Accessibility in the Workplace: Considerations for IT Professionals

Fredericka Argent, Associate, Covington & Burling LLP and Hannah Edmonds-Camara, Associate, Covington & Burling LLP

Fredericka Argent, Associate, Covington & Burling LLP

Accessible Technology in the Workplace: Reducing the Divide

The importance of ensuring accessible technology in the workplace cannot be underestimated. Accessible technology refers to technology that can be used by individuals with various disabilities, including visual, hearing, mobility and cognitive. Many workplaces are ill-equipped to cater to individuals with both physical and mental disabilities, meaning that the rate of unemployment amongst individuals with disabilities is high: for example, the U.S. Bureau of Labor Statistics reports that as of 2016, fewer than 18 percent of individuals with disabilities are employed, versus over 65 percentage of non-disabled individuals.

There is an immense opportunity for technology to step in and reduce these discrepancies in the workplace. Now that technology is becoming central to almost every industry, it is more important—and arguably easier—than ever before for employers and businesses to ensure that the technologies they install have accessibility features to cater to all employees. For example, companies like Microsoft, Apple and Adobe all include built-in accessibility tools within their product offerings.

Many workplaces are ill-equipped to cater to individuals with both physical and mental disabilities, meaning that the rate of unemployment amongst individuals with disabilities is high

CIOs that place accessibility higher up on their organization’s priority list will not only see a reduction in workplace inequality and create a positive environment for employees, but may also see tangible business rewards: the use of accessible technology is likely to lead to better staff retention and a more productive workforce. The deployment of accessible technology will also benefit customer-facing businesses—especially those organizations that conduct significant elements of their business online.

The Changing Legal and Compliance Landscape for Accessibility

The expectation that businesses will start using accessible technology is increasingly reflected in the legal and compliance landscape. At the international level, the UN’s Convention on the Rights of Persons with Disabilities (“UNCRPD”), Article 5, requires signatory states to “take all appropriate steps to ensure that reasonable accommodation is provided” for persons with disabilities to “promote quality and eliminate discrimination.” Article 9 of the UNCRPD provides that signatories should promote accessible technology. The requirement to make “reasonable accommodations,” which may include providing accessible technology, is reflected as a positive obligation in the laws of multiple EU Member States, the U.S. and Australia. Businesses that fail to adhere to these laws may face lawsuits from employees, customers and others.Hannah Edmonds-Camara, Associate, Covington & Burling LLP

There are a series of national and international rules and standards, which the public sector—and, increasingly, the private sector—are expected to follow, especially when procuring for new technology. In the U.S., for example, Section 508 of the Rehabilitation Act 1973 (“Section 508”) requires federal agencies that develop, procure or use information and communications technology (“IT”) to ensure that it is accessible, both to federal employees and the public (unless to do so would be unduly burdensome). Section 508—the newest version of which came into effect on January 18, 2018—covers all types of IT, including web content and software.

Section 508 is closely aligned with the principles adopted at the EU level under standard EN 301 549. Similarly to Section 508, this EU standard sets out a series of “functional performance requirements” that IT products or services must meet in order to be deemed accessible. For example, IT must be usable for those without vision, without hearing, without vocal capability, with limited manipulation, for those who experience photosensitive seizures, and those with limited cognition. Public sector entities are expected to use the accessibility standard as an award criterion when procuring for IT products and services.

Unlike Section 508, adoption of the requirements in EN 301 549 is voluntary. This could change, however, when the EU adopts new accessibility legislation, the European Accessibility Act. This Act will harmonize the requirement across the EU for certain technology products and services sold to customers to comply with accessibility requirements and avoid sanctions. It may be possible, in future, for organizations that are covered by the Act to demonstrate their conformity with the accessibility requirements by certifying their adherence to EN 301 549.

Despite its voluntary status, compliance with EN 301 549 is increasingly recognized, by disability advocacy groups (such as the European Disability Forum) and even by other jurisdictions, as a reliable indicator of the accessibility of particular technology. For example, in 2016, the Australian Standards Body (Standards Australia), adopted EN 301 549 as a voluntary Australian Standard to be used by government organizations when procuring for IT.

Websites and mobile apps are also subject to accessibility standards contained in the Web Content Accessibility Guidelines (“WCAG”) 2.0.Compliance with WCAG 2.0 has been enshrined in law in the U.S. and EU: in the U.S., Section 508 requires all covered IT to conform to so-called “success” criteria in WCAG 2.0. In the EU, public sector bodies are required, by law, to ensure that their websites and mobile apps are more accessible; they cans how their compliance if they meet the standards set out in WCAG 2.0, which are incorporated within EN 301 549.

Even though accessibility is regulated in different ways across the U.S., EU and Australia, the standards and rules adopted are generally closely aligned in terms of their substance. This means it is easier for technology companies to comply and for public sector—and private sector—entities to procure for IT that conforms with global accessibility principles.

Practical next steps

It would be prudent for businesses to begin thinking about accessibility when procuring for technology in the workplace. We recommend the following steps:

• CIOs should review their organization’s approach to IT procurement, and whether accessibility is one of the award criteria. If not, CIOs should consider educating the organization on why it is important to change this.

• CIOs could recommend that their organization assesses which IT or technology vendors on the market offer compliance with the standards in Section 508 or EN 301 549. For example, Microsoft’s Office 365—which includes an “Accessibility Checker” that identifies accessibility issues in documents and proposes fixes—is designed to meet the requirements of EN 301 549.

• IT vendors should be able to demonstrate their compliance with accessibility standards, for example, by self-certification or by accreditation from an independent body.