Employment Discrimination Against the Disabled in the Legal Profession
"The social consequences that have attached to being disabled often bear no relation to the physical or mental limitations imposed by the disability."1
In response to such discrimination, congress unanimously responded with the Americans with Disabilities Act. America heralded the ADA as a major piece of civil rights legislation designed to end discrimination against people with disabilities at all levels of society.
[The ADA] is powerful in its simplicity. It will ensure that people with disabilities are given the basic guarantees for which they have worked so long and so hard: independence, freedom of choice, control of their lives, the opportunity to blend fully and equally into the rich mosaic of the American mainstream.2
In 1986, the Harris Survey of Disabled Americans concluded, "Not working is perhaps the truest definition of what it means to be disabled in this country."3
Four years after the passage of the ADA, it means the same thing. The so called "black hole effect" persists. Eighty-six percent of those not employed or employed in non-integrated settings remain in those settings; and, only 48% of those in integrated settings in 1990 remain integrated by 1994.4 Only five percent of the disabled are receiving the vocational rehabilitation services for which they qualify. Only one-third of those receiving services and graduation from training programs are working regularly. Those who work receive low wages.5 In other words, the ADA has failed to end the discrimination the disabled face attempting to secure employment.6
The Need for Lawyers With Disabilities
Lawyers,7 both in public and private practice, fall under the act if their organizations employ more than 15 individuals. Courts are also subject to this provision and the even stricter requirements of Title II as public accommodations, under the act.8 Nevertheless, the courts and the legal profession have been slow to bring their actions into compliance with the act:
Even though the Americans with Disabilities Act is in effect, disabled persons face an uphill fight to overcome the barriers they encounter in the justice system, says Marca Bristo, president of Access Living, a service and advocacy organization run by disabled persons in Chicago. 'The justice system for most of its history has had a discriminatory impact on folks with disabilities,' she claims....Bristo is concerned , for instance, the ADA fails to deal with what she terms resource equity. 'I look, for example, at legal services that are provided by the various legal assistance organizations. There has been a history of those publicly funded entities not dealing with disability issues well or perceiving themselves as not being prepared to serve disabled individuals. 'Many of us are unemployed, on fixed incomes, people living at or below the poverty line,' Bristo points out. 'The issue of gaining access to services transcends just disability, it goes to the issue of poverty and lack of economic access to the system....If poor people have a hard time gaining services, disabled poor people have even a harder time.'9
The solution for other groups attempting to achieve equality under civil rights legislation has been to use lawyers of their protected class to assist in the development and implementation of the enabling acts. "When one member of a discriminated class reaches the top, they reach down and pull up more disabled individuals. This reaction creates a self-sustained employment venue for those with disabilities, thus the need for government interventions obviated."10
The admission of women and people of color to the bar was a prerequisite for those groups affected by civil rights legislation to participate fully in the tool of that legislation.11 It is only logical that we need disabled attorneys to help the ADA in achieving the full promise of the legislation. The problems courts are having with the ADA and its implementation are numerous. What standard of scrutiny should apply?12 Should class actions be viable under the ADA?13 Is the ADA based on a "functional" or a "minority" theory of disability?14 The terms of the act are vague, and therefore, dependent on court decisions to clarify and determine the scope of the legislation. Who is better prepared to educate the courts on disabilities than disabled lawyers? Unfortunately, as the protected groups who preceded them, disabled lawyers must first overcome employment and other discrimination before they can help mold the future for others with disabilities.
A story that begins before the ADA provides a powerful illustration:
David Tunick worked for five years at a Chicago law firm after graduating from DePaul University's law school. He lost his job in 1981 when the firm phased out its small, general practice section. A two-year attempt at a solo practice failed. Since then he's sent out hundreds of resumes. He's contacted dozens of local, state, and federal agencies. He's gone to employment agencies and persistently checks for jobs at DePaul's placement office. State legislators, Illinois congressmen and senators have also received inquiries from Tunick. The Chicago Sun-Times described Tunick's efforts in a 1985 article. Yet, for the past six years he has remained unemployed. Tunick, 38, believes no one will hire him because he's legally blind. 'It's a numbers game,' he says. With so many qualified lawyers seeking jobs, he can't find an employer willing to take a chance on him.15
This paper will focus on employment discrimination facing individuals with disabilities in the legal profession. No figures exist as to the exact numbers of lawyers with disabilities, nor the instances of discrimination in employment against them. However, the statistics available will be used.16 Consequently, this paper will largely examine indirect evidence of discrimination. Analysis is divided into three areas: barriers to admission to the profession, barriers to beginning to practice, and continuing barriers.
Barriers to admission to the profession
In seeking to enter the legal profession, a candidate must begin with law school. Historically, disabled individuals were rarely admitted to law school:
Until the Rehabilitation Act of 1973, 29 U.S.C.A. § 701, outlawed discrimination against the handicapped,17 few individuals with severe disabilities attempted to obtain law school education. No admissions committee would give them encouragement, and there was scarcely need for any form of discrimination to keep them out. In the decade of the '70's, the bars to law school admission were knocked down.18
Following the passage of the ADA, the numbers of disabled individuals seeking admission to the profession have dramatically increased.
The Law School Admissions Council reported a 100 percent increase in requests for accommodations on the LSAT between 1990 and 1993. By 1993-94, 10 percent of test-takers asked for accommodations, not including those requesting a wheelchair-accessible room. Almost two-thirds of those applicants claimed to have a learning disability, a proportion that has been steadily rising.19
Although a few cases20 have illustrated that problems with law schools remain, the current trend in the literature appears to suggest willing compliance.21 Articles to improve law school compliance with the ADA,22 and even help identify and encourage students with disabilities.23 Until 1994, Bar/Bri refused to provide accommodations to disabled students taking the bar examination review course, but because of a Justice Department settlement accommodations are no longer an issue.24 While a few problems are currently being reported about gaining admission and accommodation to either the law school or the LSAT,25 the bar exam program is another matter.
Traditionally, special help for some disabled individuals, such as accommodations for the blind in the form of extra time and tests in Braille, have been routinely provided according to Stephen Fedo, a Chicago lawyer, and consultant to the National Conference of Bar Examiners. "The controversy [now] is how much extra time."26
The New York Board of Law Examiners has been taken to court six times27 and more accommodations-denial cases are coming. Litigation is increasing because the state board has gotten tougher and they are scrutinizing the requests more carefully.28 Of the annual 7,000 exam takers, it denied five of 35 learning disability-accommodation requests in 1992 but in 1995 it denied 37 of 65.29
Advocates for people with learning disabilities cite studies that show extra time doesn't benefit people without learning disabilities, that accommodation only helps level the playing field for those who have them. But in a ruling against a bar applicant who claimed he had a learning disability but was denied extra time, a U.S. District Court judge said it was "at least arguable that reading is a skill necessary to be a lawyer, and that it is reasonable to expect a bar applicant, whether learning disabled or not, have a reading capacity of the ordinary person."30
The problem with this ruling is that the judge is assuming speed equals capacity. This is not so with learning disabilities. This exact kind of stereotyping was the whole point of the ADA. Empirical studies31 show that the only problem for dyslexics is the initial decoding; all the higher functions of language and reasoning remain intact.32 Anecdotal evidence suggests superior conceptual abilities normally accompany dyslexia. 33
Lawyers with dyslexia say concerns about their competence stem from a narrow, oversimplified vision of the legal field. "If you are looking for somebody to ready quickly and volumes, I am not the person....If you are looking for somebody to do a meticulous, good job, I am the man for you....[Reading] is not all I am doing. I am reasoning out and constructing arguments and explanations, and I do that as fast as everyone else."34
Besides problems obtaining accommodations for the Bar exam, another problem is fitness questions raised by Bar examiners. "The ABA's House of Delegates recommended in August 1994 that bar examiners narrowly tailor questions on mental health to 'elicit information about current fitness to practice law.'"35
States, who fail to heed such recommendations, such as Virginia, which recently lost a challenge to two of its questions in Clark v. Virginia Board of Bar Examiners, No. 94-211-A. Clark refused to answer if she had received any mental, emotional or nervous disorder counseling in the last five years and to provide treatment details. "Question 20(b)'s broadly worded mental health question discriminates against disabled applicants by imposing additional eligibility critera," U.S. District Court for the Eastern District of Virginia ruled. "While certain severe mental disorders may pose a threat to public safety...the Virginia Board of Bar Examiners made no finding that obtaining evidence of mental health counseling helps protect the public."36
The rule seems to be that bar examiners can only ask questions that are about behavior, not about diagnosis or treatment. Despite this clarity, bar examiners continue to ask questions they must know will not withstand judicial scrutiny. The bar is the keeper of the ethics of the legal profession. How much respect can there be for such an organization when it continues to violate the laws it asks its members to swear to uphold?
Barriers to Beginning Practice
Like all graduates, after the disabled candidate passes the bar and becomes an attorney the next goal becomes finding a job in the legal profession. The attitudes of legal employers present the major obstacle. "While...employment of the handicapped lawyer is by no means ruled out, it has become increasingly evident that jobs with law firms in the private sector will be attained only with great difficulty--and for few students at best."37 While empirical evidence of legal employers' negative attitudes toward disabled applicants may be impossible to supply, sufficient indirect evidence abounds.
The reasons behind the reluctance to hire the severely handicapped are readily apparent. The turndowns result primarily from fear. Some law firms are convinced that the handicapped will prove incompatible with other lawyers who have entered their employ. The partners may believe that to hire them will constitute a retreat from their established policy of hiring only the best qualified graduates they can find. They may be apprehensive that clients will react unfavorably to the appearance of a handicapped associate in the office in which they are accustomed to meeting young lawyers who are sharp, physically fit, and constantly on their toes.
Yet these assumptions are mostly without foundation. The confident manner in which handicapped students have competed with all others during their law school years should dispel the belief that physical handicaps equate with inferior abilities. The effect of the physical handicap also tends to be grossly exaggerated. It will be found that the student who is confined to a wheelchair may require no outside help from arrival in the morning until departure at night. In addition, his or her academic record may be as high as that of anyone else. 38
Another common fear of hiring the disabled is the cost of accommodations, which in most of cases is not supported by empirical data. According to the Job Accommodation Network "[t]he cost of changes made was zero for 19 percent of the network's survey respondents" 50 percent reported that such adjustments cost between $1 and $500."39 Examples of accommodations are: tables instead of desks for wheelchair users; TDDs (Text telephones) for deaf or mute attorneys; or telephone earpiece amplifiers for hard of hearing attorneys.
The inevitable impact of these attitudes and misconceptions is employment discrimination against attorneys with disabilities. As Theodore Vorrees noted in 1982:
While firms vigorously deny engaging in discrimination against the handicapped, the profession would be hard put to explain why so very few of these individuals have gained jobs in the private sector. It would be difficult to seek justification on the ground that the handicapped are not 'otherwise qualified.' The law schools that granted them diplomas would bear witness to the falsity of the claim.40
Vorrees' article announced the intense effort of the District of Columbia Bar Association launched to secure interviews and employment for disabled attorneys in 1982. The program was to be a model for other programs nationwide. While no independent assessment of success of the DC bar effort is available,41 the story David Tunick, the blind unemployed lawyer in Chicago, was published in 1984.
Unfortunately, Mr. Tunick is not an isolated example. Although generalized figures for all disabled lawyers are unavailable,42 the figures from groups representing specific disabilities are disturbing. One of the few available figures comes from estimates of the National Association of Blind Lawyers that "at least one-third of the 500 to 600 blind lawyers in this country are unemployed."43 The 24 Deaf44 and 30 hard of hearing lawyers, who have contacted the Legal Network for Deaf and Hard-of-Hearing "are mostly underemployed if we choose to work in ADA or civil rights, since the pay is very low."45 In addition, most of the nation's deaf attorneys identified "are working for government, nonprofit organizations, or other charitable organizations."46 Hard of hearing attorneys "in private practice earned $25,000 to $40,000, if they are lucky."47
Perhaps because of the D.C. bar effort, the plight of disabled lawyers continues to attract ABA attention.
Despite federal and state anti-discrimination laws regarding the handicapped, there is a 'widespread problem' of disabled lawyers not finding jobs, according to Deborah Van der Weijde, a Justice Department lawyer who is chair of the Disabled Lawyers Committee of the ABA's Young Lawyers Division. "Potential employers are afraid of people who are different...afraid it would cost too much to employ them, afraid they will turn off clients," said Van der Weijde. Van der Weijde, who is hard of hearing, says that a high proportion of disabled lawyers find work with various government agencies.48
In spite of strong ABA support for people with disabilities, the bar has been less demanding of legal employers of the disabled than of other grouops. For example, the ABA Legal Education and Admissions Recommendations for law school's Standard 210 equal Opportunity provides many protections for faculty, staff, and students49 along with strong requirements for career offices to prevent discrimination based on "race, color, religion, national origin, sex, or sexual orientation." Such protection includes not only the posting of positions but the use of the schools' facilities for interviews or any other placement assistance, and applies to pay disparities as well as hiring discrimination. However, the committee relegated the protection for the disabled to Standard 211 that only requires law schools to comply with existing laws regarding the disabled.50
In researching this paper, a careful reading of all the job postings received and retained by the University of Louisville School of Law Career Placement Office was conducted. Although no postings violated Standard 210 protections for minorities, approximately 20 postings included the discriminatory requirements of hearing or speech. While the employers had a legitimate interest in the communication abilities of the applicants, requiring that such communication occur using particular senses was discriminatory. One even required vision. Perhaps the employers were ignorant of both the laws. Or perhaps they were unaware of the extent to which reasonable accomodations including TDD's, amplified phones and reading machines would have allowed disabled candidates to perform the necessary job functions of research and phone consultation.
The most dramatic information that emerged was the composition of the offending employers. Only two private employers, both of which are large international insurance companies, were included in the group. Two of the requests were for clerks for two judges of the United States Courts of Appeals. One was from the legal career services office of a state university law school. Another was from a private law school seeking an assistant dean for their career services department. Two were from nonprofit public interest firms purportedly involved in all areas of legal advocacy. One was from a state bar association. Six were from county or city governments. Four were from federal programs. The most upsetting of the federal government postings was from the Department of Justice who required reference writers to rate applicants' oral communication skills. Since the DOJ is charged with the enforcement of the ADA and section 504 of the Rehabilitation Code, it is particularly troubling to find they do not comply with the act they enforce.
Discrimination claims against legal employers are difficult to maintain for a variety of reasons. First problem is the systemic problems inherent in bringing a failure to hire claim. Letters of reference or TDD numbers in resumes may tip off prospective employers that the candidate is disabled. When the legal employer can detect disability in the resume, discrimination is easy. Legal employers receive huge packets of resumes from law schools, to screen out a disabled applicant a law firm simply fails to respond to the resume. The candidate has no inside contacts or other access to the information used in screening out the resume. The victim of discrimination may not know whom they interviewed or hired, and whether those individuals were more or less qualified than the victim. Leonard Hall, a deaf attorney and president of the Legal Network for the Deaf and Hard of Hearing, recalls that upon his graduation from law school that private law firms would not even speak with him.51
Even if a candidate can determine they were a victim of discrimination, the EEOC backlog presents another problem. "ADA claims account for roughly 20 percent of all discrimination charges filed with the agency...[and] the average investigator's caseload increased from 54 files in 1990 to 140 in 1995."52
EEOC has received approximately 13,000 complaints under the employment provision of the act of the ADA, through the end of July 1993.53 Half of these claims are for wrongful discharge. Experts said they would have thought that the number of failure-to-hire cases, which constitute only 13 percent of the claims, would be higher, considering estimates that up to three-quarters of the the disabled population is unemployed. 'It may be that the disability rights groups have been overwhelmed with termination cases and haven't had time to deal with the failure-to-hire cases yet,' said Washington, D.C., lawyer Robert Fitzpatrick.54
Another reason may be that upon being informed of the backlog, many claimants may give up. In such cases, the discriminating employer remains free to continue the illegal practices. In addition, several cases suggest that the EEOC may be giving prospective victims of discrimination and retaliation inaccurate information that can lead to a loss of a claim.55
Things are no better if victims of discrimination pursue representation through public interest firms:
"There is, in my view, an epidemic of nonenforcement of the ADA," maintains Sidney Wolinsky, litigation director for Disability Rights Advocates, a nonprofit group in Oakland, Calif. Noting that the government lacks adequate resources to prosecute claims, he points out that the group gets roughly 100 requests for help each month, only one or two of which can be accepted. "We are now at our maximum capacity," he says.56
Assuming an applicant overcomes these hurdles, they are still subject to the vagueness that pervades the act. Court and Administrative Agency constructive interpretation of the act has been mixed. Cases such as EEOC Decision No.85-4, 1985 EEOC Lexis 3, holding that partners are not employees, limiting the scope of earlier Equal Employment Opportunity legislation, also apply to the ADA. This allows many smaller firms to escape scrutiny because the ADA requires 15 employees before the enforcement provision kicks in. However, later cases such as Janopoulous v. Harvey L. Walner & Associates, Ltd., et al., 2 AD Cases (BNA) 1494, have held that sometimes firms are simply alter egos of the senior partner, and therefore liable. Clearly, every partner starts as an employee associate. Equally clear was the legislative intent to cover the practice of refusing to promote disabled individuals to partnership status because of their disability.57 The ruling ignores the reality that employers are actually interviewing a prospective partner, whom they will first try out as an associate. Failing to count partners as employees is particularly devastating when applied to law firms because they are partnership driven. The rule forces disabled applicants to choose between their rights under the ADA in large firms, which can hide discrimination in the sheer volumes of applications they ignore, or a job without legal protection under the ADA, because the firms may be too small to absorb the cost of accommodations.
However, since the ADA does not require discriminatory intent, even "protective" firings violate the act. In Abbasi v. Herzfeld & Rubin, P.C., 4 AD Cases (BNA) 797 (1995), A paralegal who suffered a minor stroke was fired because the firm feared the stress from his job would cause another stroke. The court upheld the plantiffs right of action.
In addition, making such an allegation can often seriously affect future employability by other firms. Law firms have a well-deserved reputation for retaliating against employees who assert their rights.58 In Angotti v. Kenyon & Kenyon, 929 F. Supp. 651 (S.D.N.Y. 1996), the plaintiff alleged that the law firm retailiated against her for filing discrimination complaints by releasing confidential medical information to a fellow employee who then used the information to harass and humiliate her.59 Having gained first hand experience with the difficulty of getting a job, applicants may be leery of filing suit. They may fear that it will give them a poor reputation in the legal community and render the job search even harder.
However, a recent ruling suggests that the harm to plaintiff lawyers may be lessened in some cases. In Anonymous v. Legal Services Corp. of Puerto Rico, et al., 1996 NDLR (LRP) Lexis 611 2, the U.S. District Court of Puerto Rico held that the lawyer plaintiff could proceed under a pseudonym. His privacy interest as an attorney was sufficient because his ADA related disability was a treatable mental illness. Such decisions allow lawyer plaintiffs to invoke the protection of the ADA without having to effectively give up their privacy rights and marketability.
Some evidence suggests that the consequences of losing a discrimination case are escalating which may make more firms responsive to making nondiscriminatory employment decisions. Steven I. Adler and Randi G. Weller in Law Firms Must Ensure Attorneys Are on Their Best Behavior, NJ L.J. August 5, 1996, 33, argues that the Rules of Professional Conduct are now being applied:
It is now well established that an attorney who engages in discrimination while in the course of his/her professional activities can be held liable under state and federal anti-discrimination laws. Another very real consequence is the case law suggests that courts and district ethics committees are strictly applying the law and finding attorneys more accountable for their actions. The harshest of all sanctions, disbarment, has even become a real possibility if the discriminatory conduct is egregious.
Clearly, disabled attorneys face substantial inequality of opportunity compared with their classmates, when applying for entry level employment. The bar exam, the double-standard of protection provided by the ABA Standards, discriminatory employment postings, discriminatory hiring practices and difficulties in pursuing legal remedies for violations of the ADA, clearly combine to limit the ability of the disabled to enter the legal profession.