by Matthew W. Dietz
Four years ago, The Florida Bar embarked on a mission to increase diversity in the legal profession so the Bar reflects the racial, ethnic, and gender makeup of society.1 At that time, we discovered that over 20 percent of the population of the state of Florida are people with disabilities; however, this segment of the population was vastly underrepresented to the extent that no statistics were kept by any entity in Florida as to the numbers of attorneys with disabilities, law schools that recruit students with disabilities, or law firms that hire or promote persons with disabilities. Since the diversity initiative has been in place, the Bar, the Equal Opportunities Section, and the Disability Independence Group (DIG) have taken steps to educate Florida lawyers about the needs of their colleagues with disabilities and to ensure that attorneys with disabilities are included in the definitions of “minority” and “diversity.”2
On May 23, 2006, the U.S. Equal Employment Opportunity Commission (EEOC) published a fact sheet to provide guidance for attorneys with disabilities and their employers on the application of the reasonable accommodation obligation under the Americans with Disabilities Act of 1990.3 According to the EEOC, one goal of this fact sheet is to dispel the myth that attorneys with disabilities who need reasonable accommodation are less competent or less productive than attorneys without disabilities. Reasonable accommodation refers to any change in the work environment or in the way things are customarily done that enables an applicant or employee with a disability to enjoy equal employment opportunities.4 “Many legal employers recognize the importance of flexibility to remain competitive in hiring the best attorneys. Providing reasonable accommodation is an extension of this successful strategy,” said EEOC Chair Cari M. Dominquez. “With employers competing fiercely for talent, those who win use recruitment strategies that reach out to attorneys with disabilities.”5
The purpose of this article is to provide a basic overview of the benefits of hiring a lawyer with a disability as well as to summarize the new EEOC fact sheet and the Americans with Disabilities Act as it pertains to attorneys and those public and private facilities used by attorneys in their practices.
Why Consider a Lawyer
with a Disability?
It should be as easy as saying it’s the law and that one should consider hiring a lawyer with a disability as they would consider any other lawyer. Unfortunately, there are many stereotypes involving persons with disabilities: concerns as to whether an attorney with a disability can handle a busy caseload, the reactions of clients, or the cost of accommodations. This reasoning harks back to a time when law firms were considering the impact of hiring their first female or African-American attorneys. These myths are equally inapplicable to the disabled. In fact, out of most jobs or professions, the legal profession is best suited for persons with a wide range of disabilities, as most legal jobs do not require strenuous physical activity; fixed hours are not required; and technological advances have made information management and productivity accessible to all. The costs of most accommodations, if they cost anything at all, are less than $600.6
There are many bonuses for hiring or retaining an attorney with a disability. Primarily, the 20 percent of our population who have disabilities are consumers of services, jurors of our cases, or family members of our consumers or jurors. A lawyer with a disability has the life experience to empathize with clients and the public with regard to the difficulties they face.7
Further, overcoming barriers and adversity in their own lives inures to the benefit of their clients. More likely than not, a person with a disability faced a multitude of challenges in obtaining his or her law license. In order to achieve this level of success, the student must be an effective self advocate through high school, college, and law school; obtain testing and classroom accommodations; as well as battle with vocational rehabilitation to obtain funding for education. In order to maximize his or her academic potential, the student must have necessarily acquired intense and direct knowledge of disability-related needs and technology available to accommodate these needs. In addition to the natural barriers faced by the student with a disability, he or she must also complete all educational requirements in the face of others’ doubts regarding the student’s abilities.8
As to attorneys that develop a disability while in their practice, failing to provide an accommodation would be a waste of years of experience and knowledge for a small investment in an accommodation. Persons with disabilities statistically are more loyal to their employers because their employers have given them the chance to succeed.
Is Your Firm a Covered Employer Under the ADA?
The Americans with Disabilities Act and the similar Florida Civil Rights Act cover employers with 15 or more employees.9 However, many local ordinances identical to the ADA provide coverage to employees of companies which have five or more employees.10
When Is an Employee
Covered by the ADA?
In order for a person to be protected by the ADA, that employee must be a “qualified person with a disability.”11 An individual with a disability under the ADA is a person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.12 Major life activities are those an average person can perform with little or no difficulty, such as walking, breathing, seeing, hearing, speaking, learning, and working.13 An employee is “qualified” when he or she satisfies skill, experience, education, and other job-related requirements of the position held or desired, and who, with or without reasonable accommodation, can perform the essential functions of that position.14
How Should You Interview a Potential Employee with
As with any able-bodied employee, the interview should be a process where the employer can determine who, based on his or her skills and experiences, would be the best fit for a job. If an applicant is deaf, the applicant may need a sign language interpreter.15 If an applicant is visually impaired, the applicant may need materials in an alternate format.16 During an interview, employers may not ask about the existence or nature of a disability.17 However, if an employer knows that an applicant has a disability, through observation or disclosure by the applicant, and the employer believes that an accommodation may be needed, the employer may ask if the applicant will need an accommodation to do the job, and, if yes, what accommodation may be needed.18
How Does an Attorney Request a Reasonable Accommodation?
It is usually the employee’s responsibility to request a reasonable accommodation. There are no magic words that need to be spoken. Basically, an employee must ask an employer for a change in a condition related to his or her employment due to a medical condition.19 Accommodation may be necessary to apply for a job, to perform job functions, or to enjoy the benefits and privileges of employment that are enjoyed by people without disabilities. Reasonable accommodations may include,20 but are not limited to, making existing facilities used by employees readily accessible to and usable by persons with disabilities;21 job restructuring;22 modification of work schedules; modifying workplace policies; providing additional unpaid leave; reassignment to a vacant position; acquiring or modifying equipment or devices;23 telecommuting; and providing qualified readers or sign language interpreters.
Each person’s abilities are different, and the accommodation may be specific to a person. An employer may not reflexively say no, but the employer may inquire into the disability and the accommodation requested by the employee. If necessary, and the disability-related needs are not obvious, an employer may seek documentation from an appropriate health care or vocational rehabilitation professional about that attorney’s disability and functional limitations.24 Also, an employer is entitled to know the nature of the problem, how it is connected to the disability, and how a suggested accommodation would resolve the problem before the employer can assess whether an accommodation is appropriate.25 There should be an open discussion between the employer and the attorney to find an accommodation that would make the attorney more productive. This is called the “interactive process.”26
During this interactive process, the employer and the attorney may discuss several types of accommodations that are effective to satisfy the attorney’s needs. The employer has the option of choosing a less expensive or less burdensome alternative if the alternative effectively eliminates the workplace barrier.27 If the alternative suggested by the employer is ineffective, the attorney should explain why the alternative is less effective rather than merely objecting to the proposed accommodation.28
When Is an Accommodation Unreasonable?
An accommodation is not reasonable when it alters the essential requirements of a job or it makes the employer suffer an undue burden. An attorney with a disability must be able to perform the essential requirements of the job, with or without reasonable accommodation. Examples of such essential functions for some attorneys are as follows: conducting legal research, writing motions and briefs, counseling clients, teaching a law course, drafting regulations and opinion letters, arguing before a court, drafting testimony before a legislative body, and conducting depositions and trial.29 Also, it is not reasonable to request an alteration of billable hour requirements or any other production requirements that are uniformly applied, but an employer may be required to provide a reasonable accommodation, such as a reader or typist, so that an attorney with a disability can meet a billable hour requirement.30 Also, an employer generally is not obligated to provide personal use items such as eyeglasses or hearing aids.31
If an attorney realizes that a production problem is related to a disability, that attorney should bring the problem to the attention of his or her employer immediately and explore an accommodation to meet the employer’s expectations. An employer is not required to excuse poor performance when an accommodation was never requested and can even terminate an attorney for poor performance if he or she requested an accommodation after the employer decided to terminate the attorney.
An accommodation is not reasonable when it causes an undue hardship, i.e., significant difficulty or expense, to the employer.32 In order to determine an undue hardship, the employer must consider the cost and nature of the accommodation and its effect on the overall financial resources and operation of the entire firm. In viewing the costs to be incurred, an employer should consider whether some or all of the costs can be offset. Florida Vocational Rehabilitation, as well as some disability organizations, may provide such accommodations at little or no cost. Further, for a small firm, disabled access tax credits are available for one half of the first $10,000 spent per year on accommodations.33
Does the Firm Camping Retreat or Holiday Party Need to be Accessible?
Many important parts of an attorney’s professional career occur outside of the office. It is the employer’s responsibility to ensure that all of the benefits and privileges of employment are made accessible to its employees with a disability.34 Usually, this requires sensitivity to the requirements of your employees when planning trainings or scheduling events. For example, when buying tickets at a sports facility, the employer should purchase those next to the accessible seating section. Also, when choosing restaurants, an employer should pick an establishment with an accessible restroom.
What are the Responsibilities of the Courts and the Providers of Services Ancillary to the Legal Profession?
The obligation to provide workplace accommodations for an attorney with a disability in areas outside of the workplace, but within the scope of employment, are joint between the employer and the public or private facility.
State and local facilities have the obligation to make all of their programs and services equally available for persons with disabilities.35 Upon request, all materials should be provided to persons with visual impairments in alternate formats, and sign language interpreters should be made available for the deaf. Further, all courts should have accessible courtrooms and other facilities, as well as an ADA coordinator to ensure that proper accommodations are given. The Florida Courts Web site has an inclusive list of available accommodations, and the Florida Supreme Court has been dedicated to fulfilling the requirements of the Americans with Disabilities Act since 1998. Through Florida Supreme Court Chief Justice R. Fred Lewis’ lead, the Supreme Court Standing Committee on Fairness and Diversity will state proposals to ensure accessibility to our courts. Although the ADA is now 15 years old, many state and federal courthouses are not fully accessible, and timely accommodations may be difficult to obtain.
All private accommodation suppliers, such as law offices and providers of services ancillary to the legal profession, also have an obligation to ensure their facilities are constructed accessibly or that readily achievable architectural barriers are removed for mobility impaired attorneys or clients. They also have an obligation to ensure services are provided in a manner that is usable for a visually impaired or deaf attorney or client.36 This includes, but is not limited to, law offices, mediation offices, court reporters’ offices, and doctors’ offices for independent medical examinations. For a mobility impaired attorney, a deposition should be scheduled at an accessible location, and for a visually impaired attorney, materials should be provided in electronic format that can be accessed with a screen reader. As an accommodation for a deaf attorney or deponent, a court reporter would be required to provide real-time transcription service. It is unlawful to impose a surcharge for an accommodation like real-time reporting; the public accommodation (court reporter’s office) could increase the price to all of its clients.
Are there Penalties for Violation of the Act?
The Americans with Disabilities Act of 1990 was intended as a mandate for the elimination of barriers for persons with disabilities throughout society.37 The penalties for violating the employment provisions of the act, or the similar Florida Civil Rights Act, are the same as the penalties for racial, gender, or national origin discrimination.38 After exhausting administrative preconditions, the successful plaintiff is entitled to reinstatement, back-pay, front-pay, compensatory damages, punitive damages, and attorneys’ fees and costs.39
The goal in maintaining a diverse workforce is to be able to gain from the many different perspectives that life imparts on each person. Until recently, persons with disabilities were excluded from this goal. However, every year, many thousands of persons with disabilities are graduating from college and professional schools with accommodations, and many more are deciding to continue to work in the legal profession or other professions while living with a disability. Any firm that does not attempt to embrace the power and financial impact of the population of persons with disabilities will be at a competitive disadvantage.40
Like members of other minority groups, persons with disabilities have a unique perspective and many have triumphed over adversity and societal stereotypes. Unlike other minorities, anyone can join the disability community at some time, whether through illness or injury or from birth. When viewing an attorney with a disability, a law firm or governmental employer should focus on the abilities of the attorney and what that attorney brings to a law firm. q
1 See Diversity in the Legal Profession Symposium Final Report (Aug. 13, 2004), at www.floridabar.org/ (follow “Inside the Bar,” then “Committees,” then “Standing Committees,” then “Member Outreach Committee,” then “Diversity in the Legal Profession Final Report and Recommendations.”)
2 With support of The Florida Bar Foundation, the Disability Independence Group (DIG) created the Disability-Diversity Initiative, a statewide study project of 44 lawyers with disabilities, during 2005. The study was designed to enable attorneys with disabilities to discuss disability issues and barriers to participation in professional and Bar activities. In 2007, through a collaboration of The Florida Bar and DIG, a survey was conducted to determine the barriers to practice for all Florida attorneys with disabilities. In June 2006, the Equal Opportunities Law Section sponsored a presidential showcase seminar at the Annual Convention of The Florida Bar to highlight challenges faced by and goals for attorneys with disabilities.
3 U.S. Equal Employment Opportunity Commission Fact Sheet on Reasonable Accommodations for Attorneys with Disabilities at www.eeoc.gov/facts/accommodations-attorneys.html (hereinafter referred to as “Fact Sheet”). The Americans with Disabilities employment provisions are found at 42 U.S.C. §12111, et seq.
4 EEOC News press release, May 23, 2006.
6 See www.jan.wvu.edu/media/LowCostHighImpact.pdf; Fact Sheet at 2. The Job Accommodation Network provides information about the costs of reasonable accommodation at www.jan.wvu.edu/portals/faqs.html#fund and www.jan.wvu.edu/media/LowCostHighImpact.pdf.
7 See, generally, Jennifer Jolly-Ryan, Disabilities to Exceptional Abilities, Law Students with Disabilities, Nontraditional Learners, and the Law Teacher as a Learner, 6 Nev. L.J. 116 (2005).
9 42 U.S.C. §12111(2) and (5)(A); Fla. Stat. §760.02(7).
10 See, e.g., Miami-Dade County Code, 11A-25; Broward County Code, 16½-3; Hillsborough County Code, 16¾-2, Pinellas County Code, 70-51; Orlando City Code, 57.01.
11 42 U.S.C. §12111(8).
12 42 U.S.C. §12102(2); 29 C.F.R. 1630.2(j)(l).
13 29 C.F.R. §1630.2(i).
14 42 U.S.C. §12113(a); 29 C.F.R. 1630.2(m).
15 Fact Sheet at 3.
17 42 U.S.C. §12112(d)(2).
18 Fact Sheet at 3; 42 U.S.C §12112(d)(2)(B); see also U.S. Equal Emp. Opportunity Comm’n, Enforcement Guidance on Disability-related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act, available at www.eeoc.gov/policy/doc/guidance-inquiries.html.
19 Fact Sheet at 4.
20 42 U.S.C. §12111(9). For a detailed list of possible accommodations according to disability, see Job Accommodation Network Searchable Online Accommodation Resource (SOAR), www.jan.wvu.edu/soar.
21 Examples of such accommodations include providing a higher desk, grab bars in the toilet stall, automatic doors, installation of ramps, providing assistance shelving books, providing flashing strobe to warn a deaf person of an emergency, etc.
22 This includes removal of nonessential tasks, such as membership in partners’ committees, social activities, etc.
23 This includes video conferencing, TTY/TTD, assistive listening devices, screen reading software.
24 Fact Sheet at 7.
25 Id. at 8. All such information regarding the medical condition and disability of an attorney should remain confidential and in a separate medical file, except as is necessary to grant an accommodation or for first aid or safety personnel. 42 U.S.C. §12112(d)(3)(B).
26 Fact Sheet at 7-9.
27 Id. at 13-14.
29 Id. at 11.
30 Id. at 12.
32 42 U.S.C. §12111(10).
33 26 U.S.C. §44(c)(2).
34 29 C.F.R. §1630.9.
35 Title II of the ADA covers discrimination by public entities. 42 U.S.C. §12131, et seq.
36 Title III of the ADA covers discrimination in public accommodations and services provided by private entities. 42 U.S.C. §12181, et seq. For examples of what is included in the definition of discrimination, see 42 U.S.C. §12182.
37 42 U.S.C. §12101(a).
38 42 U.S.C. §12117.
40 “America is home to an estimated 54 million people with disabilities. Despite widespread unemployment, this population has an aggregate income exceeding $1 trillion as well as $220 billion in discretionary spending power.” Comments of Christine Griffin, EEOC commissioner, at the ABA National Conference on the Employment of Lawyers with Disabilities, May 23, 2006.
Matthew W. Dietz is a civil rights lawyer with the Law Offices of Matthew W. Dietz, P.L., in Miami. He received his B.S. from Boston University and his J.D. from Brooklyn Law School. He is currently the chair of the Civil Rights Section of the American Association for Justice and a board member of the Equal Opportunities in the Law Section of The Florida Bar. Mr. Dietz is also the founder of Disability Independence Group.
This column is submitted on behalf of the Equal Opportunities Law Section, Reginald Clyne, chair.