ADA Protects Lawyers With Disabilities, But We Must Do More
NCBA's Diversity & Inclusion Committee shares this article with you as part of its initiatives to educate NCBA's members on discrimination in the legal profession, including against people with disabilities.
It is a common knowledge for many employers, including law firms, that people with disabilities cannot be discriminated against in the workplace and may be entitled to accommodations.
Last month, we celebrated the 30th anniversary of the Americans with Disabilities Act, the civil rights law that gives people with disabilities these protections along with many more. While the ADA should be celebrated for the impact it has made, we also cannot forget that more needs to be done. Law firms need to create more tools in their toolbox to accommodate people with disabilities.
As a young attorney with cerebral palsy, a physical and developmental disability, the ADA has not only provided me with protections against discrimination because of my disability, it has also provided me with the confidence that I can become a successful and productive attorney. My cerebral palsy does not limit me much, but there are certain things that are more difficult.
For instance, because my muscles fatigue easily, I am unable to write more than a paragraph or two at a time, or stand for long periods. These challenges can make a productive workday more demanding. The good news is that because of the ADA, it is easier to navigate these challenges and find solutions that enable me to be productive. Specifically, the ADA has ensured that my disability is not a hindrance to my employment and guaranteed that I am entitled to reasonable accommodations.
The Strides We Have Made Today
One of the many protections the ADA provides is the assurance that an employer cannot reject a job applicant solely because they have a disability. Additionally, the ADA also states that an individual is not required to disclose their disability to their employer.
Some may not understand why a person would not disclose their disability to their employer, especially when they may need accommodations to perform their job. Many people with disabilities, including lawyers, fear the stigma that they may face if their disability is disclosed. In the legal profession, where intelligence and aptitude are key, the last thing a lawyer wants is to be classified as lacking in intelligence or weak because they have a disability.
The ADA also provides that employers must make reasonable accommodations for employees with disabilities. One thing to understand about accommodations is that they are not costly arrangements that are burdensome to the employer and they do not give people with disabilities an unfair advantage. In reality, many accommodations are at little to no cost, may be a one-time occurrence, and allow those with disabilities to be on the same playing field as their peers.
Accommodations are, and should be, determined based on the individual and their needs. To illustrate how accommodations can help a lawyer with a disability be more successful, I would like to share how my accommodations help me to be more productive.
My cerebral palsy causes muscle spasms, which can be triggered when my arms are extended outwards. Little things, like having a keyboard tray, are helpful so I can better position my arms to be closer to my body, thus avoiding the painful and annoying muscle spasm.
When my law firm renovated its office space, the first thing I noticed was that there was no keyboard trays underneath the desk in my new office. When I thought about working without a keyboard tray, I cringed at the thought of a muscle spasm.
I emailed human resources, asking what my options were, and within minutes they told me a keyboard tray would be installed in my new office. A keyboard tray seems like a small thing to most, but for me, it can make or break a productive and pain-free workday.
Handwriting and note taking is a normal and everyday task for most lawyers, especially junior lawyers. However, handwriting requires fine motor skills and semifast muscle movements — two things that are not easy for someone with cerebral palsy. If you couple this with the task of listening to someone speak simultaneously, you can be sure that I am not absorbing what the speaker is saying because my mind is too focused on controlling my muscles.
Somewhere in the middle of my first year of practicing, I noticed that some of the mistakes I was making in my work were due to me not absorbing the instructions given while I was taking notes. When I brought this issue up with HR, they were able to provide me with creative solutions, such as sending me to a class to teach me the art of shorthand note taking. Ultimately, we decided together that it would make the most sense for me to ask the assigning attorney to clarify the instructions through email so there are no discrepancies.
Working From Home
There is the occasional day when my muscles decide that they want to, literally, be a pain and fatigue easy. While I could power through it and go to the office as I normally would, it would not lead to a productive day as my body would be fatigued by the time I get to the office. A helpful solution on those days is for me to work from home. This allows my body to be comfortable, while still having energy to do my work.
Typically, working from home has its challenges because it doesn't allow for face time with other attorneys, something that is important, especially for a new or junior attorney. As a result of the current pandemic, many people are being forced to work from home and law firms are finding new ways to keep their attorneys connected with one another. While the option to work from home occasionally has always been an accommodation for me, it may become a more useful accommodation if law firms continue their current practices of engaging attorneys remotely.
The Future We Need to Strive For
Undoubtedly, we have made great progress within the last 30 years because of the ADA. However, there is a lot of progress that still needs to be made.
Lawyers with disabilities still face challenges in the profession because of the attitudes and perceptions around disabilities and the barriers the legal profession places on applicants who want to enter the profession. Additionally, the legal profession as a whole needs to be more aware of the role it plays in contributing to some disabilities.
Understanding Disability and Changing Perceptions
The legal profession cannot change if it first doesn't understand what a disability is and is not. During my young life, I have encountered various assumptions about me ranging from "you don't look like you have a disability" to "you can't do other things, so I assume you can't do this." I can tell you that these are both wrong.
First, the term "disability" is broad and includes a wide range of diagnoses, including but not limited to, cerebral palsy, depression, autism and diabetes. Some, like cerebral palsy, are more visible and others, like depression, are invisible. Secondly, in many instances, a person's disability is not an indicator of that person's intelligence or ability to be a successful attorney.
According to an American Bar Association membership survey, only 8% of lawyers identify as having a disability. To me, this seems shockingly low. The legal profession should make a conscious effort to include lawyers with disabilities and make them feel comfortable. To do this, the profession must first educate themselves and understand what disability is and what it is not.
Making the Entrance Into the Profession More Accessible
Every lawyer can commiserate with the misery the bar exam brings or even the misery the Multistate Professional Responsibility Exam brings. For lawyers with disabilities, they can bring another kind of misery.
Requesting accommodations for these exams is unduly burdensome. In addition to the questions most accommodation request forms ask — most accommodations questions are limited to why the accommodation is needed because of your disability — the professional responsibility exam and some bar exam boards ask questions about any prior treatments you have tried to mitigate the effects of your disability and the outcomes of those treatments.
When I called the National Conference of Bar Examiners to push back on these questions, arguing that they were a bit invasive, I was told I would need to get rediagnosed in order to receive any kind of accommodation. While I fully understand that some disabilities, for example, a broken arm, may require a rediagnosis, it cannot be a one-size-fits-all rule. For instance, cerebral palsy is a lifelong disability that is usually diagnosed within the first few years of a person's life, and requires timely and expensive tests for diagnosis purposes.
Further, many applicants of the Multistate Professional Responsibility Exam and the bar have their accommodations denied, even when other institutions have granted them similar accommodations. My application for accommodations during the professional responsibility exam was partially denied without an explanation, even when I received the same accommodation on the ACT and the LSAT law school aptitude test.
One state's board of bar examiners denied accommodations for one of my colleagues, telling her that because she was diagnosed with attention deficit hyperactivity disorder, known as ADHD, in law school and not earlier in life, she did not qualify for accommodations.
The legal profession needs to change its perception of accommodations and understand that accommodations do not give someone an unfair advantage, but rather give the applicant the opportunity to be on the same playing field as their peers. It is important that we figure out how to grant accommodations that are less burdensome to those with disabilities while maintaining the integrity of these tests.
Becoming Aware of the Role the Profession Has on Disabilities
In recent years, society has learned more about disabilities such as depression and anxiety. An ABA and Hazelden Betty Ford Foundation study found that lawyers are 3.6 times more likely to suffer from depression, with many lawyers saying that the stressful demands of their jobs contribute to their symptoms.
While many of us wish we could make the demands of our jobs less stressful, this is not always easy. However, there are things some law firms and employers could do to ease the stress.
Billable hours are a crucial part of a law firm's business model, but they can be the source of stress and so thought needs to be given as to the effect of those targets and how to help attorneys manage them.
Law firms should also establish firmwide programs that focus on the mental well-being of their lawyers to help them relieve stress. Next, every lawyer deserves a break and vacation can be a great way for an attorney to have some down time and recharge. However, many attorneys still end up working during vacation despite their out-of-office message. It is important that law firms and employers honor a lawyer's vacation time and allow them time to truly unplug without having to be tied to work.
Lawyers with disabilities are included because of the ADA, but the number of attorneys who identify as having a disability is still shockingly low. This is a signal that law firms need to do more on education around disability awareness to make lawyers more comfortable in self-identifying and help change the legal culture to mitigate any disability that may arise from it. Let's not only recognize the strides we have made in the last 30 years since the passage of the ADA, but let's strive to make the next 30 years something to celebrate.
Danielle Liebl is an associate at Reed Smith LLP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
This article was previously published in Law360. Reprinted with permission of the author and Law360.