The Americans With Disabilities Act (ADA), passed in 1990, prohibits discriminating against workers based on their disabilities. Yet the reality is that lawyers with disabilities continue to struggle with discrimination in the profession. To this day, they continue to be significantly underemployed and often face difficulty when attempting to obtain necessary accommodations to enable them to function effectively on the job.
However, given the variety of practice areas and styles, legal employers can be at the forefront of providing accommodations and ensuring equal access for people with disabilities in the workplace. All it takes is a basic understanding of the law, some planning-and a willingness to discuss the issue.
The California State Bar recently published a report, based on its survey of lawyers with disabilities, that highlighted substantial disparities between them and lawyers without disabilities. (See "Challenges to Employment and the Practice of Law Continue to Face Attorneys with Disabilities," results of a 2003 online poll of California attorneys with disabilities conducted by the State Bar of California Committee on Legal Professionals with Disabilities, 2004.)
Of the lawyers who responded:
28 percent worked as sole practitioners; 3 percent worked for large firms
76 percent earned less than $100,000 per year
16 percent had encountered negative comments about their disability from a judge
22 percent faced physical barriers to access in courts, and
at least half of those with hearing or vision disabilities reported having difficulties communicating in meetings and hearings.
Perhaps most tellingly, 45 percent said they believed they had been denied employment opportunities because of their disabilities.
Respondents also described their perceptions that many law firms do not want to hire attorneys with disabilities because they do not want to deal with "the hassle" or expense of accommodating them, or because clients might be "uncomfortable" working with them. In addition, some reported that employers said their disabilities would prevent them from carrying their workload.
As these findings demonstrate, significant challenges remain in meeting these lawyers' needs. However, the laws that protect employees with disabilities can serve as both a legal and practical framework for addressing the issues involved.
SOURCES OF EMPLOYMENT PROTECTION
Lawyers with disabilities in California have two basic employment protections: Title I of the Americans With Disabilities Act, which covers private employers with 15 or more employees, as well as people working in state and local government (42 U.S.C. §§ 12101 12213); and the California Fair Employment and Housing Act (FEHA), which applies to private employers with 5 or more employees, and to state and local government workers. (Cal. Gov't Code §§ 12900 12996.) One or both of these statutes cover most law offices.
WHO IS PROTECTED
The state and federal laws have similar nondiscrimination mandates, but the operative word disability is currently defined more expansively under the California statute. The FEHA covers people who have a mental or physical condition or disorder that limits a major life activity, have a record of such a condition or disorder, or are regarded as having such a condition or disorder. (Cal. Gov't Code §§ 12926(i) & (k).) To qualify, the limitation must make it difficult to perform a major life activity. (Cal. Gov't Code §§ 12926(i)(1)(A) & (k)(1)(B)(ii).)
Mitigating measures, which include such things as corrective lenses that address a vision disability or medication that addresses a seizure disorder, are not considered in the analysis, unless the measure itself limits the major life activity. (Cal. Gov't Code § 12926(k) (1)(B)(i).) For example, the employee may still need accommodations to deal with a medication's side effects.
Individuals are protected under the ADA if they have a physical or mental impairment that substantially limits a major life activity, have a record of such an impairment, or are regarded as having such an impairment. (42 U.S.C. § 12102(2)(A).) The definition of disability in the federal statute is narrower than that under the FEHA, partially due to case law that has interpreted the concepts of substantial limitation and major life activity restrictively. (See Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and 29 C.F.R. § 1630.2(j).)
In California, more people will be covered by the state statute than by the ADA. However, employers should understand the coverage and obligations encompassed in both laws.
Both the ADA and FEHA prohibit discrimination in all employment practices against individuals with disabilities who can perform the essential functions of their positions, with or without reasonable accommodation. (42 U.S.C. § 12112; Cal. Gov't Code § 12940.)
Covered employment practices include job advertisements, applications, recruiting, hiring, firing, leave, layoff, reinstatement, reassignment, tenure, promotion, testing, training, compensation, benefits, and all other terms and condition of employment. (29 C.F.R. § 1630.4; Cal. Gov't Code § 12940(a).)
Essential functions are defined as fundamental job duties an employee must be able to perform, also with or without reasonable accommodations. (29 C.F.R. § 1630.2(n); Cal. Gov't Code § 12926(f).)
Unlawful discrimination under both the ADA and the FEHA includes failure to provide reasonable accommodations for the known disabilities of an applicant or employee, unless the employer can demonstrate that the accommodation would impose an undue hardship or pose a direct threat to the health or safety of the employee or others. (42 U.S.C. § 12112; Cal. Gov't Code § 12940(m).)
An accommodation may be any change or adjustment in the work environment, or in the way things are customarily done, that enables an individual with a disability to enjoy equal employment opportunities. (29 C.F.R. § 1630.2(o); Cal. Gov't Code § 12940(n).) The accommodation must be effective-that is, it must meet the person's needs. And this determination must be made on a case-by-case basis. Employers may choose among various effective accommodations, but they should give primary consideration to the employee's preference.
Reasonable accommodations for attorneys may take many forms. Common examples include:
making existing workplaces accessible-such as by installing a ramp, widening a doorway, or reconfiguring a workspace
restructuring responsibilities of the position, such as removing a marginal function
permitting part-time or modified work schedules
allowing unpaid leave once an employee has exhausted employer-provided leave such as vacation or personal days
providing qualified readers or sign language interpreters
changing methods of supervision-such as allowing a supervising partner to provide an associate with work critiques by email rather than in face-to-face meetings, and
reassigning the employee to a vacant position that is more suitable.
(See Reasonable Accommodations for Attorneys with Disabilities, U.S. Equal Employment Opportunity Commission, 2006.)
This list is not exhaustive. Further examples: A lawyer with a vision disability may need a screen-reading audio program for his or her computer. And lawyers with disabilities that affect manual dexterity, such as arthritis, may need assistance taking notes during meetings or court appearances.
Many employers simply assume that accommodations will be too costly or difficult to provide. In fact, studies have found that most accommodations require little or no expense. The Equal Employment Opportunity Commission (EEOC), the agency that enforces the ADA, reports very few instances in which employers of any size assert that an accommodation is too costly. (See "EEOC Fact Sheet on Legal Employers and Reasonable Accommodations," from Christopher J. Kuczynski's remarks, The National Conference on the Employment of Lawyers with Disabilities: A Report From the American Bar Association for the Legal Profession, 2006.)
Employers also may mistakenly assume that an employee's request for accommodation is a sign of weakness or inability to meet the employer's needs. This may be especially true in a profession such as the law that often requires long hours or tight deadlines.
It is important to remember, however, that the need for a reasonable accommodation does not signal an inability to do a job. Rather, accommodations can enable attorneys with disabilities to perform their jobs and meet the needs of employers and clients. During the accommodation process, legal employers should strive to remove assumptions from the equation and develop an understanding of the facts involved.
THE INTERACTIVE PROGRESS
To overcome assumptions and stereotypes about accommodations, the ADA and the FEHA require employers to prevent discrimination before it happens. To accomplish this, an employer must engage in an individualized, interactive process when an employee requests accommodations or when the employer knows an accommodation is necessary. (29 C.F.R. § 1630.2(o)(3); 29 C.F.R. pt. 1630 app. §§ 1630.2(o), 1630.9; Cal. Gov't Code § 12940(n).)
The goal of this process is to determine whether an employee is covered under the statutes and to discern the need for the accommodation. If there is any reason the requested accommodation cannot be provided, the employer and employee should discuss possible alternatives. The employer should continue to search for an acceptable solution until an effective reasonable accommodation is found or no longer needed.
As in other workplaces, the nondiscrimination and reasonable-accommodation obligations extend in the legal profession to ensuring equal access to the "benefits and privileges of employment." (29 C.F.R. § 1630.2(o)(iii); Cal. Gov't Code § 12940(a).) These may include employer-sponsored training programs; services such as credit unions, cafeterias, lounges, gymnasiums, auditoriums, and transportation; and social and professional functions, such as parties to celebrate retirements and birthdays, and company retreats. (See Reasonable Accommodations for Attorneys with Disabilities, EEOC, 2006.)
In law firm settings, access to employer-sponsored social, educational, or networking events can be particularly critical for attorneys to advance and integrate into the firm. For example, administrators at large law firms often take their lawyers to social events, but they may not consider whether those events are accessible to the lawyers with disabilities who work there. It is important to ensure that all such events-even impromptu or informal ones-include everyone. (See "Disability Rights Perspective Applied to Legal Employers," remarks by Arlene Mayerson, ABA Report, 200506.)
ACCOMODATIONS BY OTHERS
It is also critical that legal employers ensure their lawyers' access to the courts and obtain accommodations through the court system, MCLE providers, and other organizations.
In the State Bar report cited earlier, the situations in which attorneys reported encountering refusals or resistance to making reasonable accommodations for their disabilities occurred most often in their legal employment setting (24 percent). A close second was court hearings or conferences (21 percent), followed by opposing counsel or parties (13 percent) and nonjudicial proceedings (also 13 percent).
Legal employers should also understand the obligations other entities have for their employees with disabilities. These include the nondiscrimination requirements for public entities under Title II of the ADA (42 U.S.C. §§ 1213112165) and for public accommodations under Title III of the ADA (42 U.S.C. §§ 1218112189). For example, an MCLE course provider is legally obligated to make accommodations available to all attorneys who attend. Similarly, the state court system is obligated to provide accommodations and remove architectural barriers.
In California, Rule of Court 1.100 and Judicial Council Form MC-410 address requests for accommodations by people with disabilities. Legal employers should become familiar with all of these procedures to ensure that accommodations are available to their attorneys outside the office.
THE PROACTIVE APPROACH
In addition to legal employers' clear obligations outlined above, they can do a number of things to foster a climate to provide accommodations. Among them:
adopting policies for how to handle requests for accommodation, and ensuring that these policies are publicized and implemented
ensuring that both employees and managers know that the firm supports full compliance with no
training supervisors, managers, and human resources professionals to properly handle requests for accommodations and other nondiscrimination requirements
developing job descriptions for all job categories that include essential functions for every position
confirming requests for reasonable accommodations in writing, and
responding as quickly as possible and documenting all efforts to accommodate.
Lawyers and law firms can go even further to foster an environment where lawyers with disabilities can succeed. They could have senior partners take the lead in recruiting and retaining lawyers with disabilities; conduct an internal audit to identify barriers for lawyers with disabilities; develop an effective mentoring program; or ensure that all materials used in the firm convert easily for accommodation requests. (See "Best Practices for Law Firms," from William H. Grignon's Law Firm Best Practices Guide and "Best Practices in the Pre-Employment Application Process," from Kathi J. Pugh's remarks, ABA Report.)
Finally, legal employers should consult the many sources of information on this subject-including those discussed in this article-for additional help and suggestions.
Shawna L. Parks is director of the Civil Rights Litigation Project at the Disability Rights Legal Center in Los Angeles.