 

>From the web page
http://www.afb.org/grg/508rem.html

AMERICAN FOUNDATION FOR THE BLIND

Memo Regarding Remedies Available Under Section 508 of the
Rehabilitation Act

Summary

In general, Section 508 of the Rehabilitation Act requires
federal governmental agencies to develop, procure, maintain and
use electronic and information technology that is accessible to
and usable by people with disabilities, including both such
agencies' employees and members of the public generally. This
requirement is designed to provide to people with disabilities a
level of access to information and data that is comparable to
the access enjoyed by non-disabled employees or members of the
general public. Section 508 provides remedies to those aggrieved
by violations of this requirement through the long-standing
Rehabilitation Act provisions, found in Section 505, which,
after administrative remedies are exhausted, allow for both
private rights of action in court and for reasonable attorneys
fees. Although compensatory or punitive damages will not be
available to prevailing plaintiffs, equitable remedies, such as
declaratory and injunctive relief, are available.

The award of compensatory and punitive damages is usually
dependent on the successful allegation of intentional
discrimination. However, even if a federal agency's violation of
Section 508 would be viewed as intentional, courts are not
likely to award compensatory or punitive damages because the
Supreme Court has held that Congress has not waived the federal
government's sovereign immunity from such damages awards under
the enforcement provisions of the Rehabilitation Act upon which
Section 508 relies.

The purpose of this memorandum, then, is to provide lay readers
with the text of the relevant provisions of law and to try to
explain their connection to the private right of action and
remedies available to those aggrieved by violations of Section
508. The difficulty in handling the following material is
exacerbated by the fact that such right and remedies are not
spelled out in the text of any single provision, Rather, as will
be shown below, the private cause of action and available
remedies are implied by the enforcement language of Section 508.
Although this may appear at first to be shaky ground upon which
to rest the right and attendant remedies, the right to sue in
federal court and to obtain relief is well established but
limited in scope.

The Law

In 1973, Congress enacted the Rehabilitation Act, a
comprehensive statute establishing a partnership between the
federal and state governments to foster the provision of
vocational rehabilitation services to people with disabilities.
This program provides training and related services to people
with a wide range of disabilities primarily to equip them for
entry or reentry into the workforce. However, Congress also
recognized that, in addition to a lack of educational
opportunities and work experience leading to skills-development,
people with disabilities also face discrimination both by
employers and by public agencies. To ensure that the federal
government would not perpetuate the discrimination that the
vocational rehabilitation system was designed to mitigate,
Congress also enacted civil rights protections for people with
disabilities. In particular, Section 504 of the Rehabilitation
Act (29 U.S.C. 794) bars discrimination on the basis of
disability by recipients of federal financial assistance and by
agencies of the federal government themselves. In addition, on
August 7, 1998, Congress amended Section 508 of the Act (29
U.S.C. 794d) to expand the federal government's responsibility
to provide electronic and information technology which is
accessible to and usable by people with disabilities. The new
Section 508 reads in pertinent part as follows:


  * Requirements for Federal departments and agencies.

    * Accessibility.

      * Development, procurement, maintenance, or use of
        electronic and information technology. When developing,
        procuring, maintaining, or using electronic and
        information technology, each Federal department or
        agency, including the United States Postal Service,
        shall ensure, unless an undue burden would be imposed on
        the department or agency, that the electronic and
        information technology allows, regardless of the type of
        medium of the technology--

        * individuals with disabilities who are Federal
          employees to have access to and use of information and
          data that is comparable to the access to and use of
          the information and data by Federal employees who are
          not individuals with disabilities; and

        * individuals with disabilities who are members of the
          public seeking information or services from a Federal
          department or agency to have access to and use of
          information and data that is comparable to the access
          to and use of the information and data by such members
          of the public who are not individuals with
          disabilities.


So reads the core of Section 508. Two questions present
themselves. First, how might the rights secured by this language
be enforced? Secondly, what remedies are available? To begin
with the first question, remember that since Section 508 creates
rights of people with disabilities against the federal
government, the right to sue and the relief available will
depend on the extent of congressional intent to establish the
cause of action and to wave the sovereign immunity enjoyed by
federal agencies. Moreover, Congress is free to waive the
Federal Government's sovereign immunity against liability
generally without waiving immunity from the award of specific
forms of relief. This is illustrated by the Administrative
Procedure Act which provides that those "suffering legal wrong
because of agency action, or adversely affected or aggrieved by
agency action within the meaning of a relevant statute," is
expressly authorized to bring "an action in a court of the
United States seeking relief other than money damages and
stating a claim that an agency or an officer or employee thereof
acted or failed to act in an official capacity or under color of
legal authority." (5 U.S.C. sec. 702)

Building on this foundation, Congress has provided specific
rights to those aggrieved by federal agencies which fail to
comply with the Section 508 requirements. The enforcement
provisions of Section 508 read as follows:


  * Enforcement.

    * General.

      * Complaints. Effective 2 years after the date of
        enactment of the Rehabilitation Act Amendments of 1998
        [enacted Aug. 7, 1998], any individual with a disability
        may file a complaint alleging that a Federal department
        or agency fails to comply with subsection (a)(1) in
        providing electronic and information technology.

      * Application. This subsection shall apply only to
        electronic and information technology that is procured
        by a Federal department or agency not less than 2 years
        after the date of enactment of the Rehabilitation Act
        Amendments of 1998 [enacted Aug. 7, 1998].

    * Administrative complaints. Complaints filed under
      paragraph (1) shall be filed with the Federal department
      or agency alleged to be in noncompliance. The Federal
      department or agency receiving the complaint shall apply
      the complaint procedures established to implement Section
      504 [29 USCS Sec. 794] for resolving allegations of
      discrimination in a federally conducted program or
      activity.

    * Civil actions. The remedies, procedures, and rights set
      forth in Sections 505(a)(2) and 505(b) [29 USCS Sec.
      794a(a)(2), (b)] shall be the remedies, procedures, and
      rights available to any individual with a disability
      filing a complaint under paragraph (1).


A number of important provisions in this subsection should be
highlighted. First, remember that those seeking redress of
Section 508 violations must first file an administrative
complaint with the federal agency in question. This is a
categorical first step that must be taken prior to court action.
This so-called exhaustion of administrative remedies is typical
of the enforcement of the civil rights provisions of the whole
of Title V of the Rehabilitation Act. Secondly, note that this
section does not enumerate specific causes of action in federal
court or the remedies available to prevailing parties. However,
it does refer to Sections 505(a)(2) and 505(b) to achieve this
purpose. Those portions of Section 505 of the Rehabilitation Act
(29 U.S.C. 794a read as follows:


. . . . .

    * (2) The remedies, procedures, and rights set forth in
      title VI of the Civil Rights Act of 1964 [42 USCS Sections
      2000d et seq.] shall be available to any person aggrieved
      by any act or failure to act by any recipient of Federal
      assistance or Federal provider of such assistance under
      Section 504 of this Act [29 USCS Section 794].

  * In any action or proceeding to enforce or charge a violation
    of a provision of this title [29 USCS Sections 790 et seq.],
    the court, in its discretion, may allow the prevailing
    party, other than the United States, a reasonable attorney's
    fee as part of the costs.


A few points should be made about this language. First, Section
505(b) makes it plain that attorneys' fees are available. This
is unequivocal evidence for the availability of private rights
of action to enforce Section 508. Secondly, both employees of
federal agencies and members of the public are permitted to file
suit under Section 505(a)(2). Ordinarily, employees with
disabilities facing discrimination by their federal agency
employers would file complaints under Sections 501 and 505(a)(1)
when, for example, reasonable accommodations have not been
provided. However, Section 508 makes no distinction between
employees or members of the public in terms of the rights and
remedies available to them.

Thirdly, the language quoted above incorporates by reference the
rights and remedies available under Title VI of the Civil Rights
Act, in effect creating a private right of action through a mere
statutory cross-reference. However, Title VI of the Civil Rights
Act itself does not provide on its face for private rights of
action or for specific judicial remedies. Thus, Section
505(a)(2) is, to some extent, dependent on judicial
interpretation of Title VI of the Civil Rights Act establishing
the right to sue in federal court. As will be demonstrated
below, courts applying Section 505 to enforce Section 504 of the
Rehabilitation Act have found such a right. In short, the
enforcement of Section 508 is tied by cross-reference to the
Civil rights Act and to the implied rights and remedies under
that statute. This scheme, in spite of its seeming
circumlocution, is an unambiguous establishment of the right of
aggrieved persons to seek and obtain judicial enforcement of
Section 508.

Title VI of the Civil Rights Act of 1964 and Section 504 of the
Rehabilitation Act of 1973 have been referred to as sister
statutes because they were modeled after one another and contain
identical enforcement schemes. See generally Sheldon Joel
Tepler, Implying A Private Cause of Action Under Title VI, 6 U.
Ark. Little Rock L.J. 19, 39 (1983). The legislative history of
Section 504 also demonstrates that it was based upon Title VI.
The language of Section 504 is "virtually identical to that of
601 of Title VI," and in 1978, Congress amended the
Rehabilitation Act to make available the " "remedies,
procedures, and rights set forth in Title VI' ... to victims of
discrimination in violation of 504." Consol. Rail Corp. v.
Darrone, 465 U.S. 624, 626 (1984)

Because Section 504 was patterned after Title Vi and shares the
common objective of prohibiting discrimination by entities that
receive or provide federal financial assistance, courts have
concluded that they are to be construed and applied in the same
manner. This parallel development provides strong evidence for
the conclusion that the presumption of private rights of action
and all appropriate remedies that the Court has recognized
regarding Title VI also apply to Section 504 and, by extension,
to Section 508 as well. Some examples may illustrate this point.

In Tanberg v. Weld County Sheriff, 787 F. Supp. 970 (D. Colo.
1992), the U.S. District Court for the District of Colorado,
recognizing the relationship between the Civil Rights Act and
Section 504, ruled that a claim for compensatory damages was
available under Section 504 on the basis of the "deeply rooted
presumption that "where legal rights have been invaded, and a
federal statute provides for a general right to sue for such
invasion,' all appropriate remedies are available to a claimant
unless Congress expressly indicates otherwise." Id. at 972
(quoting Franklin v. Gwinnett County Public Schools, 112 S. Ct.
1028, 1033 (1992)).

The Supreme Court's holding in Franklin, cited above, sheds
light on this issue. The Franklin case concerned the enforcement
of provisions of law barring discrimination on the basis of sex
by educational institutions receiving federal financial
assistance. The plaintiff in Franklin alleged that she was the
victim of sexual harassment by her teacher, and she sought,
among other relief, compensatory damages. The Franklin Court
recognized that the statute in question, Title IX of the
Education Amendments of 1972, was itself based on Title VI of
the Civil rights Act and incorporated Title VI's implied rights
of action and remedies. See generally, Kelly S. Terry, Franklin
v. Gwinnett County Public Schools: Reviving the Presumption of
Remedies Under Implied Rights of Action, 46 Ark. L. Rev. 715
(1993).

Applying the Franklin decision to the Rehabilitation Act, the
U.S. District Court for the District of Columbia concluded that
Franklin makes compensatory damages an appropriate remedy for
violations of Section 504. Doe v. District of Columbia, 796 F.
Supp. 559 (D.D.C. 1992). The court in Doe stated that the
reasoning of Franklin is equally applicable with respect to 504
of the Rehabilitation Act. It is well-established that Congress
intended the same remedies to be available under Title IX and
Title VI. Thus, Franklin must establish that damages are
available in Title VI cases as well as Title IX cases.
Similarly, because Congress specifically provided that the same
remedies be available under 504 of the Rehabilitation Act as are
available under Title VI, Franklin must authorize the award of
damages for intentional discrimination under 504. Id. at 572

These cases show that suits against recipients of federal
financial assistance may indeed be brought to enforce Section
504 of the Rehabilitation Act through Section 505. However, the
remedies available against federal agencies are limited. In Lane
V. Pena, 518 U.S. 187 (1996), the Supreme Court, distinguishing
its decision in Franklin, used the language of Section 505(a)(2)
and its dependency on Title VI of the Civil Rights Act to limit
the range of remedies available to plaintiffs suing federal
governmental agencies for violations of Section 504.

Lane's enrollment at the United States Merchant Marine Academy
(which is administered by the Maritime Administration within the
Department of Transportation) was terminated on the ground that
his recently diagnosed diabetes mellitus rendered him ineligible
to be commissioned for service in the Navy/Merchant Marine
Reserve Program or as a Naval Reserve Officer. Alleging that his
separation from the Academy violated Section 504, Lane sued
seeking reinstatement to the Academy, compensatory damages, and
other remedies. The District Court ordered him reinstated, but
ultimately ruled that he must be denied compensatory damages
because Congress has not waived the Federal Government's
sovereign immunity against monetary damages awards for Section
504 violations. The Court of Appeals summarily affirmed the
District Court's decision.

In affirming the Court of Appeals, the Supreme Court held that
Congress has not waived the Government's sovereign immunity
against monetary damages awards for Section 504 violations.
According to the Court, the requisite "unequivocal expression"
of congressional intent to grant such a waiver is lacking in the
text of Section 505(a)(2), which decrees that the remedies
available for violations of Title VI of the Civil Rights Act of
1964, including monetary damages awards, apply also to Section
504 violations "by any . . . Federal provider of [financial]
assistance." This provision in Section 505 makes no mention
whatsoever of programs or activities conducted by any Executive
agency, the language Congress employed in Section 504 itself.
Id. At 194. In other words, though the 504 gates are wide, the
505 door is much narrower. Unfortunately, it is that same narrow
door through which Section 508 complaints must pass to get to
court.

Lane had argued, however, that the Department of Transportation
is a "federal provider" within the meaning of Section 505(a)(2)
and thus is liable for a compensatory damages award. The Court
disagreed, holding that the Department of Transportation,
whatever its other activities, is not a "federal provider" of
financial assistance with respect to the Merchant Marine
Academy, which the Department itself administers through the
Maritime Administration. The Court based its analysis on its
decision in Department of Transp. v. Paralyzed Veterans of
America, 477 U.S. 597, 612, (1986), which indicates that funds
that are actually provided to an entity that the Federal
Government manages itself, the situation in Lane, do not render
the agency a "Federal provider"). Lane had argued further that
Section 505(a)(2)'s reference to "Federal provider[s]" is not
limited by the text of the provision itself to the funding
activities of those providers, but instead reaches any act of an
agency that serves as a "federal provider" in any context.
Responding to this argument, the Court stated, "In light of our
established practice of construing waivers of sovereign immunity
narrowly in favor of the sovereign, however, we decline Lane's
invitation to read the statutory language so broadly." Lane, at
195.

Even though monetary damages, such as compensatory and punitive
damages will not be awarded in those cases where federal
agencies have violated the provisions of Section 508 because
sovereign immunity has not been waived, courts following the
case law outlined above, as well as the clear holding in Lane,
will recognize a cause of action under 508 and award equitable
relief. One interesting question concerns the variety of
equitable relief that courts might recognize. For example, back
pay awarded to those terminated from employment is often
considered to be a form of equitable relief because it makes the
plaintiff whole. In contrast, compensatory damages tend to be
prospective in that they compensate for opportunities lost.
Where some courts might award back pay along with reinstatement
as part of the equitable relief granted, courts closely adhering
to the strict view of the Lane decision are likely to view back
pay simply in terms of money damages without distinction and
withhold their award.

Conclusion

In the Section 508 context, then, the Lane decision has
significant implications. Section 508 specifically identifies
the remedies allowed under Section 505(a)(2), which are in turn
implied under Title VI of the Civil Rights Act of 1964, as the
rights and remedies available to address violations of the
federal government's obligation to provide accessible electronic
and information technology. Although referencing Title VI means
that a cause of action is available, this mere statutory
cross-reference comes with the baggage, according to the Supreme
Court, of a lack of clear congressional intent to wave federal
sovereign immunity from the award of damages. It should not be
forgotten, however, that Section 505(b) explicitly allows courts
to award reasonable attorneys' fees using language that the Lane
Court sees as unambiguous. Lane, at 194. Therefore, plaintiffs,
whether federal agency employees with disabilities or members of
the public with disabilities can sue for declaratory and
injunctive relief without question and can recover the costs of
such litigation, but no compensatory or punitive damages will be
awarded. Lastly, regardless of any limitations on the range of
remedies available under Section 508, federal employees with
disabilities continue to be able to lodge complaints of federal
agency discrimination under Section 501. Doing so avoids the
sovereign immunity problem and should result in the availability
of money damages because the Lane Court sees the language of
Section 505(a)(1), the remedies applicable to Section 501
complaints, to be substantially clearer. Id. at 193. As a
result, federal employees will want to file complaints under
both Sections 501 and 508 to ensure availability of the full
range of remedies should action in court be necessary.

----------
End of Document




