By Jessie Weber

A blind employee, who relies on screen access software to convert information that appears visually on computer, tablet, or phone screens into synthesized speech or braille, starts a new job only to learn that her employer requires employees to use software that is not properly coded to work with screen access software. Instead of reading the contents of her screen, this employee’s screen reader simply reads “blank, blank, blank”—rendering it impossible for her to do her job. This is the reality for many blind employees in our increasingly digital world, as well as other employees with disabilities who require use of screen access software (for example, individuals with dyslexia or dexterity impairments). While technology that is designed to be digitally accessible opens doors for employees who rely on screen access software and allows them to work productively right alongside their colleagues without disabilities, inaccessible technology shuts these employees out.

Although Title I of the Americans with Disabilities Act (“ADA”) and Sections 501 and 504 of the Rehabilitation Act provide legal recourse for many employees with disabilities, the reasonable accommodation/interactive process framework that is central to these laws can be a dead end for many employees. The federal disability rights laws governing employment generally require an employee with a disability to first request a reasonable accommodation, then the employee and employer must essentially negotiate to determine what is reasonable and would not impose an undue hardship on the employer. In situations where employers have already procured and rolled out inaccessible technology, this interactive process often proves inadequate. Employers may not consider the accessibility of technology they are procuring until an employee with a disability requests a reasonable accommodation, at which point, with the inaccessible technology already in use, remedying or replacing that technology with an accessible alternative can be quite expensive, leading employers to claim an undue hardship. When the problem stems from procurement decisions lacking consideration of accessibility, the interactive process can offer little to employees with disabilities negatively impacted by those decisions. Of course, there are arguments to be made that employers violate the ADA by procuring inaccessible technology for employees (such as when the inaccessible technology ends up acting like a qualification standard or selection criteria that screens out individuals with disabilities, see 42 U.S.C. § 12112(b)(6)), but these arguments have not been tested in court, and “reasonable accommodations” has become synonymous with disability employment law for many courts.

For federal employees, however, there is another tool for challenging the use of inaccessible technology in the workplace: Section 508 of the Rehabilitation Act. Section 508 requires federal agencies to develop, procure, maintain, and use only accessible electronic and information technology—both for the public and for internal use by federal employees. Until recently, some thought that the only means of enforcing Section 508 was by filing an internal administrative complaint—a process that can drag on for years, often going nowhere. For example, when blind FBI intelligence analyst Jahinnslerth Orozco filed an administrative complaint under Section 508 against his agency for its use of inaccessible software, the agency routed his complaint through the employee-discrimination process before eventually dismissing the claim and directing Mr. Orozco to file it with the administrative office that handles accessible technology issues, which he had already done twice to no avail. See Orozco v. Garland, 60 F.4th 684, 687 (D.C. Cir. 2023). His agency thought Mr. Orozco’s fight for an accessible workplace should stop there. 

But Mr. Orozco instead filed a federal lawsuit, arguing that the FBI’s procurement and use of inaccessible workplace software violated Section 508. The district court initially dismissed the case, accepting the federal government’s argument that Section 508 does not grant individuals a private right of action to enforce it. Following Mr. Orozco’s appeal, however, the D.C. Circuit held that Section 508 “affords federal employees like Orozco their day in court” and reversed and remanded the case. Orozco, 60 F.4th at 692.

Orozco’s clarity on Section 508’s private right of action affords federal employees a powerful new tool in their fight for an accessible workplace: they can challenge their agencies’ use of inaccessible technology head on, without going through the interactive process, and they can have their claims heard outside of their agencies, in federal court. Federal employees with disabilities can now more effectively get at the root cause of their struggle with inaccessible technology—the decision to procure or develop inaccessible software in the first place. Orozco will likely lead to greater enforcement of Section 508, which should in turn lead to more accessible federal workplaces. Given the size and buying power of the federal government, Orozco’s impact should spill over to the private sector as well, as more developers of workplace technology make their products accessible in hopes of obtaining a government contract. In the meantime, federal employees with disabilities and their advocates have another tool to add to their toolbox for enforcing these workers’ civil right to equal employment opportunity. 

If you have questions about this matter or believe you’ve been subject to discrimination in the workplace, please call us at 410-962-1030 or contact us today for a consultation.