Memo Regarding Remedies Available Under Section 508 of the Rehabilitation Act
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.
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:
(a) Requirements for Federal departments and agencies.
(A) 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--
(i) 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
(ii) 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:
(A) 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.
(B) 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].
(2) 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.
(3) 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:
(A)(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].
(B) 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.
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.
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