In the wake of COVID-19 pandemic, many—if not most—attorneys have worked from home in recent months. While some miss the office, the pandemic provides disabled attorneys unparalleled access to telecommuting, which also allows for increased access to alternative scheduling and, for some, increased comfort, because it allows us to stay in the environment that is likely most tailored to our needs. Efforts by law firm management and firm Human Resources departments to support the continuation of alternative workplace and scheduling policies post-pandemic would provide disabled attorneys with inclusive access to the workplace.
Remote working facilitates numerous accommodations that benefit people with a wide range of needs. First, being at home is its own benefit. Being at home allows those of us with disabilities to be in an environment we have shaped to best support us. Regardless of the accessibility aids provided to us at work, we are often still more comfortable at home, because it is frequently impossible to completely shape our work environs to our needs.
Some of these changes can seem slight. The absence of fluorescent lighting, often not possible in office spaces, can provide critical comfort to individuals who suffer from photosensitivity related to epilepsy or an autism spectrum disorder. The ability to work in isolation is also critical to many. For instance, group workspaces, though encouraging for some, drastically decrease the productivity of those who experience a wide range of disabilities. Lastly, the security of being at home, in familiar surroundings that we wholly control, is reassuring for many of us with disabilities, myself included.
Other, more obvious, benefits to remote working stem from access to additional adaptive resources not available at work. These vary, and are too numerous to count, but include specialty mobility equipment, improved accessibility, and heavily modified surroundings purpose-built for our needs.
There are innumerable variations and shades to disability. As a person who lives with post-traumatic stress disorder (PTSD) and with motor coordination issues in my right hand resulting from nerve damage, I cannot speak for the experiences of every disabled attorney. Life with disability is nuanced; some needs are obvious, others subtle. Our homes are often a refuge, a place we have crafted to best suit our needs. As a result, many—if not all of us—would stand to benefit from a work culture that supports flexible work environments, even if we have been silent so far.
While the legal field is becoming progressively more inclusive, whether to disclose a disability to colleagues is, for many, still a question rife with trepidation because of our lived experiences. The ADA provides some legal protections from discrimination, but there are still socio-cultural stigmas about our “ability” to succeed in the legal profession.
Undeniably, the practice of law is being shaped by the pandemic and we will emerge changed from it. However, those changes can be positive. A dear friend and mentor described it to me this way: by offering alternative work schedules and environments on a less-rigid basis than often required today, workplaces are not only accommodating those with disabilities but improving the lives of all of their employees who experience situational needs for such accommodation. Most accommodations benefit all employees, not only those who are disabled, though it is regrettable that the needs of disabled lawyers often must be framed in terms of how they benefit non-disabled colleagues and the financial bottom line.
HR departments should evaluate all of their current training programs and policies to see how they address disability. Particular attention should be paid to the current internal policies about accommodations, how they are evaluated, and through what lens they are viewed. Are accommodation requests treated as routine, or do they draw attention? If they draw attention, what kind of attention are they paid? What is the office culture surrounding accommodations like? Questions like these should be central to the evaluation of internal policies and procedures to gauge whether the programs are not only sufficient, but affirmatively supportive of disabled employees.
By making your workplace more accessible through continuing open remote work options after the pandemic, you will be empowering employees who are concealing their disabilities or coping with what they limit themselves to so as to not be perceived negatively. While data is hard to find, a 2018 article from Law360 noted that in December 2017, the “National Association for Law Placement polled law firms and found that about 0.6 percent of their associates and 0.4 percent of partners reported having disabilities.” These numbers stand in stark contrast to those reported by the American Bar Association in a 2013 survey of its membership, which “found the number of attorneys with disabilities to be closer to 8 percent.”
These numbers are likely still under-representative. Reporting numbers are limited by several factors, including the stigma surrounding mental illness and other invisible disabilities such as epilepsy. While those with visible disabilities are forced to disclose, those of us who can conceal our disabilities often choose to for many reasons. The likelihood of concealment is greater for lawyers who must navigate several identities at once, particularly for attorneys of color and transgender attorneys. We end up prioritizing what we disclose based on what needs and circumstances must be met first.
HR departments can greatly improve the workplace environment and increase disclosure in several ways. First, they can set policies that encourage current and new employees to report by creating a culture where new attorneys know from their first day that disclosing a disability will not hinder their advancement. Second, they can implement implicit bias training for all employees to both measure and reprogram existing implicit biases about disabled attorneys and employees. Additionally, the HR department can suggest and support the creation of a disability affinity group, which goes even farther to support the disabled attorneys in your office. The ABA Commission on Disability Rights provides several resources for attorneys and legal professionals on implicit biases about disabled people, as well as some toolkits, training, and CLEs about accessibility, ADA compliance, and more.
Professionally, as a Potawatomi attorney who works at a specialty law firm focused on serving Indian Country, I benefit from being an enrolled member of my tribe. Before being hired by Big Fire, I benefited from the ability to pass as white while on the job market. However, I do not necessarily benefit from advertising that I have disabilities, or from advertising my sexuality. And, when applying for jobs and interacting with workplaces as a student and as an attorney, I prioritize the visibility of the latter two based on risk mitigation and perceived stigma.
If you look around your organization, or at your recruit pool, most likely people who have undisclosed disabilities are working for you right now because they determined it is safer for them to keep their disability private and not risk negative professional impact. I was one of those people. My employer found out that I suffered from PTSD and neurological damage when I had to apply for a second bar exam during my second month as a first-year associate because of the days of paperwork required for the disability accommodation application. Even though I work for a forward-thinking law firm, I still chose not to disclose my disabilities until it became necessary out of the learned concern that I would be treated differently after disclosure. My disclosure was taken in stride because I am fortunate enough to work for a law firm whose culture is founded on principles of diversity, but that is not a universal outcome.
I was also fortunate to attend a law school with an administration that supported their disabled students and took accommodation requests in stride. The administration’s support, however, was not always echoed by the students. Some students viewed those of us who received disability accommodations as “cheaters,” as though we were “gaming the system.” If we disclosed our disabilities, our success was chalked up to “handouts.” The more axes of difference a student experienced, the worse the rumors. These rumors existed even though disability accommodations are proven to just make it feasible for us to make the same attempts at success as able-bodied persons. Assumptions about our perceived limitations and inabilities follow us from the onset of our disability onwards, a specter that persists despite ample proof to the contrary.
It is common knowledge that these stigmas persist in law firms. The first-phase findings of a national study of lawyers with disabilities and lawyers who identify as LGBT+ conducted in collaboration with the ABA indicate that of the 25 percent of respondents who “reported a health impairment, condition, or disability,” a third reported subtle but unintentional bias in the workplace, almost 20 percent reported discrimination, about 14 percent reported being bullied, and 12 percent reported being harassed. This study also documents requested accommodations and the outcomes of those requests, which is potentially educational for HR personnel. Notably, the study found that the two most requested accommodations were schedule change and working remotely.
Nevertheless, the common conflation of disability with inability is one of the reasons that the most important change for creating a more accessible workplace must take place at the workplace’s cultural foundation. Affirmative workplace policies, alongside employee training and continuing education about disabilities, affinity groups, and supportive management, will give disabled attorneys the opportunity to not only succeed but to thrive.
About the Author
Calandra McCool is an associate attorney with Big Fire Law and Policy Group, a Native American owned law firm based in Nebraska. She focuses her practice on litigation in tribal and federal court. She is an enrolled member of the Citizen Potawatomi Nation.