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Overall, labor force participation for people with disabilities 16-64 years of age is only 32.7%, whereas for people without disabilities, it is 75.7%. Disability Employment Statistics, U.S. Dep’t of Labor, Off. of Disability Emp. Pol’y, https://www.dol.gov/agencies/odep/publications/statistics (last visited Oct. 10, 2020). That’s quite a disparity. Although there are a number of reasons for this disparity, employers and the environments they foster play a large role in our ability to find and retain jobs. Here are some of the most important ways that employers can ensure they are attracting the best applicants, accommodating disabled employees, and creating a safe and inclusive environment for everyone.
- Disability is diversity.
When you put together diversity fellowships, remember that disability is an aspect of diversity. Disabled is often excluded and forgotten, but our perspective is a valuable contribution that is based in our experience of marginalization and oppression.
2. While disability is diversity, we are not just a diversity hire.
You should be hiring disabled people outside of your diversity fellowships too. We are not charity hires. We are competent at our jobs. We bring valuable perspectives. Moreover, assuming your business or office and the position is covered by the Americans with Disabilities Act (ADA) or the Rehabilitation Act in some manner, non-discrimination in your hiring practices is simply the law.
3. Include non-discrimination statements that include disability and instructions about asking for accommodations in your job postings.
If you make it clear, up front, that you make it a practice to hire disabled employees, and you show that you are thinking about the fact that applicants might require accommodations, disabled prospects might be more enticed to apply. It shows that you are, at a minimum, aware, and potentially creating a safe environment. It demonstrates a commitment to inclusion. You may be missing out on incredible applicants simply because you did not include a non-discrimination statement or instructions about asking for accommodations throughout the application process in your job postings.
4. Make sure your application process, job advertising, and website are accessible and compliant.
If your application process, advertising, and website are not accessible or compliant, disabled applicants will not be enticed to apply, nor will they be able to access the posting. It is as simple as that. If the process is completely inaccessible, some may assume your office has not thought about or engaged in these issues sufficiently and may not be the best environment. Others may give up altogether, or completely miss the opportunity because they cannot access it. Advertising in different formats is extremely important. Making sure your website is accessible is vital. Ensuring your application process is simple and accessible is a must. Including instructions for requesting accommodations in your job posting will also be helpful for working out any issues that might arise with accessibility. It is not an excuse to not educate yourselves or to ensure the process is as accessible as possible. However, some applicants may have individual needs that come up that you can address together.
5. Foster an environment that is safe and accepting of disabled employees.
When disabled employees do not feel safe or accepted, they will not be effective employees. Their time will be spent feeling anxious about their workplace. Additionally, they may not request accommodations that may help them to be more efficient at their jobs. You may not even be aware that some of your employees are disabled. Around half a percent to one percent of associates disclosed their disability in the 2019 Report on Diversity in US Law Firms by the National Association for Law Placement, a statistic that hasn’t changed since the NALP began reporting disability diversity. Nat’l Ass’n for Law Placement, 2019 Report on Diversity in US Law Firms 2, 8 (2019), available at https://www.nalp.org/uploads/2019_DiversityReport.pdf. Additionally, many people have invisible disabilities, and may try to get by without disclosing or asking for needed accommodations.
A one-time, passive training? That does not work. A top-down, sustained effort to reiterate a commitment to non-discrimination, acceptance, and inclusion? That’s a different story. Real change comes from the top. You must also ensure there are real consequences for discrimination in the workplace, including disability discrimination. These instances of discrimination include aggressions (known commonly as micro-aggressions) that many might not believe are harmful, but they perpetuate dangerous and inaccurate stereotypes about disabled employees. Zero-tolerance policies are not necessarily effective, however. The response must be proportionate to the conduct. Accountability for action is the key; growth is the goal.
For more information about effective training, accountability in leadership, and consequences for employees, you can check out the EEOC “Select Task Force on the Study of Harassment in the Workplace” at https://www.eeoc.gov/select-task-force-study-harassment-workplace.
It is also important to ensure that disabled perspectives are considered. Learn about disability from disabled folks. When your trainings on disability are led by non-disabled individuals, you may be missing some critical perspectives about our needs in the workplace. Further, not every disabled person has the same needs. We are not a monolith. You must ensure that you continue to consider disabled perspectives.
Finally, fostering unhealthy work environments and attitudes that normalize behaviors that, per se, may exclude disabled employees or make them uncomfortable to disclose is a huge issue. These attitudes are prevalent in larger firms, for example. However, they are simply not necessary to be effective at one’s job.
6. Provide reasonable accommodations that your employee requests.
Don’t make us fight. It’s exhausting. And we have had to do it before. We have to keep doing it over and over again. When we request something, it’s because it’s going to help us do the best job possible. We are not doing it to spite you. We are doing it because we want to do the best work possible. When you deny accommodations, you are making it impossible for us to do our jobs.
Much of the time, these fights are about issues that, frankly, there is no excuse for but preference, discriminatory attitudes, and misconceptions about productivity. When we discuss accommodations like teleworking or flexible schedules, we are often met with extreme reluctance. However, with the pandemic, we know that these options can be put in place quite easily, and the excuses that have been made in the past are largely null and void.
There are misconceptions that disabled employees will consistently miss court-imposed deadlines, as well. Non-disabled attorneys also do that, and that is an ethical issue. If you have an internal deadline that you are concerned about, I would urge you to work with the employee to come up with creative solutions to ensure that the work is complete at the point it must be done. Assuming the employee cannot meet a deadline, or that it is impossible to come up with a solution, is ableist
There are also a number of misconceptions about the fact that disabled employees are expensive to accommodate. Some of what feeds into that is the idea that we are less productive, or that you will need to make expensive modifications. That is simply not the case in many circumstances. If assistive technology is needed, or if there are structural issues at your office that make it inaccessible, for example, it might be necessary to spend some money to accommodate the employee. However, if there is an undue burden, it is not required. Additionally, you do not need to provide your employee with personal equipment like hearing aids or a wheelchair. Finally, disabled employees are productive. If they receive accommodations so they can do their jobs, they will get the job done. If you are concerned about their ability to work 100-hour weeks and their ability to turn a profit, then 1) you should be aware that not every disabled person is incapable of that, and 2) you should understand that is not healthy for anyone, disabled or not.
7. An accessible workplace for disabled employees is a healthier and more accessible workplace for all.
Continuing on the point that working 100-hour weeks is not healthy for anyone, disabled or not, employers should understand that 1) disability can occur at any time, 2) personal lives happen, and work-life balance is important regardless of disability, and 3) allowing for work-life balance also makes the workplace more equitable for women, those who birth children, and primary caretakers. Even if your employee is not currently disabled, your employee may become disabled, or working those hours may make the employee aware of a disability that had previously not required any accommodation. Working 100-hour work weeks under high stress could certainly lead to increased anxiety, for example.
When your workplace is physically accessible for disabled individuals, it also may be more accessible for pregnant people. Additionally, creating a welcoming environment will also help reduce discrimination against other marginalized groups. Allowing telework and flexible schedules for all benefits those who need to take care of family members, and again, disproportionately benefits women and those who give birth. It may also encourage men to care for their children to increase equity in the partnership track and other promotional opportunities. These are just a few of the ways that creating an accessible environment may benefit everyone.
While we discuss compliance with the law, note the law is the floor–not the ceiling. Prioritizing accessibility and inclusion to the fullest extent and in all respects is critical.
8. Provide feedback in an accessible manner.
Accommodations are not just about wider bathroom doors and flexible schedules. Sometimes it’s as simple as adjusting the manner in which we receive feedback and guidance so that we can do our jobs. Providing vague feedback, or providing little guidance while having high expectations, might be problematic for those who need more specific feedback. For example, those with anxiety or who might be neurodivergent might require those kinds of modifications. Others might require feedback to be provided in a one-on-one setting instead of a group setting, or vice versa. Working with employees to gauge what they need is critical.
9. Coordinate with disabled law student groups and disability offices at law schools.
The best way to recruit disabled law students and graduates is to connect with them early and demonstrate your commitment to considering their perspectives. Work with these organizations. Connect with students. Discuss their ideas and concerns. Implement them. Assist with the pipeline of disabled lawyers struggling to enter the workforce.
10. Understand that being disabled is an asset, not a hindrance.
Being disabled gives us a unique perspective. I am more adaptable and creative. I’ve had no choice but to me. I am more resilient. I know how to do more with less. I relate to my clients in a way that many of my colleagues cannot. It means that I know to ask about, consider, and research topics that my colleagues do not, not because they are incompetent lawyers, but because they simply do not have the lived experience. I can’t write for everyone here, but I do know that I am an asset because I am disabled. It is not the only part of who I am. But it is important, and it makes me good at what I do.
11. Educate yourself about the law and what disabled employees actually may require.
You must understand the Americans with Disabilities Act, the Rehabilitation Act of 1973, and how or if it applies to your office or the applicant. In general, Title I of the Americans with Disabilities Act (ADA) applies to private, state, and local government employers; state and local employment agencies; labor organizations; and joint labor management committees with 15 or more employees. The Rehabilitation Act, and how various sections may apply, depend upon your office. Section 501 of the Rehabilitation Act of 1973 protects federal employees. Section 504 of the Rehabilitation Act of 1973 applies to any program or activity that receives federal funds.
For more information about reasonable accommodations in the application process, requesting reasonable accommodations, types of reasonable accommodations, undue hardship issues, and more, check out EEOC guidance at https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada#reasonable. For resources about how that applies to the legal field more specifically, visit https://www.eeoc.gov/laws/guidance/reasonable-accommodations-attorneys-disabilities. For helpful resources about what is required and types of accommodations available, visit https://askjan.org.
State laws may be more protective. Check your local and state laws to ensure that you are compliant.
There are many myths and misconceptions about what the law does and does not require of employers. Many employers, in attempting to “comply” with the law as a threshold and do no more, simply fail to do so. There are also, again, many myths and misconceptions about disabled employees, what we require, and the type of burden we place on employers (we are not a burden, by the way). I urge you to educate yourself about the law and about the needs of disabled employees.
12. Adopt clear non-discrimination policies, grievance procedures for harassment and discrimination, and policies for requesting reasonable accommodations in the workplaces.
Following the #MeToo era, one would think that many workplaces would have adopted clear non-discrimination and grievance procedures as a precaution. Some, of course, did. However, many still have not. These policies are important not simply for instances of sexual harassment, but also for instances of disability and other forms of discrimination. Having clear, established, formalized, and written procedures in place for requesting reasonable accommodations and filing grievances can make employees more comfortable coming forward, or simply provide them with enough guidance to know where to go in the first place.
13. Even if the ADA or Rehabilitation Act does not apply to the office or position, you should still provide reasonable accommodations for disabled employees and adopt a non-discrimination policy.
Many employers rely on the letter of the law as a threshold for “compliance.” They treat the law as the ceiling, rather than the floor. Smaller offices with few employees, for example, may excepted from certain laws. As may many unpaid internship positions. However, that does not mean that you should discriminate against disabled candidates, nor should you refuse to implement reasonable accommodations for disabled workers. Implement and formalize office non-discrimination and reasonable accommodations policies that make it clear you will go beyond what the law requires. Do not use “compliance” as the standard. That is not how you will change your office culture, and that is not how you will attract the most qualified candidates, many of whom are disabled.
14. Provide good benefits to your employees.
This point may be an obvious one. Providing good benefits is a great way to attract the best employees, disabled or not. However, stable health care and a leave policy that allows me to take off for a doctor’s appointment once in a while without worrying about paying my rent is a huge plus. None of these needs make me incompetent, bad at my job, or mean that I do not make up the work. Having stable health care means I am much less anxious and able to focus on my work. I can go to necessary check-ups before issues become worse and require more serious action. I don’t have to worry about hundreds and thousands of dollars in surprise medical bills that may come in the mail.
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As always, this list is not an exhaustive one. Ensuring that your workplace is accessible and inclusive is not going to involve a simple checklist. It will involve ongoing reflection and interaction with disabled folks. The key is to make sure that you are including disabled perspectives in the decision-making. Educating yourself and disabusing yourself of false notions about disabled attorneys and workers is the first step.