[blindLaw] Falling Short on Disability Inclusion - Washington Lawyer - April 2021

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http://washingtonlawyer.dcbar.org/marchapril2021/index.php#/p/26
Falling Short on Disability Inclusion
By John Murph
Washington Lawyer
April 2021

James Morgan, a tax law specialist for the Internal Revenue Service (IRS), learned early on that the world could be cruel and he would have to be tough to survive. Growing up in Houston, Texas, he was inaccurately diagnosed with leukemia at the age of seven. His health problems persisted, prompting multiple surgeries that interrupted his formal education. When Morgan was 13, he had to drop out of middle school. Nevertheless, Morgan was a bright student with undaunted drive. Without a formal high school diploma, he attended the University of North Texas and graduated with a bachelor's degree in government. Afterward, he enrolled in the George Washington University Law School. Although he had a health relapse during his last semester, he earned his law degree in 1998. But after passing the bar exam and sending out hundreds of résumés, he couldn't find a job as a lawyer. Morgan went back to school with hopes of bolstering his chances to secure a job. But even after earning a master's degree in public administration in government from Harvard Kennedy School in 2003, landing that attorney job was grueling. "Without exaggerating, I sent out thousands of résumés and got nothing," Morgan says. "No one would hire me because I had gaps in transcripts [and on my résumé] when I was away from school. It was appalling in how difficult it was just to get an interview. There is a strong bias against hiring disabled people. If people can discriminate against you and it's socially acceptable, they will." Disappointed but undefeated, Morgan earned yet another degree, this time in tax law from Georgetown University Law Center in 2008. That finally led to a job, first at PricewaterhouseCoopers and later at the IRS. LEFT OUT OF THE DIVERSITY DIALOGUE The legal field continues to grapple with diversity and inclusion issues. In June 2020, Washington Lawyer reported on Diversity Lab's Move the Needle (MTN) Fund, an ambitious $5 million initiative spearheaded by five leading Big Law firms to develop new approaches to increasing diversity in the profession. The project advocated for the advancement of women, people of color, and members of the LGBTQ community. Caren Stacy, CEO of the Diversity Lab, says the MTN Fund and two other initiatives - the Inclusion Blueprint and the Mansfield Rule - cover lawyers with disabilities, but there have been unique challenges tracking progress on disability inclusion, including decoding the varying definitions of disability. According to Stacy, the American Bar Association (ABA), the Americans With Disabilities Act (ADA), the U.S. Equal Employment Opportunity Commission, and various trade organizations each have their own definition of disability. "If we are going to ask people to collect and monitor data, we have to make sure that everyone is following a similar definition," Stacy explains. And then there's the limited data on lawyers with disabilities. "Many law firms and legal departments were not tracking the representation of lawyers with disabilities," Stacy says. "The Mansfield Rule served as a catalyst for more than 100 law firms to ensure that they are in fact tracking lawyers with disabilities so that they can then judge if progress is being made." The National Association for Law Placement (NALP) reported in 2019 that 0.55 percent of lawyers have disabilities, based on figures from 697 law firms and other offices. NALP's "Report on Diversity in U.S. Law Firms" also stated, "Lawyers with disabilities of all sorts remain vastly underreported, with only about one half of one percent of all lawyers in large law firms being reported as having a disability, a figure that is dramatically at odds with the numbers of students in both the undergraduate and law school settings who report having disabilities." THE COSTS OF INVISIBILITY So, what accounts for this underrepresentation? There are several factors, many of which involve the high competition in the legal field. For many lawyers living with some type of disability, there is concern that employers will perceive their disability as a weakness, that they will not be able to perform their jobs effectively. Not wanting to be identified as a person with a disability has led to isolation for many lawyers. "Twenty percent of Americans are disabled," Morgan says. "But [the majority] of blind people don't know anybody else who's blind." (According to latest figures from the Centers for Disease Control and Prevention, 26 percent of adults in the United States are living with a disability.) A disability can also be invisible or hidden, and lawyers with disabilities have a harder time finding affinity groups or networks to advocate for them. "While I think it would be great if there was something analogous to social justice movements like we see with women or people of color, most people who've been disabled generally don't want to be identified as being disabled," Morgan says. "We just want to lead our lives." Efforts to establish affinity organizations for lawyers with disabilities have resulted in varying degrees of success. There was the National Association of Attorneys With Disabilities, but it dissolved in 2019 after five years of existence. The Disability Rights Bar Association, an online network of attorneys who specialize in disability civil rights law, still remains, as does the ABA's Commission on Disability Rights. "One thing that troubles me is that I think we as a community - and we're getting much better at it - are not as united as some other communities," says James Stearns, regional trade compliance counsel for the Americas at Accenture. "I think there is so much energy in putting ourselves to the top that we're not reaching back and helping others." THE ADVANTAGES OF BEING INCLUSIVE In 2018 Accenture partnered with Disability:IN and the American Association of People With Disabilities to publish "Getting to Equal: The Disability Inclusion Advantage," a report that recognized 45 companies for their outstanding leadership in employment and inclusion over a four-year period. The companies reportedly made 28 percent higher revenue because of their diversity and inclusion efforts regarding attorneys with disabilities. "As disabled people, we work doubly hard to succeed so that nobody can come back to us and say that we weren't effective," says Stearns, who's had cerebral palsy since birth. "We know that if we didn't do well, the next person [with a disability] coming along probably wouldn't get a shot."
Marissa Ditkowsky, a Gallogly Family Foundation Fellow at Tzedek DC, agrees. She has muscular dystrophy, which causes physical pain and fatigue, so much so that she can't walk up and down stairs; she also has a hearing impairment. Nevertheless, she does not look at her disability as an impediment to her lawyering. "If anything, my disability makes me better at my job," Ditkowsky says. "My disability helps me because I work with disabled clients. . . . My disability helps me have a unique perspective to lead this project. Given that, I have a lot of respect from my employers. They really help me and appreciate what I have to say." ADVOCATING FOR ACCOMMODATIONS When it comes to people with disabilities in the workplace, access to reasonable accommodations is paramount. For instance, Stearns's condition limits his ability to travel. For Ditkowsky, in addition to needing access to certain entry points in courthouses and at her workplace, she uses dictation technology in writing legal documents. The ADA, passed in 1990, mandates that a "covered entity" shall not discriminate against "a qualified individual with a disability." It also states that covered entities are required to provide reasonable accommodations to job applicants and employees with disabilities. Examples of reasonable accommodations include alternative communication formats, service animals, accessible parking, equipment, work environment changes, job reorganization, and reassignments. "There are always two questions that come up in my mind: What is a reasonable accommodation that meets my needs, and should I disclose the need for the accommodations?" Stearns says. "That's a very individual consideration. My answer to that [second question] is yes because if you hide [the need for accommodations] and something goes wrong, you've got problems." But even with the ADA on one's side, advocating for accommodations is challenging for some. Morgan suffered so much trauma from being discriminated against and sometimes bullied that it's difficult for him to address his accommodation needs. "Every time I needed reasonable accommodations I was flat on my back," he says. "I avoid mentioning my disability because people in general just really don't care, even people who are quote-unquote empathetic." A PROBLEM THAT PRECEDES THE WORKPLACE Ditkowsky argues that discrimination against people with disabilities in the legal profession doesn't originate in the workplace. Rather, the problem goes back to colleges and law schools. "Fifty percent of disabled people drop out of college," says Beth Karp, director of accommodations for the National Disabled Law Students Association (NDLSA). "And it's not because disabled people are not capable of handling academic curriculums. It's because there was failure to provide equal access, which is common across all educational institutions. People don't see us as valuable in terms of diversity. They don't view us as competent. So, they don't put structures in place that properly provide access." Karp says that colleges and universities across the United States have varying degrees of accommodations for students with disabilities, in part because there is no nationwide standard for those accommodations. "Some schools have a centralized disability service office; others have someone who's specific to the law school working on disability accommodations. There are all kinds of formats for it," she says. Karp, a law student at the University of Chicago, has a visual impairment. Once, she asked a professor to print out the course materials before class. "My school thought that it was acceptable for the professors to give me their slides after class," she recalls. "But I couldn't see them during class. They said that if the professor gives them to you within 24 hours, then you've been accommodated. So, everyone in the class could see the slides except me. And the school somehow thinks that's sufficient access." Tara Roslin, director of research for the NDLSA and a recent graduate of Boston University School of Law, says the ADA stipulates that private and public colleges and universities are mandated to engage in an "interactive process," which involves students with disabilities advocating specifically for their accommodation needs. However, there's no governmental standard about what college administrators can ask regarding the disability and how long the inquiries would take. "One of the things that is particularly hard to deal with are these overbroad medical record requests. We get really stymied by universities," Roslin says. "Certain law schools ask for way too much medical documentation." "The ADA has technical guidance and regulations stating that, actually, medical documentation is not necessary to dispense an accommodation. But because there is this profound mistrust of people with disabilities, [law schools] try to use medical documentation to verify what you're saying. Under the ADA, a personal narrative is considered documentation. We are experts in our own experiences," Roslin says. The NDLSA launched in 2018 soon after Yale Law School's Rebellious Lawyering Conference, which included a disability caucus. "For the first time in each of our experiences, we started exchanging stories about what was happening to us at our respective law schools," Roslin recalls. "It was extremely emotional. People were breaking down in tears because we realized that we were kept apart - it was almost intentional." UNFAIR BAR EXAM POLICIES In July 2020, the NDLSA released its "Report on Concerns Regarding Online Administration of Bar Exams," a compilation of troubling policies such as restrictions on fidgeting, touching one's face, being out of the camera's frame during the examination, and looking away from the computer - all of which can negatively impact students with disabilities. The report was culled from the experiences of 281 students, 260 of whom were registered for various remotely proctored bar exams. Jordan Berger, director of professional development for the NDLSA, lives with multiple disabilities, including one related to a gastrointestinal disorder, which means that she needs immediate access to the bathroom. She also has neurological deficits, which make her work slower, and a visual impairment that causes severe eye fatigue. Last summer, she took the New York State bar exam after graduating from New York University School of Law. "The restrictions they put on the exam, honestly, weren't reasonable for anybody," says Berger, a Skadden Fellow with the National Center for Law and Economic Justice. "I had to go to a doctor to ask them to observe my fidgeting because I didn't know how else to prove to the bar examiners that I wasn't cheating during the exam." "This is another example of the time, money, and energy that disabled law students are forced to expend when we should be studying," says Roslin, who has Sjögren's syndrome and Crohn's disease, both of which cause chronic pain. Roslin applied for accommodations to take the bar exam in three jurisdictions, including the District of Columbia. She says that New York State refused to accommodate her remotely, but the District did. "I feel very fortunate that I had Shela Shanks [director of the D.C. Court of Appeals Committee on Admissions] as an executive who was willing to advocate with the National Conference of Bar Examiners (NCBE) and other organizations for candidates with disabilities. She did that by arranging a different testing format with the NCBE. I was able to leave the screen to go to the bathroom during my exam because the D.C. bar doesn't think that having an accommodation makes you untrustworthy," says Roslin. MOVING FORWARD What must be done to ensure that lawyers and law students with disabilities are included and represented in diversity and inclusion initiatives? In 2014 the ABA amended its "Pledge for Change: Disability Diversity in the Legal Profession" to include law schools and state and local bar associations. Signatories agree to affirm a commitment to diversity, specifically disability diversity, and recognize that diversity is in the best interest of the profession, the people it serves, and the organization making the commitment. Some of the signatories of the pledge include Accenture, Arnold & Porter LLP, and Sidley Austin LLP. It's a start but not nearly enough. "The problem right now of trying to mobilize the community is getting people to come out and declare themselves as being disabled," Accenture's Stearns says. For Ditkowsky, the goal is not only diversity but also inclusion and equity. "Diversity includes being hired, just being there. Being included is actually having people care what we think. We're not even at a place where we know that we exist at certain points. We have a lot of work to do." Reach D.C. Bar staff writer John Murph at JMurph at dcbar.org<mailto:JMurph at dcbar.org>.
Scott, the Democrat who chairs the House Education and Labor Committee, is "equally concerned about the impact the pandemic has had on students with disabilities," according to an aide.
"That is why the chairman supports the American Rescue Plan, which will invest nearly $130 billion in safely reopening schools, including $3 billion in new funding for the Individuals with Disabilities Education Act," the aide said, referring to a COVID-19 relief package making its way through Congress. "If Republicans want to support students with disabilities, they should vote in favor of the American Rescue Plan."