Principles of Federal Appropriations Law, Second Edition, Vol. II, Ch. 6-7 (1991).
 Civic Association of the Deaf of New York City, Inc. V. Giulani, 915 F. Supp. 622, 636 (S.D.N.Y. 1996).
 Title II Preamble, 28 C.F.R. Part 35, App. A, at 493.
FAR EIT Provisions, Section 1194.2(a)(2).
 Supplementary information provided along with the final FAR rule notes that agencies will have to conduct market research at the start of a procurement, in order to ascertain the probable cost of compliant solutions, which in turn will guide the agency in determining if the undue burden exception applies. The supplementary information indicates that vendor websites and the Section 508 website may be helpful tools for conducting market research. 66 Fed. Reg. 20,894, 20,895 (Apr. 25, 2001).