mcle ada materials (1) - OSB PLF...the workplace. He is a 2015 graduate of the University of...

APRIL 28, 2017 ABOVE THE ADA: DISABILITY AND EMPLOYMENT LAW THROUGH AN INCLUSIVE LENS GENERAL CREDITS CLE (we will apply for 2.5 hours of MCLE credit)

Employers must comply with the Americans with Disabilities Act

(ADA) when hiring employees, from job descriptions to inter-

viewing to accommodations. But the ADA sets a floor, not a ceil-

ing. This conversation will review core ADA requirements and

the multitudes of easy and affordable things employers can do

to make hiring both more discerning and more inclusive for peo-

ple with disabilities. The presenters will also discuss redefining

accommodations through Universal Design.

This event will feature group discussion and hands-on exercis-

es.

April 28, 2017

2:00 PM–4:30 PM followed by a reception

Stoel Rives 760 SW Ninth Ave.

Goose Hollow Conference Room

Floor 31

Matthew Denney Disability Rights Oregon

Banafsheh Violet Nazari

Nazari Law

Carol Rozumalski Seattle, WA

$25.00 OWLS Members $35.00 Non-Members

OWLS Foundation

scholarships available. [email protected]

503.841.5758

This event will be videotaped by the PLF.

Register online by April 26 www.oregonwomenlawyers.org

Call 503.841.5720 for more

information

Name: Bar Number:

Sponsor of CLE Activity:

Title of CLE Activity: Program Number:

Date: Location:

Activity has been accredited bythe Oregon State Bar for thefollowing credit:

____ General

____ Prof Resp-Ethics

____ Access to Justice

____ Child Abuse Rep.

____ Elder Abuse Rep.

____ Practical Skills

____ Pers. Mgmt/Bus. Dev.*

Full Credit.I attended the entire program andthe total of authorized credits are:

Partial Credit.I attended _________ hours of theprogram and am entitled to thefollowing credits*:

MCLE FORM 1: Recordkeeping Form (Do Not Return This Form to the Bar)

Instructions:Pursuant to MCLE Rule 7.2, every active member shall maintain records of participation in accredited CLE activities. You may wish to use this form to record your CLE activities, attaching it to a copy of the program brochure or other information regarding the CLE activity.

Do not return this form to the Oregon State Bar. This is to be retained in your own MCLE file.

*Credit Calculation:One (1) MCLE credit may be claimed for each sixty (60) minutes of actual participation. Do not include registration, introductions, business meetings and programs less than 30 minutes. MCLE credits may not be claimed for any activity that has not been accredited by the MCLE Administrator. If the program has not been accredited by the MCLE Administrator, you must submit a Group CLE Activity Accreditation application (See MCLE Form 2.)

Caveat: If the actual program length is less than the credit hours approved, Bar members are responsible for making the appropriate adjustments in their compliance reports. Adjustments must also be made for late arrival, early departure or other periods of absence or non-participation.

*Personal Management Assistance/Business Development. See MCLE Rule 5.11 and Regulation 5.300 for additional information regarding Category III activities. Maximum credit that may be claimed for Category III activities is 6.0 in a three-year reporting period and 3.0 in a short reporting period.

8/16:MCLE1

____ General







____ General







Program Description

This program considers the Americans with Disabilities Act (“ADA”) and employment through an inclusive

lens. Though lawyers routinely advise their organizational clients on various aspects of the ADA, too often

lawyers and firm managers overlook the fact that the ADA sets a floor—not a ceiling—for engaging job

candidates and employees with disabilities. The ADA establishes important requirements, but is not well‐

tuned for identifying barriers to successfully engaging people with disabilities. As a result, the legal profession

misses opportunities to encourage people with disabilities to apply for jobs, succeed in interviews, and be

productive at work. Contrary to popular belief, most of the organization’s efforts along these lines likely do

not reside in processing for reasonable accommodations requests, but rather in changing ingrained habits

that do not support a discerning employee‐selection process.

This program reviews the legal standards imposed by the ADA in hiring and accommodations requests.

Framing those standards as minimums, the panelists will then discuss how merely following the standards,

when considered from the point of view of a person with a disability, can undermine efforts to engage those

individuals in the workforce. Instead, organizations and people with disabilities will both be better served by

an inclusive framework. This includes reevaluating standard hiring procedures and inclusion efforts, as well as

viewing physical and social space from a “universal design” perspective. The panelists will present numerous

examples and facilitate hands‐on exercises and discussion.

Attorneys serving employers will look at the ADA through a new lens and be provided tools for helping their

clients do much more than avoid lawsuits. Firm managers and in‐house attorneys looking for ways to

increase diversity and inclusion in their organizations will discover an framework to supplement the ADA and

practical skills for implementing it. The content of the program naturally extends to engaging clients with

disabilities and therefore will also improve access to justice.

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Program Outline

2:00 — 2:10 Welcome and introduction of panelists

2:10 to 2:15 — Ms. Rozumalski

I. An inclusionary v. a risk‐management mindset regarding disability

2:15 to 2:35 — Ms. Nazari

II. Framing the minimum legal standard

A. Legal standard ‐ Violet

B. Fear mongering ‐ Violet

1. Introduction to undue hardship & essential functions

2:30 ‐ 3:15 — Ms. Rozumalski

III. Problems with the traditional standard

A. Standard practices from the point of view of PWD

1. Examples of things organizations do that they think are inclusionary but aren't

2. Examples of better ways to be inclusive

B. Small‐group exercise 2:55 ‐ 3:15

3:15 ‐ 3:50 — Ms. Rozumalski and Mr. Denney

IV. A different standard: Inclusion with respect to disabilities

A. Untapped skill set – Ms. Rozumalski 10 m

B. Universal design – Mr. Denney 20 m

C. Exercise 3:35 – 3:50

3:50 ‐ 4:00 Conclusion — Ms. Nazari, Ms. Rozumalski, Mr. Denney

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Speaker Biographies

Matthew Denney is a staff attorney at Disability Rights Oregon, working primarily with clients of the state

Vocational Rehabilitation program to ensure they receive the full range of services they're entitled to under

the law. He also assists in pre‐termination negotiations with employers over reasonable accommodations in

the workplace. He is a 2015 graduate of the University of California, Hastings College of the Law in San

Francisco. He once took a Disability Law course across the street from the federal building that disability

rights activists occupied for a month in 1977 to demand regulations implementing section 504 of the

Rehabilitation Act.

Banafsheh Violet Nazari is the owner of Nazari Law, an Employment Law firm exclusively representing

employees in their Wage Theft and Workplace Discrimination case against employers. She is a board member

of Oregon Women Lawyers and serves on the Intersectionality Network, Transformation, and Leadership

Committees. As one of co‐leader of Oregon Lawyers for Good Government, she works to focus and shape the

efforts of local attorneys to be responsive to the needs of our community. Her recent presentations include

Implicit Bias, Professionalism Panel: Practicing Diversity, Safe Spaces, and A Voice From the Margins.

Carol Rozumalski is a social worker, community leader, and educator in Seattle, WA. After completing a

M.Ed. in student development and an M.S.W., she worked at the Seattle Housing Authority for sixteen years

as a case manager. Currently she works a transitional housing program for women in the Seattle area. She

frequently advises and educates organizations and communities on disabilities‐related issues.

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Materials

Materials

o EEOC. The ADA: Questions and Answers, available at https://www1.eeoc.gov//eeoc/publications/adaqa1.cfm?renderforprint=1

o EEOC. Reasonable Accommodations for Lawyers with Disabilities, available at

https://www.eeoc.gov/facts/accommodations‐attorneys.html

o Job Accommodation Network. (2010). Job Accommodations for Lawyers with Disabilities

o Rozumalski, C. & Yocom, J. (2017). Hows and Whys of Inclusion when Hiring People with

Disabilities in the Legal Profession

o Selections on universal design

o Exercises

Recommended

o Pixley, Stuart. (2015). Lawyering with Challenges: Disability and Empowerment. The Professional

Lawyer, 23(1): 1‐5, available at

http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/the_

professional_lawyer_lawyering_with_challenges_disability_and_empowerment.authcheckdam.p

df

o Loy, Beth. Accommodation and Compliance Series Workplace Accommodations: Low Cost, High

Impact. Job Accommodation Network, available at

http://askjan.org/media/lowcosthighimpact.html.

o Ifeoma Ike. (2017). Exercise Your Equity Organ, available at

https://www.linkedin.com/pulse/exercise‐your‐equity‐organ‐ifeoma‐ike.

o Employer Assistance and Resource Network on Disability Inclusion,

http://www.askearn.org/topics/

ORPC 8.4(a)(7) “(a) It is professional misconduct for a lawyer to: (7) in the course of representing a client,

knowingly intimidate or harass a person because of that person’s race, color, national origin, religion, age,

sex, gender identity, gender expression, sexual orientation, marital status, or disability.”

Model Rules of Professional Conduct 8.4 (g) “(g) engage in conduct that the lawyer knows or reasonably

should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity,

disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct

related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or

withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude

legitimate advice or advocacy consistent with these Rules.”

Job Accommodations for Lawyers with Disabilities

Effective Accommodation Practices (EAP) Series

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JAN’S EAP SERIES

JOB ACCOMMODATIONS FOR LAWYERS WITH DISABILITIES

Today, around eight hundred thousand lawyers perform a variety of services, and the employment of lawyers is expected to grow 13 percent during the 2008-18 decade, about as fast as the average for all occupations (Bureau of Labor Statistics, 2011). Although lawyers typically represent clients in criminal and civil litigation and other legal proceedings, draw up legal documents, and manage or advise clients on legal transactions, they may specialize in a single area or may practice broadly in many areas of law or work service, technical, or research positions. Lawyers may be self-employed or work for firms, government, or service-based entities that are financial, insurance, or security-based. To effectively provide the variety of services performed in the legal profession, lawyers with disabilities may need accommodations related to cognitive, motor, psychiatric, sensory, and other impairments. The following is a quick overview of some of the job accommodations that might be useful. For a more in depth discussion, access JAN's publications at http://AskJAN.org/media/atoz.htm. To discuss an accommodation situation with a consultant, contact JAN directly. COGNITIVE IMPAIRMENT - Cognitive impairment, as used in this publication, refers to disturbances in brain functions, such as memory loss, problems with orientation, distractibility, perception problems, and difficulty thinking logically. Cognitive impairment is a syndrome, not a diagnosis. Many conditions can cause cognitive impairment, including multiple sclerosis, depression, alcoholism, Alzheimer disease, Parkinson disease, traumatic brain injury, chronic fatigue syndrome, and stroke. Concentration: Reduce distractions in the work area Provide space enclosures or a private office Allow for use of white noise or environmental sound machines Allow the employee to play soothing music using a cassette player and headset Increase natural lighting or provide full spectrum lighting Plan for uninterrupted work time Allow for frequent breaks Divide large assignments into smaller tasks and goals Restructure job to include only essential functions Memory Deficits: Allow the employee to tape record meetings and provide written checklists Provide type written minutes of each meeting Provide written instructions and allow additional training time

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Productivity: Provide flexible scheduling Allow longer or more frequent work breaks Allow employee to work from home during part of the day or week Allow part time work schedules MOTOR AND MOBILITY IMPAIRMENT - Motor and mobility impairment, as used in the publication, refers to limitations in motor movements such as walking, lifting, sitting, standing, typing, writing, gripping, and maintaining stamina. Many conditions cause motor or mobility impairment, including multiple sclerosis, cancer, stroke, spinal cord injury, cumulative trauma disorder, back condition, arthritis, and heart condition. Activities of Daily Living: Allow use of a personal attendant at work Allow use of a service animal at work Make sure the facility is accessible Move workstation closer to the restroom Allow longer breaks Refer to appropriate community services Fatigue/Weakness: Reduce or eliminate physical exertion and workplace stress Schedule periodic rest breaks away from the workstation Allow a flexible work schedule and flexible use of leave time Allow work from home Make sure materials and equipment are within reach range Fine Motor: Provide alternative computer access Provide alternative telephone access Provide writing and grip aids Provide a page turner and a book holder Provide a note taker Provide forearm supports Gross Motor: Provide carts (motorized and general purpose), adjustable lift tables, step stools,

stair-climbing hand trucks, and tote boxes Provide compact lifting devices that are often light-weight and can be maneuvered in

tight spaces Work-site Access: Provide parking close to the work-site Reduce walking or provide a scooter or other mobility aid Provide an accessible entrance

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Install curb cuts Provide an elevator Install automatic door openers Workstation Access: Implement ergonomic workstation design Provide ergonomic chairs, forearm supports, articulating keyboard trays, telephone

headsets, anti-fatigue mats Provide adjustable sit/stand workstations and/or accessible workstations Provide lateral files and lazy Susan filing carousels for frequently accessed files Provide an accessible route of travel to other work areas used by the employee Move workstation close to other work areas, office equipment, and break rooms MENTAL HEALTH IMPAIRMENT - Psychiatric impairment, also called "mental illness," refers collectively to all diagnosable mental disorders. Mental disorders are health conditions that are characterized by alterations in thinking, mood, or behavior. Examples of psychiatric impairments include depression, bipolar disorder, anxiety disorder, schizophrenia, and addiction. Depression and Anxiety: Reduce distractions in work environment Provide to-do lists and written instructions Remind employee of important deadlines and meetings Allow time off for counseling Provide clear expectations of responsibilities and consequences Provide sensitivity training to co-workers Allow breaks to use stress management techniques Develop strategies to deal with work problems before they arise Allow telephone calls during work hours to doctors and others for support Provide information on counseling and employee assistance programs Handling Changes in the Workplace: Recognize that a change in the office environment or in supervisors may be difficult

for a person with a psychiatric impairment Maintain open channels of communication between the employee and the new and

old supervisor to ensure an effective transition Provide weekly or monthly meetings to discuss workplace issues and productions

levels Difficulty Staying Organized and Meeting Deadlines: Make daily TO-DO lists and check items off as they are completed Use several calendars to mark meetings and deadlines Remind employee of important deadlines Use electronic organizers Divide large assignments into smaller tasks and goals

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SENSORY IMPAIRMENT - Sensory impairment, as used in the publication, is any condition that affects hearing, speech, vision, or respiration. Hearing: Provide amplification for meetings, telephone use, and communication in noisy

environments Provide real-time captioning Use e-mail, instant messaging, and text messaging when appropriate Provide visual indicators for alarms and emergency situations Reduce background noise Use TTYs, assistive listening devices, and interpreters when needed Provide clear paths of travel in busy environments Speech: Provide speech amplification, speech enhancement, or other communication device Use written communication, such as e-mail or fax Hire a sign language interpreter and train on basic sign language Use real-time captioning, instant messaging, text messaging Provide an accessible, quiet room for meetings Vision: Magnify written material using hand/stand/optical magnifiers Provide large print material or screen reading software Reduce glare by adding a glare screen and blinds Install proper office lighting Allow frequent rest breaks Respiration: Maintain a clean and healthy work environment Provide air purification Condition, heat, dehumidify, or add moisture to the air as appropriate Provide additional rest breaks for the individual to step out for fresh air or take

medication Create a smoke and fragrance-free work environment Consider an alternative work arrangement such as work from home Allow for alternative work arrangements when construction is taking place Use alternative pest management practices Implement a flexible leave policy Provide appropriate mask or respirator

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Other - Other accommodation situations that involve lawyers may cross disability areas. These can involve emergency evacuation, learning, and travel. Emergency Evacuation: For additional information on accommodations for individuals with disabilities during

emergency evacuation, see: http://AskJAN.org/topics/emevac.htm. Learning: For additional information on accommodations for individuals with disabilities during

the learning process, see: http://AskJAN.org/media/lear.htm. Travel: Provide extra hotel night for long travel times Offer Web-casting and conference call options for meetings Allow use of personal assistant Allow use of service animal For additional information on accommodating individuals with disabilities during travel, see: http://AskJAN.org/corner/vol01iss15.htm.

References

Bureau of Labor Statistics, U.S. Department of Labor, Occupational Outlook Handbook, 2010-11 Edition, Lawyers, on the Internet at http://www.bls.gov/oco/ocos053.htm (visited December 28, 2011). Updated 12/28/10.

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This document was developed by the Job Accommodation Network, funded by a contract agreement from the U.S. Department of Labor, Office of Disability Employment Policy (DOL079RP20426). The opinions expressed herein do not necessarily reflect the position or policy of the U.S. Department of Labor. Nor does mention of trade names, commercial products, or organizations imply endorsement by the U.S. Department of Labor.

4/27/2017 Reasonable Accommodations for Attorneys with Disabilities

https://www.eeoc.gov/facts/accommodationsattorneys.html 1/19

Notice Concerning TheAmericans WithDisabilities ActAmendments Act Of2008

The Americans with DisabilitiesAct (ADA) Amendments Act of2008 was signed into law onSeptember 25, 2008 andbecomes effective January 1,2009. Because this law makesseveral significant changes,including changes to thedefinition of the term"disability," the EEOC will beevaluating the impact of thesechanges on this document andother publications. See the listof specific changes to the ADAmade by the ADA AmendmentsAct.

The U.S. Equal Employment Opportunity Commission

REASONABLE ACCOMMODATIONS FOR ATTORNEYS WITHDISABILITIES

INTRODUCTION

Diversity in the legal profession has been the subject of muchdiscussion and study for a number of years. A 2003 report by the U.S.Equal Employment Opportunity Commission (EEOC), entitled Diversity inLaw Firms, notes the significant role that lawyers play in social, economic,and political life and the influence that minorities and women have beenable to attain as their numbers in the legal profession increase.1

To date, individuals with disabilities generally have not been a part ofthe discussion about diversity in the legal profession. Yet, access to theprofession is important for people with disabilities for the same reasons itis important to minorities and women. While there is little reliable data onthe representation of individuals with disabilities in the legal profession,anecdotal evidence suggests that lawyers with disabilities face many of thesame barriers to employment that people with disabilities face in otherjobs.

Among the problems lawyers with disabilities have cited is lack ofaccess to reasonable accommodations. Title I of the Americans withDisabilities Act of 1990 (ADA) requires private and state and localgovernment employers with 15 or more employees to provide “reasonableaccommodation” to qualified applicants and employees with disabilities,unless doing so would cause an undue hardship.2 Section 501 of theRehabilitation Act of 1973 imposes the same requirements on federalagencies, regardless of the number of employees they have.3

This fact sheet addresses the application of the reasonable accommodation obligation to attorneys andtheir employers.4 Attorneys with disabilities, both as applicants and employees,5 may need a range ofaccommodations in order to apply for and perform many types of legal jobs. Most of the accommodationsthat attorneys with disabilities may need are similar to those needed by other professionals with disabilitieswho work in an office setting. Thus, much of the discussion in this document will apply to a wide range ofadministrative and professional jobs.

This fact sheet reviews many of the most common types of reasonable accommodations that lawyerswith disabilities may need. 6 Some of these accommodations, such as modified schedules andtelecommuting, are often used by legal employers generally to attract and retain attorneys. Many legalemployers have recognized the importance of flexibility to remain competitive in hiring the best attorneys.For these employers, providing reasonable accommodation will be an extension of this approach. Inaddition, providing reasonable accommodation for qualified attorneys with disabilities serves the larger goalof enabling legal employers to diversify their workforce.

A. General Information About Reasonable Accommodation

Reasonable accommodation refers to any change in the work environment or in the way things arecustomarily done that enables an individual with a disability to enjoy equal employment opportunities.

There are three categories of reasonable accommodation:

modifications to the job application process

modifications to the work environment or to the manner or circumstances under which the positionheld or desired is customarily performed

https://www.eeoc.gov/ada/amendments_notice.html



modifications that enable an employee with a disability to enjoy equal benefits and privileges ofemployment (e.g., employersponsored training or social events).7

Reasonable accommodations remove workplace barriers that would otherwise impede qualifiedattorneys with disabilities from competing for jobs, performing jobs, or gaining access to the benefits ofemployment. As with so many ADA issues, reasonable accommodation decisions should be made on a casebycase basis after discussions that allow the employer to understand the nature of the accommodation(s)requested and the precise aspect of the application process, job, or benefit that poses a barrier. In somecircumstances, an employer may also request documentation of the attorney’s disability.

B. Misconceptions Concerning Attorneys with Disabilities and ReasonableAccommodation

Some employers assume that all attorneys with disabilities will need reasonable accommodation orthat accommodations will be too costly or difficult to provide. In fact, many attorneys with disabilities willnever need reasonable accommodation and most accommodations can be provided at little or no cost.8Employers also may mistakenly assume that if a person needs an accommodation, she is likely to be unableto meet expected performance measures – for example, satisfying a minimum number of billable hours.Indeed, managers in professions that require long hours, specialized skills, and stressful working conditionssometimes assume that persons with disabilities, or certain types of disabilities, are not capable ofperforming such work, especially if they request reasonable accommodation.

Example 1: Juan, an associate with a mediumsized law firm, has alearning disorder (low processing speed). Juan has been workingsuccessfully at the firm for six months, but he is concerned that hisdisability is starting to create some difficulties in performing his job. Juanfinds that his disability can cause him to become distracted but that he canfully compensate for this problem by dictating his thoughts into a taperecorder instead of writing or typing. Therefore, he requests that he bepermitted to have a secretary transcribe his recordings. Thisaccommodation enabled him to work successfully at his prior firm. Juan’ssupervisor, a partner, denies the request, telling Juan that, “in a law firmthese days, a competent lawyer has to be able to draft his own documents,not dictate them to someone else.” Juan leaves the firm soon thereafter.

The firm may have violated the ADA. Even if the partner had questionsabout Juan’s competence, he should have considered that Juan had usedthis accommodation to work successfully at his prior firm. This would be astrong indication that the accommodation enables Juan to perform his jobeffectively. The ADA permits employers to discuss how accommodationswork and to ensure that an employee is qualified to perform the essentialfunctions – the primary job duties. Here, the partner never discussed hisconcerns with Juan or gave Juan an opportunity to respond. If thisaccommodation would have permitted Juan to perform his job, withoutcausing undue hardship to the firm, then the partner’s denial is a violationof the ADA.

The need for reasonable accommodation does not signal an inability to do the job. The purpose ofworkplace accommodations is to enable attorneys with disabilities to perform their jobs and meet theemployer’s performance standards.

C. Applicants and Reasonable Accommodation

Employers may need to provide reasonable accommodation for the application process. Common formsof reasonable accommodation needed may include using sign language interpreters and providing writtenmaterials in alternative formats, such as Braille or large print. Employers may find it helpful to note on



applications that applicants may request reasonable accommodation for the hiring process and to specify acontact person.

Example 2: Using a relay service, Francesca, who is deaf, calls to schedulean interview with a law firm. She tells the secretary that she is deaf andwill need a sign language interpreter. The secretary consults with theHuman Resources Department which makes the arrangements.

Example 3: A law firm is interviewing several third year law students, oneof whom uses a wheelchair. The firm practice is to take the students tolunch at a restaurant next door, but that restaurant has steps at theentryway. The managing partner instructs his secretary to change thereservation to an accessible restaurant down the street.9

Employers should consider whether their online recruiting and application systems afford access tothe application process to individuals with disabilities who use specialized computer software (e.g.,applicants with vision impairments who use screen reading or magnification software).

During an interview, employers may not generally ask applicants if they need reasonableaccommodation to perform a job. However, if an employer knows a particular applicant has a disability,either because it is obvious or because the person has voluntarily revealed it, and the employer reasonablybelieves the disability might require accommodation to perform the job, the employer is entitled to ask thefollowing two questions:

Do you need reasonable accommodation to perform the job?

If the answer is yes, what accommodation do you believe you need? 10

Employers can assist applicants in assessing whether they will need an accommodation by makingclear the job requirements, the duties to be performed, and the expected level of performance.

The need for reasonable accommodation is not a valid reason to reject an applicant.

D. Requesting Reasonable Accommodation

The ADA generally requires applicants and employees with disabilities to request reasonableaccommodation, rather than requiring employers to ask if accommodation is needed.11 A request is thebeginning of the reasonable accommodation process, not the end. The employer may have questions aboutthe nature of the impairment – , whether it is a “disability” – and the requested accommodation. Thosequestions are addressed as part of “the interactive process” that follows the request. The interactiveprocess is discussed in section F.

To request a reasonable accommodation, an attorney must let the employer know that because of amedical condition he needs a change to the application process, to the job, or to a benefit of employment.An attorney does not have to mention the ADA, the Rehabilitation Act, or “reasonable accommodation” anddoes not have to provide evidence that the condition is a “disability” at the time the request is made. Theattorney just has to make a “plain English” request for a change due to a medical condition. In someinstances, a request for reasonable accommodation may come from a third party, for example a doctor’snote outlining work restrictions.

Some employers may not appear open to receiving requests for reasonable accommodation, and somelawyers with disabilities may be reluctant to ask for accommodation because they are concerned that theemployer will perceive them as less competent – even when the employer has done nothing to suggest thatit has such a perception. However, as in other workplace settings, employees in the legal profession whoneed accommodation must request it and employers should be prepared to respond appropriately.



Example 4: Omar, who has cerebral palsy, has recently been hired by a lawfirm. He finds that his physical limitations in using a computer keyboard,combined with the heavy workload and constant deadlines, are causing himto fall behind in his assignments. Omar is concerned about what the firmwill think if he asks for a reasonable accommodation, but he talks to hissupervising partner about voicerecognition software that would make itmuch easier to use a computer and therefore perform his work. The partnerconsults with the firm’s Information Technology department and thesoftware is ordered and installed. Omar also receives specialized training inhow to use the software.

Example 5: Mary, a senior attorney with a federal agency, has bipolardisorder. Her agency is aware of her disability and has provided anaccommodation. Mary’s doctor has recently changed her medication, whichis resulting in temporary problems with concentration. At the same time,Mary is trying to cope with a change in her workload, thus resulting in asignificant increase in stress. Mary contemplates requesting a reasonableaccommodation, such as temporarily altering her work hours or removingseveral marginal functions. But, because she is concerned that heremployer will view her as unable to meet job requirements if she asks fortoo many accommodations, Mary decides not to ask for the additionalaccommodation.

Perhaps Mary can handle the change in medication, the changes in herworkload, and the resulting increase in stress. However, if she cannothandle the stress and performance problems result, neither Mary nor heremployer benefit. While it may be difficult for an attorney with a disabilityto ask for an accommodation, or multiple accommodations, it is better forboth the attorney and the employer to deal with an accommodation requestthan to address performance problems that result from a failure to requesta needed accommodation.

Employers can do a number of things to create a climate in which lawyers will request neededaccommodation. For example:

They can adopt policies and procedures on how requests for accommodation will be handled andensure that these policies are well publicized and implemented.

They can make sure that both employees and managers know that company policy supports fullcompliance with the ADA and the provision of reasonable accommodation.

They can require adequate training of supervisors, managers, and human resources professionals onhandling requests for accommodation and other requirements of the ADA.

E. When to Request a Reasonable Accommodation

Individuals with disabilities may request reasonable accommodation at any time during the applicationprocess or during their employment.12 Some attorneys may choose to wait until they have a job offer beforerequesting a reasonable accommodation. Others may voluntarily raise the issue during the hiring process.13And attorneys may develop disabilities during their employment, thus prompting a request for reasonableaccommodation.

Example 6: Roger is General Counsel of a major corporation. He developsmacular degeneration and, as a result, requests from the senior vicepresident the services of a reader as a reasonable accommodation. Heexplains that his eyesight no longer permits him to read and that he must



review many documents and contracts. The senior vice president agrees tothis request.

The ADA does not compel attorneys to ask for accommodations at a certain time. However, failure torequest needed accommodation in a timely manner (or to accept a proffered accommodation) could affectjob performance and result in discipline or termination based on poor performance or conduct.14

Example 7: An attorney at a nonprofit organization recognizes soon aftershe begins working that she is having difficulty following conversations atmeetings because of her deteriorating hearing. While the attorney uses ahearing aid, it only helps her when talking directly to one person and not ina large room where many people participate in a discussion. The attorneybelieves that she would be able to hear if the employer provided a portableassistive listening device. The attorney brings the situation to hersupervisor’s attention and explains that a simple assistive listening systemwould include an FM transmitter and microphone that could be placed at thecenter of a conference table and an FM receiver and headset that she wouldwear. The system would amplify speakers’ voices over the headset withoutaffecting the way in which other meeting participants would hear theconversation. The employer provides the reasonable accommodation andthe attorney now performs all of her job duties successfully.

Example 8: A county government attorney chooses not to disclose herhidden disability, even when she begins having performance problems thatshe believes are disabilityrelated. Her supervisor notices the performanceproblems and counsels the attorney about her deficiencies, but theproblems persist. The supervisor warns that if her work does not showimprovement within the next two months, she will receive a writtenwarning. At this point, the attorney discloses her disability and asks forreasonable accommodation. The supervisor should discuss the request andhow the proposed accommodation will help improve the attorney’sperformance. The twomonth period to evaluate the attorney’s performanceshould be suspended pending a decision on her request for reasonableaccommodation.

Example 9: Same facts as in Example 8, but the supervisor’s response tothe request for reasonable accommodation is to deny it immediately,explaining, “You should not have waited until problems developed to tellme about your disability.” The attorney, however, did not realize that shehad any serious performance problems until her supervisor brought them toher attention, thus prompting her to request accommodation. Thesupervisor should not have summarily dismissed the request but insteadshould have discussed it, gathered more information if necessary, anddetermined whether a reasonable accommodation for a disability wasneeded. Then, as in Example 8, the twomonth period could commence tomeasure whether the attorney’s performance improved.

Example 10: An attorney with a small firm has a learning disability anddoes not request accommodation during the application process or when hebegins working. Because the attorney had a bad experience at a prior jobwhen he requested accommodation, he decides not to disclose his disabilityor ask for any accommodations. Performance problems soon arise, and theattorney’s supervising partner brings them to the attorney’s attention. Hetries to solve the problems on his own, but they persist and he is counseledon improving his performance. The firm follows its policy on counseling anddisciplining attorneys who are failing to meet minimum requirements, butthese efforts are unsuccessful. During this entire period, when the attorneyis receiving counseling and warnings, he does not ask for reasonable



accommodation. However, when the partner meets with the attorney to firehim, then the attorney reveals a disability and requests accommodation.

The attorney’s request for reasonable accommodation is too late.Reasonable accommodation is always prospective. Therefore, an employeris not required to excuse performance problems that occurred prior to theaccommodation request. While it may be understandable that the attorney’sprior experience made him reluctant to ask for accommodation, his failureto do so was a mistake. The firm correctly responded to the attorney’sperformance problems and gave him sufficient opportunity to make changesand request accommodation. Once an employer makes an employee awareof performance problems, it is the employee’s responsibility to request anyaccommodations to address and rectify them.

F. Discussing a Request for Reasonable Accommodation: The Interactive Process

The request for accommodation is the first step in an informal, interactive process between theattorney and the employer.15 This process will generally focus on two issues: whether the attorney has a“disability” as defined by the ADA and why the requested accommodation is needed. In many instances, asimple conversation between the employer and the attorney will suffice to clarify and resolve these issues.However, when the disability and/or the need for accommodation are not obvious, the employer may askthe attorney for additional information. The employer may also seek, if necessary, reasonabledocumentation from an appropriate health care or vocational rehabilitation professional about the attorney’sdisability and functional limitations.16 The employer is entitled to know that the attorney has a covered“disability” for which he needs a reasonable accommodation. But, the employer is not entitled to obtain allof an attorney’s medical records, since they will contain far more information than is necessary to determinewhether a “disability” exists and why there is a need for reasonable accommodation.

An employer that requests documentation should specify what types of information it needs regardingthe disability, its functional limitations, and/or the need for reasonable accommodation. In some instances,the employer may obtain needed information by asking the attorney to sign a limited release allowing theemployer to submit a list of specific questions to the health care or rehabilitation provider, or by requestingthat the attorney submit the questions to the provider directly. These questions should avoid legalterminology and relate only to the condition for which the attorney is requesting accommodation and thejobrelated barriers she is experiencing. Asking the attorney or her health care provider vague questionsincreases the likelihood of receiving vague answers.

Unproductive approach: Does Jane Doe’s condition substantially limit amajor life activity?

Better approach: Please specify all activities that are limited by Jane Doe’sasthma. For example, does Ms. Doe’s asthma affect her ability to breathe?To walk? Any other activities? For all activities affected by Ms. Doe’sasthma, please indicate: 1) the degree of limitation (e.g., under certainspecified conditions she can have an asthma attack that will result insevere difficulty breathing and require that she go to the hospital; Ms. Doeexperiences minor breathing difficulties during spring and fall allergyseasons) and 2) the frequency with which these limitations occur (e.g.,constantly, every few weeks, every two months, only during certainseasons, when confronted with high levels of stress).

The employer should be clear about the purpose for asking such questions, i.e., a specific questionshould be designed to elicit information to enable the employer to determine if the attorney has an ADA“disability,” why a reasonable accommodation is needed, or other possible accommodations that would meetthe attorney’s needs. Clearly, the employer must understand the nature of the problem, how it is connected



to the disability, and how a suggested accommodation would resolve the problem before she can assesswhat accommodation might be appropriate.17

Example 11: Rebecca, an inhouse attorney, asks her supervisor to makeseveral changes to accommodate her chronic fatigue syndrome. Sherequests that she be allowed to arrive at work at 10:00 a.m. (andcorrespondingly work later in the evening), that meetings not be scheduledbefore 10:00 a.m., if possible, and that she be given a reclining chair in heroffice. The general starting time is 8:30 a.m. and no attorneys havereclining chairs. The employer asks for a more specific explanationregarding the connection between the chronic fatigue syndrome and theaccommodations requested. The attorney explains that she has a conditionclosely associated with chronic fatigue syndrome which results in low bloodpressure. This, in turn, results in lightheadedness, and she occasionallyfaints. After such episodes, she feels tired and groggy and experiencesproblems concentrating for at least a couple of hours. The low bloodpressure is more likely to occur during the early morning hours and afterprolonged periods of sitting. Rebecca explains that the accommodationsshe is requesting are designed to enable her to work a full day,uninterrupted by any symptoms, by starting work at 10:00 a.m. and byavoiding the need to sit or stand for prolonged periods. A reclining chairwould enable her to avoid sitting upright, thus preventing the onset of thelow blood pressure and enabling her to continue working. Since Rebecca’sjob involves numerous telephone conversations and significant amounts ofreading, she can use the reclining chair when her symptoms prevent sittingat her desk. Her request to schedule meetings at a later hour, wherepossible, would enable her to avoid missing important work.

The employer requests documentation to substantiate Rebecca’s medicalcondition, the symptoms she experiences, and the need for theaccommodations she identifies. The doctor provides information thatcorroborates Rebecca’s description of her chronic fatigue syndrome and lowblood pressure, that explains how reclining, as opposed to sitting, canavoid the onset of low blood pressure, and that concludes that Rebeccashould be able to work a full day with these accommodations. Assuming thelawyer has a “disability,” and absent any undue hardship, the employermust provide these accommodations or alternative ones that address herlimitations and enable her to perform the essential functions of herposition.

In some instances, it will immediately be clear whether a proposed accommodation will be effective. Inother instances, an employer may have to consider more carefully whether an accommodation will work.The attorney should inform his employer whether he has used a proposed accommodation before – forexample, at a previous job or in school – and if so, how well it worked.

Changes in the disability or changes to a job may require an accommodation that the attorney hasnever before used. When this is the case, an employer should not simply dismiss the possibility that anaccommodation may work. Depending on the type of accommodation, an employer in this situation maywish to propose providing the accommodation on a trial basis to determine its effectiveness.

G. Types of Reasonable Accommodations

Reasonable accommodations for attorneys may take many forms. Common examples18 include:

making existing workplaces accessible (e.g., installing a ramp, widening a doorway, or reconfiguring aworkspace)

job restructuring (e.g., removing a marginal function)19



parttime or modified work schedules

unpaid leave once an employee has exhausted all employerprovided leave (e.g., vacation leave, sickleave, personal days)

acquiring or modifying equipment (e.g., a TTY that would enable a deaf attorney to use a telephonerelay service, or an assistive listening device that an attorney who is hard of hearing can use at ameeting)

modifying workplace policies

providing tests or training materials in an alternative format, such as Braille or large print or onaudiotape

providing qualified readers or sign language interpreters

permitting telework, even if the employer does not have an established telework program or theemployee with a disability has not met all the prerequisites to qualify for an existing teleworkprogram (e.g., length of service)20

changing the methods of supervision (e.g., supervising partner provides associate with critiques of hiswork through email rather than facetoface meetings)21

reassignment to a vacant position.22

This list of accommodations is not exhaustive. For example, lawyers with disabilities affecting armstrength and the ability to pull and push might require automatic door openers. A lawyer with a visionimpairment may need a screen reading program for a computer, and a lawyer whose disability preventstyping may need voicerecognition software.

Example 12: Deborah required extensive leave due to leukemia. While thefirm granted the leave, her supervising partner wants to give her anunsatisfactory review because she did not bill the required number of hoursdue to her use of extended leave. Penalizing Deborah with a poor reviewwould be a violation of the ADA because it would render the leave anineffective accommodation and would constitute retaliation for her use of areasonable accommodation.23 The firm should evaluate Deborah’sperformance taking into account her productivity for the months she didwork. It might also choose to delay her evaluation for several months or doan interim evaluation and allow Deborah to resume a normal workload, thusenabling the firm to do a more accurate review of her work.

Example 13: Jonathan, a trial attorney working for a federal agency, asksfor a reassignment to a lessdemanding position because he finds the longhours and constant deadlines increasingly difficult to handle due toParkinson’s disease. The agency has a vacancy for an attorney to draftagency policy directives and respond to legal inquiries from agency fieldoffices and the public. The job does not require the same long hours as hiscurrent litigation position and he would have more control over the pace ofwork. Since Jonathan meets the qualifications for this position and theposition is at the same grade level as his current job, the agency mustreassign him unless it can show undue hardship.

Example 14: Emily has lymphedema which causes a buildup of lymphaticfluids in her right leg. The swelling is painful and makes it very difficult towalk more than very short distances, thus affecting Emily’s ability tocommute to work. She provides documentation from her doctor confirmingthat the lymphedema is a chronic condition that has worsened in the lastfew months. The doctor does not expect any improvement in the nextseveral months. As a reasonable accommodation, Emily requests that shebe allowed to work from home three days a week. Much of her workinvolves writing and reviewing documents which she can do using acomputer. She also can communicate with clients and colleagues through



use of the phone and email. The doctor’s letter explains that the threedays working at home will ease the pain and make it tolerable for Emily tocommute the other two days. Emily and her supervising partner work out anappropriate schedule and methods for ensuring that work is completed in atimely manner. Emily also agrees that, with notice, she can switch daysworking in the office if she needs to attend a meeting. The partner agreesto this schedule for four months as long as Emily’s condition does notimprove. After four months, the partner will request an update on Emily’scondition to determine if she still requires telework as a reasonableaccommodation or any modification to this arrangement due to any changesin her condition.

Sometimes employers are quick to provide items that they expect a person with a disability will need,while slow to grant requests for unexpected things. If employers are uncertain why something is needed,they should ask. Often, the unexpected items may be the easiest to provide (e.g., special office suppliesmay be necessary because of a disability, such as certain types of pens for attorneys with limited use oftheir hands).

In some situations reasonable accommodation is needed to make the working environment moreaccessible to attorneys with disabilities. For example, an employer might have to install flashing emergencylights or provide a personal digital assistant (PDA) to notify an attorney who is deaf of an emergencysituation. Employers also might need to shift furniture to make it easier for an attorney who uses awheelchair to navigate through the office.

While most forms of reasonable accommodation cost little or nothing to provide, some forms ofaccommodation may entail higher expenses. Before investing money for more expensive accommodations,the employer and the attorney may wish to explore whether a demonstration of the accommodation can bearranged. If an attorney has used an accommodation before, and can give a detailed explanation of how itwill work, setting up a demonstration may not be necessary.

Employers that are concerned about an accommodation’s cost may choose to explore the possibilitythat an accommodation can be provided through vocational rehabilitation agencies or other federal or stateprograms. However, an employer who can pay the cost of a reasonable accommodation without unduehardship cannot refuse to provide an accommodation because it cannot be obtained through some othersource.24

H. Actions Not Required as Reasonable Accommodation

Certain actions are not required as reasonable accommodations.

Employers are never required to remove an “essential function” – i.e., a fundamental job duty. Anattorney with a disability must be able to perform the essential functions of his position, with orwithout reasonable accommodation. Conducting legal research, writing motions and briefs, counselingclients, teaching a law course, drafting regulations and opinion letters, presenting an argument beforean appellate court, drafting testimony for a legislative body, and conducting depositions and trials areexamples of what may be essential functions for many legal positions.

Employers should be careful to distinguish essential functions from marginal functions duties thatare tangential or secondary to the primary job duties. While essential functions never have to beremoved from a position, marginal functions may have to be removed as a reasonable accommodationif a person cannot perform them because of a disability.

Example 15: A senior associate with multiple sclerosis practices trustsand estates law. The essential functions of her position include draftingwills, providing representation at probate hearings, and counselingclients on complex tax implications related to the transfer of property.In order to conserve the limited energy that results from her disability,the attorney requests that her employer no longer require that she



serve on the firm’s hiring committee. The attorney and firm determinethat this is a marginal function and should be eliminated so that shecan focus her limited energy on performing the essential functions.

Employers are not required to lower or eliminate production standards for essential functions, eitherquantitative or qualitative, that are uniformly applied. For example, a law firm may require attorneyswith disabilities to produce the same number of billable hours as it requires all similarlysituatedattorneys without disabilities to produce. Reasonable accommodation may be needed to assist anattorney to meet the billable hours requirement, but it would not be a form of reasonableaccommodation to exempt an attorney from this requirement.

Employers should make clear their expectations on production standards, the work that must beproduced, and any timetables for producing it. If problems arise in any of these areas, supervisorsshould immediately discuss them with the attorney with a disability just as they would with any otherattorney. On the other hand, if an attorney recognizes that a workplace problem is connected to adisability, the attorney should raise the issue of reasonable accommodation to correct the problem,thus enabling the attorney to meet the employer’s expectations.25

Employers are not required to change an attorney’s supervisor as a reasonable accommodation.26However, nothing in the ADA would prevent an employer and attorney from agreeing to a supervisorychange for reasons related to a disability.

Employers are not required to withhold discipline warranted by poor performance or conduct.27 (SeeExample 10.)

Employers do not have to provide “personal use” items needed in accomplishing daily activities bothon and off the job. Thus, an employer is not required to provide an attorney with a wheelchair, hearingaids, or similar devices if they are also needed outside of the workplace.

I. Management Should Respond Quickly to Requests for Accommodation

After receiving a request for reasonable accommodation, an employer should move expeditiously torespond to it, seeking any additional information that is needed, and make a determination.28 In somecases, there will be an urgent need to make a determination.

Example 16: A law firm’s mergers and acquisitions department announceson Monday that all attorneys are expected to attend a staff meeting onWednesday. A deaf attorney requests a sign language interpreter. The firmmust move quickly to provide an interpreter for the meeting.

In other situations, time may not be as critical, but it is always best to make responding to a request apriority. This is especially true when there may be a need to obtain documentation on the disability and/orneed for the accommodation or to consult with outside sources on possible accommodations. Employersshould keep the attorney informed of developments and explain any delays in processing the request orproviding the accommodation. Any unnecessary delay in responding to a request for reasonableaccommodation could result in a violation of the ADA.

J. Management May Choose Between Effective Accommodations

In many situations, more than one possible accommodation may meet the needs of the attorney with adisability. The ADA requires that any accommodation chosen be reasonable and effective in eliminating theworkplace barrier.29 While the employer should give serious consideration to a specific accommodationrequested by an attorney, the employer is not required to provide that accommodation. The employer maychoose among reasonable accommodations as long as the chosen accommodation is effective in eliminatingthe workplace barrier.30 This means an employer is free to choose a less expensive or less burdensomealternative if it will still be effective in meeting the attorney’s needs. If an attorney has problems with an



accommodation suggested by management, she should explain why it is ineffective, or less effective, ineliminating a workplace barrier, and not merely object to the alternative accommodation.31

Example 17: A deaf summer associate will accompany a litigator to an allday deposition. He requests two sign language interpreters. The law firmsuggests that one interpreter should be sufficient. The associate explainsthat a sign language interpreter cannot interpret for several consecutivehours. In order to avoid calling frequent breaks in the deposition, theassociate believes that two interpreters are needed. The firm agrees andmakes the arrangements.

Example 18: A law professor with a visual disability finds that the glarecreated from light coming through her office window makes it very difficultto read. She explains the problem to the head of her department andrequests that she be moved to an office without a window. While such anoffice is available, the department head asks if curtains or shades wouldsolve the problem. The professor agrees that they would and thedepartment head makes arrangements for shades to be installed ratherthan moving the professor to a new office.

Sometimes the goal in the interactive process may be to identify several types of effectiveaccommodations, to assess their relative merits, to get the attorney’s input on what he prefers and why, andthen to have the employer make a decision. While employees often have suggestions for possibleaccommodations, employers should be actively involved in proposing ideas based on a thoroughunderstanding of the workplace barrier. The employer may seek assistance from a variety of sources onpossible accommodations, including the Job Accommodation Network, Disability and Business TechnicalAssistance Centers, disability organizations, and the EEOC.32

K. Employers May Need to Provide More Than One Accommodation

Sometimes an attorney may need only one accommodation, while in other cases she may need two ormore accommodations.33 The need for reasonable accommodation also can change over time, particularlyfor degenerative disabilities.34 Attorneys with disabilities should not assume that since they asked foraccommodation once, the employer knows when a different accommodation is needed. To the contrary,attorneys should make a new request if a current accommodation no longer works or if an additionalaccommodation is required. If it is unclear why a new accommodation is needed, an employer should againengage in the interactive process. Generally, an employer should not ask for additional information toestablish that the attorney has an ADA “disability” unless previous information suggested that the disabilityor its limitations would be of limited duration.35

Example 19: A senior associate has multiple sclerosis. As a reasonableaccommodation, he is allowed to work a flexible schedule as long as hecoordinates his hours with other attorneys in his practice area. He also isallowed to work from home when his disability flares up and makescommuting to work more difficult. The attorney’s eyesight is beginning todeteriorate severely as a result of the disability. He raises the issue of hisfailing eyesight with the firm’s human resources department, which handlesmost accommodation requests, and asks if he might be assigned additionalsecretarial help. The human resources manager does some research andlearns about equipment that he believes may enable the attorney tocontinue reviewing and drafting documents on a computer, includingsoftware that will read information on the screen and an optical scannerthat can be used to convert printed material into an electronic format. Theattorney agrees that this equipment should meet his needs. The firm



purchases the equipment and provides the attorney with appropriatetraining on how to use it.

It is always a good idea for an employer to consult with the attorney after providing a reasonableaccommodation to ensure that it is working as expected. Sometimes, despite everyone’s best intentions, areasonable accommodation does not work. In that case, the employer should consider whether there isanother accommodation that would work and would not cause undue hardship.36

L. Thinking Ahead Can Avoid Future Problems

Sometimes employers make major changes in the work environment that affect all employees but mayhave a particular impact on attorneys with disabilities, such as changes to information technology orrelocation of physical facilities. Consulting with an attorney with a disability before making such changescan avoid problems and save money.

Example 20: A law firm intends to move into a building that is underconstruction. The firm has a midlevel associate who uses a wheelchair. Thefirm consults with the attorney about what questions it should ask thebuilding owner and its architectural firm to ensure accessibility. Theattorney provides a list of items addressing areas such as the entry to thebuilding, the elevators, the restrooms, the parking lot, the stairwells (toensure they are designed appropriately for emergency evacuation), and thefirm’s own space. The firm discusses the attorney’s concerns with thebuilding owners and the architectural firm, and continues to consult with theassociate throughout the building process to ensure the new space isaccessible. Involving the employee with a disability helps ensurecompliance with Title III of the ADA,37 which requires that newlyconstructed buildings meet certain accessibility standards. Moreover, theemployee may require additional adaptations not mandated by Title III, butnonetheless required as a reasonable accommodation (absent unduehardship) under Title I. Ensuring that accessibility features are built into thenew structure avoids the difficult and potentially more expensive situationof considering retrofits after the building’s completion.

Employers also should include employees with disabilities when reviewing or making changes toemergency protocols.38 This includes ensuring that employees with certain disabilities are promptly madeaware of emergency situations (e.g., installing flashing lights in addition to alarm bells) and thatappropriate plans are in place for the evacuation of anyone with a mobility impairment.

M. Reasonable Accommodation to Gain Equal Access to Benefits of Employment

The reasonable accommodation obligation extends to ensuring equal access to the “benefits andprivileges of employment.”39 Benefits and privileges of employment include, but are not limited to,employersponsored: (1) training that can lead to employee advancement (whether provided by theemployer or an outside entity);40 (2) services (e.g., employee assistance programs, credit unions,cafeterias, lounges, gymnasiums, auditoriums, transportation); and (3) social and professional functions(e.g., parties to celebrate retirements and birthdays, company retreats, and outings to restaurants, sportingevents, or other entertainment activities). Benefits and privileges of employment also include access toinformation communicated in the workplace, such as through email, public address systems, or duringmeetings, whether or not that information relates directly to performance of an attorney’s essential jobfunctions.



Example 21: A corporation provides parking for its employees. Parkingspaces are unassigned. An attorney has severe emphysema and asks for aparking space next to the door. His disability requires constant use of aportable oxygen tank which, in turn, restricts him from walking evenrelatively short distances. The attorney is seeking an accommodation touse the employerprovided benefit. Therefore, the employer should reservea parking space next to the door for use by the attorney as a reasonableaccommodation, if there is no undue hardship, in order to provide himequal access to the parking benefit.

An employer’s obligation to make a benefit accessible with reasonable accommodation does notrequire the employer to provide an alternative benefit.41

Example 22: A corporation subsidizes paid parking for its employees. Alawyer with epilepsy does not drive because of her disability. She requeststhat the employer provide her with the cash equivalent of the parkingsubsidy as a reasonable accommodation so that she can use the money topay for her transportation. The employer does not have to grant thisrequest because the attorney is asking the employer to provide her with adifferent benefit – subsidized use of public transportation. The employerhas the right to choose to provide paid parking while not providingsubsidies for use of public transportation. The fact that the lawyer’sdisability does not allow her to make use of the paid parking does notrequire the employer to provide her with a different benefit.

N. Limitation on Providing Reasonable Accommodation: Undue Hardship

An employer has no obligation to provide a specific form of reasonable accommodation if it will cause“undue hardship,” i.e., significant difficulty or expense.42 Employers should not assume that because oneaccommodation would result in undue hardship, there would be undue hardship in providing anyaccommodation. Undue hardship must be determined on a casebycase basis, taking into consideration thefollowing factors:

the nature and cost of the accommodation needed

the overall financial resources of the facility making the reasonable accommodation; the number ofpersons employed at this facility; the effect on expenses and resources of the facility

the overall financial resources, size, number of employees, and type and location of facilities of theemployer (if the facility involved in the reasonable accommodation is part of a larger entity)

the type of operation of the employer, including the structure and functions of the workforce, thegeographic separateness, and the administrative or fiscal relationship of the facility involved inmaking the accommodation

the impact of the accommodation on the operation of the facility.43

Example 23: A law firm based in New York has offices in four other cities.The firm has an executive committee comprised of partners from eachoffice that sets salaries, establishes hiring policies, determines billingrates, and makes partnership decisions. The Atlanta office is consideringhiring a blind attorney who has requested the following: a screen readercomputer program that converts what is on the screen to speech; acomputer program that scans written text and reads it aloud; a Braille



printer; and a screen magnification program. In determining whether unduehardship exists, the Atlanta office must look at not only its resources butthe resources of the entire firm. The Atlanta office is not an independententity but maintains an integrated administrative and fiscal relationshipwith the head office in New York and the other offices; therefore, theresources of the entire firm must be taken into account in assessing unduehardship.

If the employer determines that the cost of a reasonable accommodation constitutes an unduehardship, it should consider whether some or all of the cost can be offset. In some instances, staterehabilitation agencies or disability organizations may provide certain accommodations at little or no cost.44An employer should also determine whether it is eligible for certain tax credits or deductions to offset thecost of the accommodation.45 But, an employer cannot claim undue hardship solely because it cannotobtain a reasonable accommodation at little or no cost, or because it is ineligible for a tax credit ordeduction.

An employer cannot claim undue hardship based on employees’ fears or prejudices about theattorney’s disability. Similarly, employers cannot base an undue hardship decision on the fears, prejudices,or preferences of clients or the public.46 However, undue hardship may exist if a particular form ofreasonable accommodation actually disrupts the ability of other attorneys and employees to do their jobs.

Example 24: Rachel, a city government attorney, seeks and is granted amodified work schedule because of her disability. Rachel’s job requires thatshe work closely with department attorneys as well as other employees.Her new schedule means she often is not available when other attorneysand employees need her assistance, thus resulting in missed deadlines andincomplete work. Additionally, other attorneys are handling more requestsfor assistance because of Rachel’s new schedule. Rachel’s new schedule iscausing an undue hardship on the agency because it adversely affects theability of other employees to perform their essential functions in a timelymanner.

O. Legal Enforcement

Private Sector/State and Local Governments

An attorney who believes that his employment rights have been violated on the basis of disability andwants to make a claim against an employer must file a “charge of discrimination” with the EEOC. The chargemust be filed by mail or in person with a local EEOC office within 180 days from the date of the allegedviolation. The 180day filing deadline is extended to 300 days if a state or local antidiscrimination law alsocovers the charge.47

The EEOC will notify the employer of the charge and may ask for a response and supportinginformation. Before a formal investigation, the EEOC may select the charge for its mediation program.Participation in mediation is free, voluntary, and confidential. Mediation may provide the parties with aquicker resolution of the case.

If mediation is not pursued or is unsuccessful, the EEOC investigates the charge to determine if thereis “reasonable cause” to believe discrimination occurred. If reasonable cause is found, the EEOC will thentry to resolve the charge. In some cases, where the charge cannot be resolved, the EEOC will file a courtaction. If the EEOC finds no discrimination, or if an attempt to resolve the charge fails and the EEOCdecides not to file suit, it will issue a notice of a “right to sue,” which gives the charging party 90 days tofile a lawsuit. A charging party also can request a notice of a “right to sue” from the EEOC 180 days afterthe charge first was filed with the EEOC.



For a detailed description of the process, please refer to the EEOC website athttp://www.eeoc.gov/employees/charge.cfm.

Federal Government

An applicant or employee who believes that her employment rights have been violated on the basis ofa hearing disability and wants to make a claim against a federal agency must file a complaint with thatagency. The first step is to contact an EEO Counselor at the agency within 45 days of the allegeddiscriminatory action. The individual may choose to participate in either counseling or in Alternative DisputeResolution (ADR) if the agency offers this alternative. Ordinarily, counseling must be completed within 30days and ADR within 90 days.

At the end of counseling, or if ADR is unsuccessful, the individual may file a complaint with theagency. The agency must conduct an investigation unless the complaint is dismissed. If a complaintcontains one or more issues that must be appealed to the Merit Systems Protection Board (MSPB), thecomplaint is processed under the MSPB’s procedures. For all other EEO complaints, once the agency finishesits investigation the complainant may request a hearing before an EEOC administrative judge or animmediate final decision from the agency.

In cases where a hearing is requested, the administrative judge issues a decision within 180 days andsends the decision to both parties. If the agency does not issue a final order within 40 days after receivingthe administrative judge’s decision, the decision becomes the final action of the agency.

A complainant may appeal to EEOC an agency’s final action within 30 days of receipt. The agency mayappeal a decision by an EEOC administrative judge within 40 days of receiving the administrative judge'sdecision.

For more information concerning enforcement procedures for federal applicants and employees, visitthe EEOC website at http://www.eeoc.gov/facts/fsfed.html.

Endnotes

1 See http://www.eeoc.gov/eeoc/statistics/reports/diversitylaw/#intro.

2 See 42 U.S.C. §§ 12111(2) and (5), 12112(b)(5)(A); 29 C.F.R. §§ 1630.2(b), (d) and (e), 1630.9(a).Pursuant to Title II of the ADA, state and local government agencies with fewer than 15 employees mustfollow the same employment discrimination rules as found under Title I. 28 C.F.R. § 35.140(b)(2).

3 29 U.S.C. § 791(g); 29 C.F.R. § 1614.203(b). This document will use the term “ADA” to refer to boththe Americans with Disabilities Act and the Rehabilitation Act.

4 In 1999, the U.S. Equal Employment Opportunity Commission (EEOC) issued a comprehensiveEnforcement Guidance addressing many legal, policy, and practical concerns involving the “reasonableaccommodation” obligation. EEOC Enforcement Guidance on Reasonable Accommodation and UndueHardship Under the Americans with Disabilities Act (rev. Oct. 17, 2002) atwww.eeoc.gov/policy/docs/accommodation.html [hereinafter “Reasonable Accommodation”]. Readers whowant more specific information about the topics discussed in this Fact Sheet should consult the Guidance.

In addition to the Guidance, the EEOC has published documents on many other ADArelated subjects,including specific disabilities or types of disabilities (e.g., psychiatric disabilities, cancer, and diabetes) andthe rules regarding when employers may require applicants and employees to answer disabilityrelatedquestions and undergo medical examinations. The ADA, the implementing regulations and its appendix, andall of the EEOC’s ADArelated documents cited in this fact sheet (as well as others) can be found at EEOC’swebsite, www.eeoc.gov.

5 Under some circumstances, partners may be considered employees entitled to the protection of theemployment antidiscrimination laws. The position title is not determinative. Rather, whether a partner isconsidered an employee depends on the level of control the organization has over the partner. SeeClackamas v. Gastroenterology Assocs, P.C. v. Wells, 538 U.S. 440, 44851 (2003).

http://www.eeoc.gov/employees/charge.cfm

http://www.eeoc.gov/facts/fs-fed.html

http://www.eeoc.gov/eeoc/statistics/reports/diversitylaw/#intro

http://www.eeoc.gov/policy/docs/accommodation.html

http://www.eeoc.gov/

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[ Other endnotes omitted to save paper. Please see the original on the eeoc.gov website. ]

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Hows and Whys of Inclusion when Hiring People with Disabilities in the Legal Profession Carol Rozumalski with Jim Yocom

(c) Carol Rozumalski 2017

1

Overview How and why should we strive to make our work environments more inclusive for people with disability or

impairment? Inclusion has historically been justified on various grounds. Here I focus on an organization’s

self‐interest, sometimes called the “business case” for diversity and inclusion. This basic idea is that with

respect to disability or impairment, operating from an inclusive vantage point will help organizations find the

best job candidates, leverage their skills, enlarge their customer base, serve the public, and improve the

quality of their goods and services. This article discusses ways to implement an inclusive approach with

respect to hiring and retention.

The framework proposed here might be adapted to other forms of inclusion with respect to disability in the

legal profession, such as access to justice, formal and informal dispute resolution, and the defense of civil

rights defense. Some aspects of the framework might extend the inclusion of other groups, such as LGBTI

people or people of color. But I will maintain a laser‐like focus on disability and employment here. It is a good

starting point.

It is natural to approach inclusion in workplace environments by contrasting it with the tradition of risk

management. That tradition typically views disability primarily through the lens of legal and regulatory

compliance, the goal being to minimize exposure to undesirable legal actions from customers, employees,

and job candidates.

Risk‐management and inclusion are somewhat in tension with one another. But the approaches in many

ways are complementary. Neither is inherently superior nor sufficient. Risk management helps protect

organizations from unnecessary expenditures and also gives effect to the intent of the law, which typically

exists for good reasons. Laws and regulations around disability establish a baseline level of fairness and

justice. Though I will criticize some of risk management’s limitations in the context of hiring and

accommodations, nothing I say here is intended to deny its value nor suggest that it needs to be entirely

replaced.

The problem is that risk management alone is not enough. Hiring practices grounded in risk avoidance are

designed to navigate the employer through potentially dangerous terrain. Corporate collective risk‐

management reflexes have become strong and lightning fast in that respect. But the resulting heuristics help

employers avoid disasters (which might be remote possibilities) more than they improve the organization’s

efficiency, productivity, or services. Inclusion, in contrast, is less heuristic. It is motivated by the assumption

the employers seek to identify, hire, and retain the very best candidates for their organizations in order to

make the organization better off.

Risk management alone offers less help to employees or candidates than often imagined. Many candidates

are no doubt shielded from outright discrimination by laws like the ADA. But risk‐management heuristics do

not naturally create opportunities for candidates to put their best feet forward or to present themselves

authentically. Inclusion does better.

In short, risk management is not designed to support discerning selection or retention processes. Fair and

consistent hiring and formal accommodations that hew closely to a regulatory framework serves compliance



2

only and does not yield information needed to make good employment decisions. An inclusive approach to

hiring picks up where compliance leaves off. Inclusion makes people better stewards of their professions,

firms, and organizations. It does this in part by seeking and leveraging skills that people with disabilities

cultivate in their daily lives.

The business case for inclusion Organizations can benefit from an inclusion approach to disability and impairment in at least three ways.

First, candidates with disabilities bring skills and attributes to the organization that employers say they value.

Second, employees with disabilities provide enormous benefits to the workplace. Finally, inclusion improves

the employer’s services and grows the employer’s client base.

Skills and attributes Candidates in the workforce with disabilities often possess exceptional skills and attributes in areas that

employers say they value.1 Not all candidates, of course, but those engaging the workforce in a meaningful

way likely will often possess these skills and attributes to an extent.

Excellent organizational skills. People with disabilities typically must manage them. This requires excellent

problem forecasting, prioritizing competing demands, and stellar project management skills. For example, in

order to plan an ordinary trip to a coffee shop to meet a colleague, I must forecast and plan every detail of

transportation routes, travel times, bus schedules, cost, and location. I must anticipate how what I eat and

drink will affect my biological processes throughout the day. I must prepare exact change and order my

payment systems so that I do not fumble and drop money. I must manage my phone, keys, wallet, and critical

equipment perfectly, having everything in exactly the right order that I will need it throughout the day. What

many experience as an inconvenience from a run‐of‐the‐mill oversight can be life‐threatening to me.

Exceptional work product. Workers with disabilities tend to think deeply about the quality of their work

product. Part of this carries over from good project management skills. Part of this stems from cultural

prejudices about competency. People frequently anticipate that I will not be able to complete tasks, turning

most of my work product into a miniature test of my competencies. That means I spend an inordinate

amount of time thinking about the requirements of my work product and striving to get my contributions just

right. I know many people with disabilities who have cultivated perfectionist tendencies as a result of living

with a disability.

Problem‐solving skills. Having a disability creates a different mindset about facing problems. When

challenges appear, people with disabilities tend to engage and address them promptly, calmly, and

efficiently. Out of necessity I must regularly deal with barriers that arise associated with hygiene or nutrition,

which I cannot opt out of. I must overcome the challenges swiftly, without wasting time or resources on

1 We present an informal treatment of this issue. For a discussion of research on what employers want from employees and what they think people with disabilities have to offer,, see Ju, S., Zhang, D., & Pacha, J. (2012). Employability skills valued by employers as important for entry‐level employees with and without disabilities. Career Development for Exceptional Individuals, 35(1), 29‐38.



3

unnecessary process or drama. And I must often be creative. People look to me to propose viable solutions

and I am a master problem‐solver.

Leadership. People with disabilities are often quite effective at mobilizing others to engage in prompt and

efficient problem‐solving. That is leadership. They need to be emotionally present enough to communicate

needs concisely and clearly in the face of others’ stress, uncertainty, and confusion. They need to provide

clear instructions and manage others’ expectations and, often, anxiety and trepidation.

Character. Living with a disability requires patience, grit, courage, determination, optimism, and a cheerful

can‐do attitude. People stare at me. Make comments. Ask insulting questions. Treat me like I’m stupid. But I

must surmount barriers to meeting basic life needs without being cowed by negative attitudes or dragged

down by defeatism or moral outrage. I cannot function in my life by embracing a posture of frailty or

pessimism.

Grit, persistence, patience, teamwork, organizational skill, perspective, leadership, problem‐solving skills, and

excellent project management and standards for work product‐‐employers say they want these attributes in

their workers. But this is not what business‐as‐usual hiring, steeped in the risk‐management tradition,

facilitates. It is not what job advertisements communicate to potential employees and it is not what

interviewers invite candidates to demonstrate. Inclusion invites us to do more. We will look specifically at the

job interview and the job postings shortly. But first, let’s consider more ways that people with disabilities

benefit employers.

Benefits in the workplace Slippery‐slope thinking and risk avoidance abounds when it comes to managing people with disabilities once

they are in the workplace. But candidates with disabilities often improve the workplace in numerous ways.

General problem‐engagement with employees. Resolving disputes, responding to unexpected setbacks,

coping with personal crises‐‐workplace dramas are popular entertainment because so much life happens at

work. Employees need teamwork, perspective, and good problem‐solving. The skills that people with

disabilities master can carry over to the workforce more generally. The leadership and problem‐solving skills

that people with disabilities cultivate are tremendous assets in the workforce when it comes to general,

mundane problem‐solving.

Ushering in tomorrow’s workplace. Employers sometimes appear to say contradictory things. One one hand

they say they want to make their workplaces more efficient, technologically savvy, and convenient for

workers so that they can increase employee productivity. On the other hand, they express trepidation at the

possibility of an employee with a disability seeking an productivity‐enhancing accommodation. The fear?

Other employees will want the same technologies or accommodations. Facile slippery‐slope worries are

rooted in a risk‐management rationale and misses the big picture: Employers want to improve workplace

productivity.

Technological advances. Many technological advances that we now take for granted in modern workforces

originated as assistive devices for people with disabilities. James Shapiro’s book No Pity notes numerous



4

examples, such as the typewriter. For example, a former colleague of mine, who when completing his college

degree in the 1990s, used internet learning as a way to remediate barriers related to class campus location

and classroom learning. Internet and web‐based learning are now commonplace, but when he was in college,

it was an innovation he helped pioneer.

Efficiency advances. Employers often find that taken‐for‐granted routines obscure opportunities to improve

efficiency. Paper is stacked in accessible places that once relocated to a different shelf improves workroom

flow. Bigger, more visible stickers on the file folders reduce filing errors. I am constantly searching for ways to

reduce wasted energy and resources in my workplace. For example, one of my prior job functions required

photocopying documents for client files. The usual practice involved manually collating photocopies. Manual

collating documents is not a good use of my time, so I scanned and printed the document. Lo‐and‐behold, it

turned out that this was a far more efficient way for everyone to do the task.

As guides. People typically acquire their disabilities‐‐mobility limitations, chronic arthritis, carpal tunnel,

autoimmune diseases‐‐as natural consequences of aging. With the greying of the workforce, more and more

people will inevitably develop disabilities. Having people on staff with disabilities can ease the process and

mitigate anxieties and uncertainties. People in isolation might naturally tend to hide their impairments.

Having staff members who manage their disabilities openly and successfully can help transform fear into

empowerment.

Navigating accommodations formal and otherwise. People that must request accommodations on a regular

basis are masters at identifying and describing precisely what they need in order to be productive. Frequently

they have considerable experience navigating formal accommodations processes. (I know more about

accommodations processes than employers typically do, even with formal human resources departments.)

Having people with disabilities on staff can be useful for getting employees through that formal process. They

set precedents, of course, but they also help make the process easier, develop innovative solutions, and

transform a skeptical outlook or tense standoff into an optimistic and collaborative one. But the large

majority of “accommodations” that people need to be productive are not handled through formal process.

Much of what inclusion means in the context of your existing workforce boils down to its alacrity at engaging

informal accommodations. Having people with disabilities on staff who can help steward that process is quite

valuable.

In sum, on one hand, employers assert that they are hungry to identify pointless inefficiencies, eliminate

redundancies, usher in the workplace of the future, and supplant pointless, fraught process with streamlined

and collaborative process. But on the other hand, the risk‐management tradition fuels an attitude that the

most dreaded thing that an employee can do is seek to depart from established routines and, god forbid, ask

for a reasonable opportunity to do her job. Much of the fear comes from the inaccurate belief that most

accommodations requests are unfounded or inordinately expensive. The inclusion perspective invites you to

challenge that belief.

Client relations and organizational services Finally, hiring candidates with disabilities is good for business because it both improves your services and

grows your client base.



5

Client engagement

Many if not most attorneys as part of their paid and pro bono services directly work with clients or supervise

staff that do. Clients managing their own or someone else’s disabilities often benefit from having people with

disabilities in your workforce for a straightforward reason: Those employees often have the advantage of

having accumulated unique stocks of knowledge about families, benefits, medical matters, finances, housing,

and just about every other aspect of human life. Issue‐spotting in bankruptcy has a different spin because of

unique insights into medical expenditures and equipment; estimating tort damages has a unique flavor given

lived experience of human needs associated with an injury or condition; interacting with senior clients invites

considering the webs of dependencies that underlie their economic needs; employer‐ and employee‐side

representation both benefits from a deeper understanding of the stakes involved in various disputes.

But it’s not just clients with disabilities who might benefit. In my experience clients disclosing potentially

embarrassing or sensitive information tend to be more forthcoming and less defensive when talking to

someone with a clear physical disability. Employees with clear physical disabilities can have an

approachability factor that arises from appearing to have overcome barriers to their perceived competency

or a social system that can seem rigged against them. People spend less time legitimizing their struggles and

more time describing and disclosing relevant information. For example, someone might be more willing to

disclose about non‐traditional work or housing arrangements when talking to an employee with an

observable physical disability.

More clients

What firm doesn’t want good, paying clients? A worry that a firm will not be equipped to deal with the

unique needs presented by their disabilities invariably causes some clients‐‐even with resources to spare‐‐to

self‐select out of the market for legal services. Employees with disabilities on staff can be helpful at getting

clients in the door for a couple of reasons. Many clients choose their service providers based on a sense of

the organization’s confidence and experience handling issues that are, in the client’s eyes, unique. Those

potential customers seek out service providers that appear to have facility with non‐standard templates on

the belief that the firm will value the client’s business and engage her situation with alacrity. Demographic

diversity in general‐‐LGBTQI, people of color, people with disabilities‐‐can signal to potential clients a degree

of sophistication that other providers do not have. For example, once when refinancing my mortgage, I

specifically sought out an LGBT‐friendly mortgage broker because their publicly communicated commitment

to LGBT issues communicated to me that they have comfort and skill in dealing with “non‐standard”

templates. I had no idea whether my personal situation called for a non‐standard analysis; in retrospect, it

appears to have been a run‐of‐the‐mill mortgage application. But I wanted an employer who looked like they

were prepared to handle something a little different.

Better services

Clients suspicions along those lines, not surprisingly, are often correct. You’ll be hard pressed to find workers

more capable of quickly and comprehensively grasping complex systems of interdepencies than those

managing disabilities. As mentioned above, employers serving the public typically need to understand the

threads of dependencies that permit someone to live in a home, obtain health care, and maintain gainful



6

employment. Staff with disabilities that engage these customers can draw on stocks of personal experiences

to diagnose and mitigate risks that able‐bodied people simply never think about.

Sometimes of course having staff with disabilities simply sensitizes other staff to issues around disability so

that they are less likely to scare or turn‐off potential clients. Though it’s true that you want to avoid slurs and

negligent insults, the rationale for doing so frequently gets stuck at the rationale of avoiding hurt feelings,

anger, or potential lawsuits. That is a risk‐avoidance mentality. What I am suggesting instead is to appreciate

that workers with disabilities naturally increase workers’ sophistication with respect to respectful language

use. A sophisticated staff signals to potential clients that you are not merely a safe space, but that you are

genuinely capable of meeting their needs. A rationale for smart language choice is superior customer service,

clear and simple.

In sum, your clients are shopping for people who understand their situation and who have realistic

appreciations of what it means to operate with particular, non‐negotiable needs.

Initial contact: Job postings, websites, applications, and interview invitations Of course not all employees with disabilities will have all of the skills and attributes discussed above. But

many do to various degrees. In attracting people with some or all of these skillsets, you want to signal that

those job candidates (1) will have the opportunity to strut their stuff in the application process and (2) that

your firm or organization has a degree of competence around disability that will enable them to thrive. We

will consider the job interview in the next section, but let’s consider here the job posting, website, and other

points of first contact with your organization.

The job posting An inordinate number of job postings are full of dense, public‐relations fluff. People with disabilities need

specific information, not empty pabulum.

Pay and benefits. I need to know whether I can actually live with the job. People with disabilities typically

require specific levels of compensation and specific benefits. For example, it is not uncommon to read legal

postings that cite to wanting “team players” or people who can endure a “fast‐pace environment.” This is

vague and does not communicate what I need to know, which is whether the salary and benefits will satisfy

my essential living requirements. The risk‐management approach leads employers to worry that publishing

pay ranges will lead to perceived promises. The usual recommendation is therefore to say that salary is

commensurate with experience.

Job description. Enormous mischief resides in descriptions of the job itself, which too often omit critical

information and yet contain specific information for the sole purpose of deterring people with disabilities to

apply. I’ve mentioned the vagueness of public‐relations fluff. People with disabilities need to know detail like:

How many job sites are there? Where are they located?

Aside from day‐to‐day work, what unusual or periodic events will be required?

Where is the nearest public transportation? Does the job include a transportation benefit?

Is the surrounding area walkable and safe?



7

It is a deeply ‐embedded ritual that employers must state that lifting a certain amount of equipment. But

consider: in the past week, how many of you have lifted 30 pounds of office equipment in your work

environment? In the past month? In the past year? How many of you operate in an office environment in

which no one but you can lift 30 pounds of office equipment? Is this really an essential job function? Raise

your hand if you applied for a job that was advertised as requiring a driver’s license and then never actually

drove a car for the job?

On the other hand, few job postings cite to the attributes discussed above‐‐problem‐solving, project‐

management, patience, persistence, experience navigating administrative regulations. There is a disconnect

between what employers assert they value in general and what they are asserting they want in a job

announcement.

Inclusion and non‐discrimination policies. It is standard practice to include non‐discrimination statements on

job postings. Many of these are written in stale, mechanical language that reads as if it was added only

grudgingly. Other statements are warmer and, if they don’t use modern language, at least avoid undesirable

language. Here are two statements from attorney positions posted on the OSB website in late 2016:

Example 1. Firm believes that every employee has the right to work in surroundings that are free from all

forms of unlawful discrimination. It is Firm’s policy to hire, promote, transfer, terminate, and make all other

employment‐related decisions without regard to an employee's race, color, sex, religion, age, national origin,

handicap, sexual orientation, gender identity or any other basis prohibited by applicable local, state, or

federal law.

Example 2. Firm is an equal opportunity employer. We welcome all applicants and strive to provide a

workplace in which all employees feel included, respected, and valued.

Notice the strained feel of the first example. The expressed aim is to communicate that the firm will not

engage in legally prohibited discrimination. The paragraph reeks of risk‐avoidance. Note also the use of the

word “handicap.” That passé language indicates that no one in the hiring process thinks deeply about issues

involving disability or impairment. The first example is full of warning signs for someone with a disability.

The second paragraph is much briefer but communicates much more. The goal is not to avoid lawsuits but

rather to communicate the workplace’s values. People with disabilities will likely be drawn to the second

statement.

Website The first thing people do after reading a job description is visit the firm or organization’s website. Most

corporate and legal websites are deficient when it comes to providing information valued by people with

disabilities.

Accessibility. Websites can be differentiated by the extent to which they comply with established internet

accessibility guidelines. The technologies section of the Oregon State Bar reviewed some of that material in a

November 2016 CLE in light of a spate of recent legal actions against major corporations for not having

website accessible by people with visual impairments. The Web Content Accessibility Guidelines (WCAG) are



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internationally developed criteria for designing websites accessible to screen readers and other technology.2

It is the firm’s responsibility to choose web developers with expertise designing websites that comply with

these guidelines. You must do this with intention; garden‐variety web designers frequently have no idea that

those standards exist or how to implement them. Add the accessibility guidelines and testing to your web

development agreement and shop wisely. I can suggest recommendations.

Descriptions of the space. One of the biggest deficiencies in most organizations’ websites is the absence of

meaningful descriptions of the space and how to access it. People with disabilities often will use public

transportation to find your building. Where is the nearest bus stop? Where are the accessible entrances? Are

door signs legible and easy to read? Is directory information in braille? Photographs on the website of

entrances, elevators, office exteriors can be helpful. One important piece of information that rarely makes it

onto websites is the availability of a restroom for client or visitor use. If one is available, you should specify

whether it is wheelchair accessible and also identify which side of the toilet the grab bars are located. (People

who use one arm need to know this.) Note that most large, chain coffee shops typically have adequate

restroom facilities and it helps to locate the nearest one. If you do not want to include all of this detail on the

website, have it ready on as a voice‐reader‐friendly PDF and include a link on the website to the effect that

people can get detailed accessibility information by clicking or emailing the organization.

Language. People with disabilities often will scrutinize the language on a website for indicators of baseline

competency. (This is also true of language on applications and your other communications.) Some language is

considered outmoded and indicates the lack of an inclusive sensibility in an organization. (I’ll have some

specifics, below.)

Demographic diversity. I’ve been “the first” on many occasions but it is not a role I relish. Being able to see a

firm that has some observable diversity among its employees shows me the firm has some personnel skills

that can be transferable to handling disability issues. People are not stupid‐‐they can recognize stock

photography. Juxtaposed to a canned non‐discrimination statement and in a vacuum of information that

helps me access your services, a shallow, inauthentic expression of demographic diversity reeks of pandering.

The message is that the employer in some sense knows that they have blind spots but simply don’t care.

Applications This is the first opportunity for a person with a disability to “come out.” The application is an opportunity to

invite people to put themselves in the best possible light. You cannot ask questions about disabilities, medical

treatment, medications, addictions, or the amount of sick leave taken in the last job. But you can create a

more inviting job application. For example, people with disabilities are more likely to have periods of self‐

employment. But few job applications acknowledge that employees might have been self‐employed. So

directly solicit skills and attributes that people might have mastered while self‐employed.

Invitation to interview The next step is the interview invitation. Many organizations can improve how they approach these

invitations. An inclusive mindset invites candidates to strut their stuff. The goal is to provide information to

2 https://en.wikipedia.org/wiki/Web_Content_Accessibility_Guidelines



9

help all candidates put their best foot forward. This means describing to the candidate what the interview

will entail so that they can plan for their needs and ask for further information they might need. Certain

details should be provided as a matter of course to all candidates.

Duration. Knowing the duration of the interview is important in order to manage medication and bathroom

needs. I know of someone with diabetes who did poorly in an interview because the length of the

appointment was longer than expected and he went too long without eating. He felt the quality of his

interview declined because his blood sugar level dropped and he lost focus. As a result, his performance did

not represent his typically high work standards.

Multiple locations. Use multiple interview locations if truly necessary, but inform the interviewee in advance

of how many locations and roughly how much travel will be involved. Multiple locations require candidates

to use energy getting around, which can be draining for someone with a mobility‐related disability. Energy

used for mobility is energy not used in actual interview exchanges. A friend told me about a job interview she

had at a university that took all day at offices scattered all over the campus. One part even included going to

a nearby coffee shop. I remember thinking I would have had logistical problems had I been the one

interviewing.

Testing. Interviewing activities such as testing should be communicated in advance, especially if tests are

timed. I don’t write or type quickly because I use one hand. Some people with mental health disabilities

might need to take proactive steps to manage symptoms such as anxiety. The employer should be able to

explain what equipment will be used. For example, I once interviewed at a senior services call center and was

nervous about needing to ask for a headset to do the interviews over the phone. Deep down I worried that

they would not be familiar with their technology.

Interview questions. It is uncommon for employers to provide interview questions in advance. Perhaps

employers worry that candidates will sound so polished that employers will not be able to choose among

them. Or they imagine that their questions will leak and they will face a deluge of candidates acing their

interviews. Or perhaps they view impromptu responses as data for assessing verbal skills, problem‐solving

acumen, or reasoning ability. Empirical research on the usefulness of interviewing, particularly unstructured

job interviewing, is at best is conflicted,3 and employers perhaps irrationally prefer them to objective

measures.4 Employers should weigh the costs and benefits of providing at least some interview questions in

advance. From the vantage point of inclusion, this permits candidates to spend time reflecting on how their

3 Macan, T. (2009). The employment interview: A review of current studies and directions for future research. Human Resource Management Review, 19(3), 203‐218; McDaniel, M. A., Whetzel, D. L., Schmidt, F. L., & Maurer, S. D. (1994). The validity of employment interviews: A comprehensive review and meta‐analysis. Journal of applied psychology, 79(4), 599‐616. Some researchers are decidedly more cynical. See, e.g., Sunstein, C.R. Job Interviews Are Useless. Nov. 4, 2016. Bloomberg, available at https://www.bloomberg.com/view/articles/2016‐11‐04/job‐interviews‐are‐useless

4 Highhouse, S. (2008). Stubborn reliance on intuition and subjectivity in employee selection. Industrial and Organizational Psychology, 1(3), 333‐342.



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personal experiences speak to workplace issues and transform surface‐level weaknesses into demonstrations

of strength and competence.

Providing good information about the interview itself increases inclusion in‐and‐of‐itself. Even if the

information does not suffice for particular candidates, they are more likely to ask for more adequate and

more specific accommodations if they don’t have to guess what the interview will be like.

The job interview Many physical disabilities will first become apparent when the candidate arrives for the job interview. The

ADA, of course, limits how you collect information by disallowing certain kinds of questions. Many of the aims

of inclusion, however, are met by being ready to provide information on request. Appearing ready to provide

exactly the information requested goes along way to signaling an inclusive work environment.

Structure of the interview. Long interviews should have and an agenda that includes breaks, which might be

needed for self‐care. Using the bathroom might take longer for people with sensory and mobility disabilities,

particularly as they navigate a new space.

Describe the job. If not clear from the job advertisement or pre‐interview materials, the job should be

described clearly. Too many organizations structure interviews only with high‐level managers or owners who

are distant from the minutia of day‐to‐day operations proceed. Candidates can only assess their abilities to

do the job and whether they will need to request reasonable accommodations if they know the fundamentals

of how the job is to be done. Specifics matter. What software is used? Do the job sites have accessible

entrances and public transportation options? Are office fixtures static or can they be moved around? Do

workers sit in a bullpen or will employees have dedicated office space? What are the salary and detailed

benefits?

Criteria for evaluation and promotion. A sore spot for many people with disabilities is having career ladders

evaporate. Employers that rely on vague, ad hoc criteria for determining employee advancement can fuel

considerable frustration and resentment among employees with disabilities. Deeply ingrained stereotypes

lead employers to view candidates with disabilities as good at specific, circumscribed tasks and not masters

of more general skillsets that facilitate career advancement. So‐and‐so becomes oh‐so‐amazing at this entry‐

level job because isn’t‐it‐amazing that someone with a disability can do it. The result is that too many

employees with disabilities become confined to jobs that have no potential for growth. Clearly defined

criteria for job excellence and within‐firm job mobility are an antidote. People with disabilities often want to

see that employers acknowledge and value their contributions of creativity and problem‐solving, as well as

their constant efforts to maximize productivity in light of barriers that necessarily arise from time to time.

Prior history questions. It is common for employers to inquire about work histories. Due to barriers they

have encountered and other circumstances, people with disabilities are more likely to have had periods‐‐

perhaps long periods‐‐of self‐employment. An inclusion vantage points invites employers to focus on a

candidate’s ability to successfully operate in a self‐employment context (drive, persistence, focus) and not

take self‐employment as a sign of inability to function in a traditional organizational environment. Ask

questions that invite candidates to highlight those accomplishments. Similarly, temporary leave or abrupt

transitions might be due to changes in the nature of the disability and have no bearing whatsoever on their



11

ability to do the job. Employers should focus on the valuable skills needed to manage job‐related turbulence‐‐

organizational skill, persistence, focus, multi‐tasking, mastering remote working practices, which employers

increasingly want employees to be able to do.

Candidates evaluate the space. An interview is a setting of mutual first impressions and the first impressions

I perceive as a person with a disability are environmental. Specific examples are egresses for doorways and

elevator buttons, having enough room to drive my wheelchair without encountering barriers or having to use

alternate routes, and (literally and figuratively) having a place at the table.

Candidates evaluate how the employer responds to barriers. Making an effort to remediate common

barriers signals inclusion and a willingness to engage. For example, knowing I am a wheelchair user, can the

employer make small, courteous adjustments? Few candidates expect perfection, but small signs of courtesy

signal applied understanding and receptiveness to engaging in reasonable accommodations. If alternate

access routes are needed, someone needs to communicate them or lead the way. Most interviews will take

place in a meeting room of some sort. Ask the candidate what would work best for them.

Candidates will evaluate the employer’s use of language. As with the job posting, website, and other

communications, the candidate will scrutinize the employer’s language. This is less a hunt for politically

correct “gotchas” than it is a screening process for suitability. The candidate needs reassurance not simply

that the employer is non‐discriminatory or a “safe space.” The candidate looks for signs about the ease of

getting the employer’s cheerful cooperation in making the employee productive and successful. Language is a

powerful clue. Some language of course is tantamount to slurs. But more subtle warning signs that an

employer is not plugged in include loose usage of terms associated with cognitive and emotional disorders,

such as “crazy,” “lunatic,” “bipolar,” “insane,” “deranged,” “spastic,” “psycho,” or “manic.” I, as a person with

a physical disability, worry when I hear terms like this in an interview to describe the work environment. The

principle again is differentiation: Those terms thrive in the work environments of hostile or deeply clueless

employers describing people with real disabilities. Some language is simply outmoded or unflattering, such as

“able‐bodied,” “handicapped,” and “birth defect,” or saying that people “suffer from” or are “victims of” or

“afflicted by” some condition or other. Even language that is not intentionally insulting can make current or

potential employees feel like they can’t be completely “out” with their disabilities. Successful employers

don’t want employees to operate from a position of isolation or defensiveness. Plenty of style guides are out

there to help steer people towards modern language choices.5

Information about the accommodations policy and procedure. If the candidate raises the issue, then

employers should be able to provide information about their accommodations process at the interview stage.

When people with disabilities share horror stories about their employers, those stories disproportionately

involve accommodations requests gone wrong. Here are some things a candidate with a disability might

inquire about:

5 E.g., http://ncdj.org/style‐guide/; https://en.wikipedia.org/wiki/List_of_disability‐related_terms_with_negative_connotations.



12

Your track record. If a sizeable firm or organization, can you describe your accommodation policy and

process? Can you provide examples of success? Would your employees with disabilities agree? Only

providing examples of accommodations that are architectural or environmental in nature is a red flag

because these changes don’t impact job tasks.

Common‐goal accommodations processes. An inclusive workplace typically has a common‐goal

accommodations process instead of a mechanical or menu‐based system. The latter systems often start with

having to prove a need. For example, if I ask for a space heater to warm my feet, an employer might require

that I demonstrate that using a blanket is insufficient. Proving it can be so onerous and hostile that people

will either suffer or be insubordinate. The risk‐management tradition speculates doomsday scenarios from

providing accommodations post‐offer. They worry it will be a trend‐setter. This is slippery‐slope reasoning

that demands a countervailing inclusion analysis. What is the value of not having a productive employee?

Conclusion Organizations need to manage risks, including hiring risks. But business‐as‐usual hiring practices‐‐with

boilerplate diversity paragraphs and icy “please call for accommodations requests” sentences‐‐do not do

enough to match good people with good jobs. They slavishly hew to avoiding risks that might be remote.

Inclusion, as I’ve presented it here, is an alternative way of thinking about disability in the workplace. The

spirit is actively to take steps to uncover people’s strengths and to create opportunities for them to do so.

With respect to disability, inclusion pivots on doing more to recognize the strengths that people with

disabilities have and the benefits they can bring to the workplace. The goal is to set people up for success,

not to shun them out of fear. I have tried to point to many brass‐tacks things organizations can do to

incorporate an inclusive point of view, but there is much I have omitted and much more than remains to be

discovered. I am always happy to engage with organizations with their innovation and problem‐solving

efforts.

4/27/2017 The ADA: Questions and Answers

https://www1.eeoc.gov//eeoc/publications/adaqa1.cfm?renderforprint=1 1/3

Notice Concerning TheAmericans With DisabilitiesAct Amendments Act Of

2008

The Americans with DisabilitiesAct (ADA) Amendments Act of2008 was signed into law onSeptember 25, 2008 andbecomes effective January 1,2009. Because this law makesseveral significant changes,including changes to thedefinition of the term "disability,"the EEOC will be evaluating theimpact of these changes on thisdocument and otherpublications. See the list ofspecific changes to the ADAmade by the ADA AmendmentsAct.

U.S. Equal Employment Opportunity Commission

The ADA: Questions and Answers

EmploymentQ. What employers are covered by the ADA, and when is the coverageeffective?

A. The employment provisions of title I of the ADA apply to privateemployers, State and local governments, employment agencies, and laborunions. Employers with 25 or more employees were covered starting July26, 1992, when title I went into effect. Employers with 15 or more employeeswere covered two years later, beginning July 26, 1994.In addition, the employment practices of State and local governments of anysize are covered by title II of the ADA, which goes into effect on January 26,1992. The standards to be used under title II for determining whetheremployment discrimination has occurred depend on whether the publicentity at issue is also covered by title I. Beginning July 26, 1992, if the publicentity is covered by title I, then title I standards will apply. If not, thestandards of section 504 of the Rehabilitation Act will apply. From January26, 1992, when title II went into effect, until July 26, 1992, when title I wentinto effect, public entities were subject to the section 504 standards.

Q. What practices and activities are covered by the employmentnondiscrimination requirements?

A. The ADA prohibits discrimination in all employment practices, includingjob application procedures, hiring, firing, advancement, compensation, training, and other terms, conditions, andprivileges of employment. It applies to recruitment, advertising, tenure, layoff, leave, fringe benefits, and all otheremploymentrelated activities.

Q. Who is protected against employment discrimination?A. Employment discrimination is prohibited against "qualified individuals with disabilities." Persons discriminatedagainst because they have a known association or relationship with a disabled individual also are protected. TheADA defines an "individual with a disability" as a person who has a physical or mental impairment that substantiallylimits one or more major life activities, has a record of such an impairment, or is regarded as having such animpairment.The first part of the definition makes clear that the ADA applies to persons who have substantial, as distinct fromminor, impairments, and that these must be impairments that limit major life activities such as seeing, hearing,speaking, walking, breathing, performing manual tasks, learning, caring for oneself, and working. An individual withepilepsy, paralysis, a substantial hearing or visual impairment, mental retardation, or a learning disability would becovered, but an individual with a minor, nonchronic condition of short duration, such as a sprain, infection, or brokenlimb, generally would not be covered.

The second part of the definition would include, for example, a person with a history of cancer that is currently inremission or a person with a history of mental illness.

The third part of the definition protects individuals who are regarded and treated as though they have a substantiallylimiting disability, even though they may not have such an impairment. For example, this provision would protect aseverely disfigured qualified individual from being denied employment because an employer feared the "negativereactions" of others.

Q. Who is a "qualified individual with a disability?"A. A qualified individual with a disability is a person who meets legitimate skill, experience, education, or otherrequirements of an employment position that he or she holds or seeks, and who can perform the "essentialfunctions" of the position with or without reasonable accommodation. Requiring the ability to perform "essential"functions assures that an individual will not be considered unqualified simply because of inability to performmarginal or incidental job functions. If the individual is qualified to perform essential job functions except forlimitations caused by a disability, the employer must consider whether the individual could perform these functionswith a reasonable accommodation. If a written job description has been prepared in advance of advertising orinterviewing applicants for a job, this will be considered as evidence, although not necessarily conclusive evidence,of the essential functions of the job.

https://www1.eeoc.gov/laws/statutes/adaaa_notice.cfm

https://www.eeoc.gov/laws/statutes/ada.cfm



Q. Does an employer have to give preference to a qualified applicant with a disability over other applicants?A. No. An employer is free to select the most qualified applicant available and to make decisions based on reasonsunrelated to the existence or consequence of a disability. For example, if two persons apply for a job opening as atypist, one a person with a disability who accurately types 50 words per minute, the other a person without adisability who accurately types 75 words per minute, the employer may hire the applicant with the higher typingspeed, if typing speed is needed for successful performance of the job.

Q. What is "reasonable accommodation?"A. Reasonable accommodation is a modification or an adjustment to a job or the work environment that will enablea qualified applicant or employee with a disability to participate in the application process or to perform essentialjob functions. Reasonable accommodation also includes adjustments to assure that a qualified individual with adisability has rights and privileges in employment equal to those of nondisabled employees.

Q. What kinds of actions are required to reasonably accommodate applicants and employees?A. Examples of reasonable accommodation include making existing facilities used by employees readily accessibleto and usable by an individual with a disability; restructuring a job; modifying work schedules; acquiring ormodifying equipment; providing qualified readers or interpreters; or appropriately modifying examinations, training,or other programs. Reasonable accommodation also may include reassigning a current employee to a vacantposition for which the individual is qualified, if the person becomes disabled and is unable to do the original job.However, there is no obligation to find a position for an applicant who is not qualified for the position sought.Employers are not required to lower quality or quantity standards in order to make an accommodation, nor are theyobligated to provide personal use items such as glasses or hearing aids.The decision as to the appropriate accommodation must be based on the particular facts of each case. In selectingthe particular type of reasonable accommodation to provide, the principal test is that of effectiveness, i.e., whetherthe accommodation will enable the person with a disability to do the job in question.

Q. Must employers be familiar with the many diverse types of disabilities to know whether or how to make areasonable accommodation?

A. No. An employer is required to accommodate only a "known" disability of a qualified applicant or employee. Therequirement generally will be triggered by a request from an individual with a disability, who frequently can suggestan appropriate accommodation. Accommodations must be made on an individual basis, because the nature andextent of a disabling condition and the requirements of the job will vary in each case. If the individual does notrequest an accommodation, the employer is not obligated to provide one. If a disabled person requests, but cannotsuggest, an appropriate accommodation, the employer and the individual should work together to identify one.There are also many public and private resources that can provide assistance without cost.

Q. What are the limitations on the obligation to make a reasonable accommodation?A. The disabled individual requiring the accommodation must be otherwise qualified, and the disability must beknown to the employer. In addition, an employer is not required to make an accommodation if it would impose an"undue hardship" on the operation of the employer's business. "Undue hardship" is defined as "an action requiringsignificant difficulty or expense" when considered in light of a number of factors. These factors include the natureand cost of the accommodation in relation to the size, resources, nature, and structure of the employer's operation.Where the facility making the accommodation is part of a larger entity, the structure and overall resources of thelarger organization would be considered, as well as the financial and administrative relationship of the facility to thelarger organization. In general, a larger employer would be expected to make accommodations requiring greatereffort or expense than would be required of a smaller employer.

Q. Must an employer modify existing facilities to make them accessible?A. An employer may be required to modify facilities to enable an individual to perform essential job functions and tohave equal opportunity to participate in other employmentrelated activities. For example, if an employee lounge islocated in a place inaccessible to a person using a wheelchair, the lounge might be modified or relocated, orcomparable facilities might be provided in a location that would enable the individual to take a break with coworkers.

Q. May an employer inquire as to whether a prospective employee is disabled?A. An employer may not make a preemployment inquiry on an application form or in an interview as to whether, orto what extent, an individual is disabled. The employer may ask a job applicant whether he or she can performparticular job functions. If the applicant has a disability known to the employer, the employer may ask how he or shecan perform job functions that the employer considers difficult or impossible to perform because of the disability, andwhether an accommodation would be needed. A job offer may be conditioned on the results of a medicalexamination, provided that the examination is required for all entering employees in the same job categoryregardless of disability, and that information obtained is handled according to confidentiality requirements specifiedin the Act. After an employee enters on duty, all medical examinations and inquiries must be job related andnecessary for the conduct of the employer's business. These provisions of the law are intended to prevent theemployer from basing hiring and employment decisions on unfounded assumptions about the effects of a disability.

Q. Does the ADA take safety issues into account?A. Yes. The ADA expressly permits employers to establish qualification standards that will exclude individuals whopose a direct threat i.e., a significant risk of substantial harm to the health or safety of the individual or of others,if that risk cannot be lowered to an acceptable level by reasonable accommodation. However, an employer may notsimply assume that a threat exists; the employer must establish through objective, medically supportable methodsthat there is genuine risk that substantial harm could occur in the workplace. By requiring employers to makeindividualized judgments based on reliable medical or other objective evidence rather than on generalizations,ignorance, fear, patronizing attitudes, or stereotypes, the ADA recognizes the need to balance the interests ofpeople with disabilities against the legitimate interests of employers in maintaining a safe workplace.



Q. Can an employer refuse to hire an applicant or fire a current employee who is illegally using drugs?A. Yes. Individuals who currently engage in the illegal use of drugs are specifically excluded from the definition of a"qualified individual with a disability" protected by the ADA when an action is taken on the basis of their drug use.

Q. Is testing for illegal drugs permissible under the ADA?A. Yes. A test for illegal drugs is not considered a medical examination under the ADA; therefore, employers mayconduct such testing of applicants or employees and make employment decisions based on the results. The ADAdoes not encourage, prohibit, or authorize drug tests.

Q. Are people with AIDS covered by the ADA?A. Yes. The legislative history indicates that Congress intended the ADA to protect persons with AIDS and HIVdisease from discrimination.

Q. How does the ADA recognize public health concerns?A. No provision in the ADA is intended to supplant the role of public health authorities in protecting the communityfrom legitimate health threats. The ADA recognizes the need to strike a balance between the right of a disabledperson to be free from discrimination based on unfounded fear and the right of the public to be protected.

Q. What is discrimination based on "relationship or association?"A. The ADA prohibits discrimination based on relationship or association in order to protect individuals from actionsbased on unfounded assumptions that their relationship to a person with a disability would affect their jobperformance, and from actions caused by bias or misinformation concerning certain disabilities. For example, thisprovision would protect a person with a disabled spouse from being denied employment because of an employer'sunfounded assumption that the applicant would use excessive leave to care for the spouse. It also would protect anindividual who does volunteer work for people with AIDS from a discriminatory employment action motivated by thatrelationship or association.

Q. Will the ADA increase litigation burdens on employers?A. Some litigation is inevitable. However, employers who use the period prior to the effective date of employmentcoverage to adjust their policies and practices to conform to ADA requirements will be much less likely to haveserious litigation concerns. In drafting the ADA, Congress relied heavily on the language of the Rehabilitation Act of1973 and its implementing regulations. There is already an extensive body of law interpreting the requirements ofthat Act to which employers can turn for guidance on their ADA obligations. The Equal Employment OpportunityCommission, which has issued regulations implementing the ADA's title I employment provisions, published atechnical assistance manual with guidance on how to comply and will provide other assistance to help employersmeet ADA requirements. Equal employment opportunity for people with disabilities will be achieved most quicklyand effectively through widespread voluntary compliance with the law, rather than through reliance on litigation toenforce compliance.

Q. How are the employment provisions enforced?A. The employment provisions of title I of the ADA are enforced under the same procedures applicable to race, sex,national origin, and religious discrimination under title VII of the Civil Rights Act of 1964. Complaints regardingactions that occur on or after July 26, 1992, may be filed with the Equal Employment Opportunity Commission ordesignated State human rights agencies. Remedies may include hiring, reinstatement, back pay, court orders tostop discrimination, and reasonable accommodation. Compensatory damages may be awarded for actual monetarylosses and for future monetary losses, mental anguish, and inconvenience. Punitive damages may be available aswell, if an employer acts with malice or reckless indifference. Attorney's fees may also be awarded.

Examples of Universal Design in the Workplace

Environmental – Accessible entrances with power doors; adequate workplace lighting; elimination of barriers in hallways and paths of travel. Having filing cabinets easily reachable when possible. Controls and Tools – Accessible elevator controls, light switches, easy-to-grip handles. Workstation and Storage - adjustable chairs and workstations (ergonomic furniture); organizers and file folder storage on the desktop. Availability of lowered counters for customer service positions, or desks which may be raised or lowered as an employee sits or stands. Computers - accessibility features in operating systems used, such as text-to-speech and captioning capabilities. Communications - volume controls on telecommunication equipment; accessible, high contrast signage; alternate formats (large print, electronic files). Safety - multi-sensory alarm signals (auditory, visual); emergency and safety equipment clearly identified; evacuation plan considers the needs of individuals with disabilities.

Policies – employee assistance programs, paid sick leave (explicitly including mental health leave), flexible hours, support for working from home when possible, pre-planned list of acceptable employee accommodations. Transportation – Locating office near public transit when possible; having accessible parking spaces near office, providing free public transit passes; employer-sponsored RideShare programs.

(Partially taken and modified from: Northwest ADA Center, http://nwadacenter.org/factsheet/universal-design-workplace)

A Few Major ADA Discrimination Cases and Universal Design Solutions

E.E.O.C. v. Wal-Mart Stores, Inc., 187 F.3d 1241 (10th Cir. 1999) Facts: Store was aware that a deaf employee would require an ASL interpreter or captioning when attending trainings. Store failed to provide either option during a training that required viewing a video tape. Instead, the store offered to have a non-ASL certified co-worker “finger spell” for him. After refusing to attend the training, employee was involuntarily transferred to a position he viewed as a demotion. He refused the transfer and was terminated. Result: Employee received compensatory damages, attorney’s fees, and punitive damages totaling $119,000. Under the ADA…: Award of punitive damages only upheld because employee was able to show intentional discrimination and reckless indifference. Here, employer was aware of need for accommodation, failed to provide the accommodation, and subsequently terminated the employee. It was also found to have provided inadequate ADA training to managers. Under Universal Design: 1) All trainings should be universally accessible to the extent technologically possible. This could include captioning all videos and providing audio versions of written content. 2) Employers should have a clear plan in place for providing additional accommodation-related services, such as ASL interpreters, when needed. This plan should exist regardless of whether any employees with a given disability currently exist; rather, the employer should be prepared in advance. 3) Existing training plans should be reviewed and examined for potential issues with accessibility prior to an issue arising. E.E.O.C. v. Convergys Customer Mgmt. Grp., Inc., 491 F.3d 790 (8th Cir. 2007) Facts: Employer had a strict attendance policy which was violated each time an employee clocked in or came back from lunch three minutes late. For plaintiff, a wheelchair user, this occurred 65 times in one year. Reasons included a lack of adequate ADA parking at the worksite and a “maze-like” cubicle farm of a workplace without assigned seating, meaning that the employee had to change cubicles upon return for lunch. The employer refused requested accommodations of additional “grace period” time for arrival and lunch, and refused to assign employee to a regular cubicle. He was terminated. Result: Employer was found liable and plaintiff received $14K in lost wages and $100K in compensatory damages. This was upheld on appeal. Under the ADA: Employer allegedly that employee was required to request “specific” accommodations and that he failed to so. Here, the court found that the employer failed to explore specific accommodations after a general accommodation was requested. Additionally, the court found that a request for 15 minutes of additional time for lunch would have been a reasonable accommodation.

Under Universal Design: 1) Employers should ensure an adequate amount of ADA parking at a worksite. Employers should also locate in areas accessible by public transit when possible. 2) Office design should implement clear paths and accessibility for all employees. Hallways should be wide enough to accommodate electric wheelchairs, and clear of obstructions which would limit this width. 3) In “open seating” offices, a procedure should be in place to assign permanent seating to employees when needed due to a disability or other concerns. Employers may ask all employees if permanent seating will be needed for any reason (following a job offer), and employers can designate an accessible part of an office for this purpose. 4) Flexible scheduling should be offered to all employees whenever possible. For time-sensitive positions in which flexible scheduling is not possible, employers should implement non-punitive measures for tardiness. For example, employers should brainstorm potential ways to reduce tardiness with employees after it becomes an issue and before punitive measures are taken. If the cause appears to be related to any legitimate reason (disability, children), then employers should offer additional time for lunch or a schedule modification. E.E.O.C. v. Echostar Commc'ns Corp., No. 02-CV-0581-RPM-BNB, 2005 WL 2492905 (D. Colo. Sept. 8, 2005) Facts: Blind individual applied for a job as a customer representative in person and was told immediately the company could not accommodate his disability. Applicant informed employer of adaptive technology that would enable him to perform the essential functions of the position. He did not hear back, and filed an EEOC complaint. He was then allowed to apply using both a computer test and braille test. He was not provided adaptive technology for the computer test, and he was not proficient in braille. However, he was informed he passed both tests, but that he would not be hired because his reading skills were too slow. Result: Jury awarded $8 million in punitive damages and found for the plaintiff on all counts. In a subsequent consent decree, this was reduced to $450,000 and guarantees that employer would adopt procedures to provide reasonable accommodations, and eventually adopt text-to-speech software for usage with its customer service positions. Under the ADA: Employer initially stated a facial refusal to hire applicant because of his disability, stating he would not be able to perform the essential functions of the job. The applicant was required to explain the adaptive technology that could allow him to perform the job, as well as take the tests needed for the application. Here, he met his burden of doing so. Under Universal Design: Companies can 1) Ensure that adaptive technology is pre-emptively evaluated and utilized to make positions accessible to the widest number of applicants possible. For example, ensure company software is compatible with text-to-speech technology. 2) Explain the requirements of a position to all applicants in detail without making assumptions about whether they’ll be able to perform the job. 3) Have an application process where accessible features are built-in and immediately available and obvious to all applicants. With online applications, this is feasible in most cases.

Reasonable Accommodation v. Universal Design

Reasonable Accommodation – 29 C.F.R. 1630.2(o):

(o)Reasonable accommodation.

(1) The term reasonable accommodation means:

(ii) Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position; or

(iii) Modifications or adjustments that enable a covered entity's employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.

But employers are exempt if undue hardship exists:

(p)(1) Undue hardship means, with respect to the provision of an accommodation, significant difficulty or expense incurred by a covered entity…

Universal Design – US Dept. of Labor’s Office of Disability

Employment Policy

(https://www.dol.gov/odep/media/newsroom/universal.htm)

“Universal Design (UD) is a strategy for making products, environments, operational systems and services welcoming and usable to the most diverse range of people possible. Its key principles are simplicity, flexibility and efficiency.

Using UD means that facilities, programs, and services take into account the broad range of abilities, ages, reading levels, learning styles, languages, and cultures in their diverse workforce and customer base.

Universal Design is a lens through which every aspect of a business can be viewed, and a set of tools by which products, services, customer satisfaction and employee attraction and retention can be improved. UD in the workplace can be applied in areas related to products, services, the physical environment, communications and technology.”

Marxist Theory, Disability, and Employment

Period of Economic Development

Productivity of Labor Model of Disability Philosophy of Workplace Inclusion

Feudalism; economic development governed by hereditary rights to land,

capital; serfdom

Low productivity generally; extremely limited ability for

people w/disabilities to contribute to economic life

Religious Model: Disability seen as a personal or moral failing; often associated with

religious disfavor

None: People with disabilities generally not in workforce; poorhouses or almhouses

used, or kept in family home

Capitalism: economic development government by owners of capital; minority of

population controlling production for the purpose of

private profit

Productivity of labor increases with advances in technology; people with disabilities can

sometimes contribute to productivity if job tasks

involved are those not heavily impacted by an individual's

disability. Labor is seen as one “cost” or input to be considred in the pursuit of private profit.

Medical Model: Disabilities place individuals at a

disadvantage and impact their ability to participate in social

life; therefore individuals should be medically “fixed”

and technology used to allow them to adapt to “regular”

society as it currently exists.

Reasonable Accommodation: People with disabilities should be allowed to participate in the workforce if they can perform a specific job task as efficiently as non-disabled workers. Some accommodations to increase efficiency may be granted if they do not place an “undue burden” on capitalist profits.

Social Democracy/Socialism: Significant portions of the economy are collectively

managed for the benefit of society as a whole; role of

private profit is limited in favor of production designed to

meet human needs

Productivity of labor has increased to the point where

working hours can be reduced; labor is socialized and job

tasks can be customized for people to contribute to the best of their abilities. Labor

power is used for public benefit.

Social Model: Disability is caused by the way society is organized; barriers in society

should be removed to enhance the ability of

individuals to participate in daily life. Disability should be addressed by the whole of

sociery rather than individuals.

Universal Design: Workplaces and methods of

production should be designed with an eye towards universal accessibility. Job tasks should

be designed to alllow the maximum potential numbers of

workers to perform them without accommodations.

5/17/2017

Above the ADA

Disability and Employment LawThough an Inclusive Lens

Presenters

Carol Rozumalski Seattle, WA

Matthew Denney, Disability Rights Oregon

Banafsheh Violet Nazari, Nazarl Law

Bio Breaks

Take them as you need them.

What to expect from this CLE

Contrast inclusion with traditional Establish the business case for

risk-management approaches people with disabilities in yourto employment organization

Reframe the ADA and related non- Explore examples of universaldiscrlmlnatlon laws to get design

beyond regulatory minimums Q&A and social hour

Identify ways to signal inclusion topeople with disabilities when itcomes to employment

5/17/2017

Overview

Risk Managementvs

Inclusion

Risk Management: a traditional approach

Advantages Limitations

Supports legal and regulatorycompliance

Minimizes exposure to adverseaction

Offers protection againstdiscrimination

Not effective in Improvingorganizational efficiency,productivity or service

Does not create opportunities forcandidates and employees to

put their best selves forward

Risk Management and Inclusion

Risk management is not designed to lead employment decisions

Risk management doesn't yield information on which to found employmentdecisions

Inclusion does a better Job of because it seeks the skills developed bypeople with disabilities in their daily lives.

Frame Reframed

Beyond Minimums

5/17/2017

Compliance t Inclusion

Legal Standard

ADA OR ADA

Americans with Disabilities Act, 42 USC sec.

1201 etseq.

Federal ADA applies to employers of 15 ormore employees.

ORS659.4(X) etseq

Oregon ADA applies to employers with 6 ormore employees.

Employers covered by both state and federallaws must apply the standard most beneficialto the employee.

How many Oregon lawfirms is that?

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2012 OSB Economic Survey

5/17/2017

A PWD "person with a disability"?

Federal and state laws define a person with a disability (PWD) as an Individualwho has:

Physical or mental impairment that substantially limits one or more majorlife activities

A record of such an impairment

Regarded as having such an impairment

Major life activities:

Includes, but are not limited to self-care, ambulation, communication,

employment and ability to acquire, rent or maintain property. They areactivities that the average person In the general population can perform withlittle or no difficulty.

For example, most people can walk three blocks with little difficulty. AnInability to do so could be considered a disability. In contrast, the averageperson cannot walk ten miles without growing fatigued. The Inability toperform this activity would not constitute a disability.

Alcoholism or drug addiction:

Alcoholism is considered a disabiiity under state and federal law. Current useof Illegal drugs is not considered a disability, and a company policy mayprohibit employees from consuming or having alcohol or illegal drugs oncompany premises, or from coming to work impaired by alcohol or Illegaldrugs. However, employees undergoing treatment for drug addiction areprotected under both state and federal law.

OAAP

Oregon AttorneyAssistance Program

OAAP

5/17/2017

20%of US population is PWD

Nearly 1 in 5 People Have a Disability in the U.S., Census Bureau Reports

3%of Oregon attorneys are PWD

2012 Economic Survey

Legal MinimumsWhat is it doing for us?

Two theories of employment discrimination

Disparate Treatment Failure to Accommodate

1.PWD has a disability; 1. PWD has a disabili^

2. PWD was a qualified individual(perform essential function of the jobwith or without accommodation); and

3. PWD was harmed because of

disabiiity.

2. PWD informed the employer andrequested an accommodation;

3. Accommodation available (performessential function of the job witfi orwithout accommodation), effective, and

NO undue burden; and

4. Employer failed to provide anaccommodation.

5/17/2017

Magic Word

Fundamental, not marginal function

Fundamental job duties do not Include the marginal functions that may occurthrough the course of a Job.

Look at:

Employer prepared written description of job

job ad

Job description

Any chance bias finds its way into the job description?

100% Employer Controlled

' 'Job Job Ad Interview

Questions

r V J

Any chance bias finds its way into the essentiai functions?

Essential Functions-factors

(1) The position exists is to perform that function

(2) There are a limited number of employees to do that Job function

(3) Highly specialized, and the person in that particular position is hired for their expertise orability to perform the particular function

(4) Time spent performing the job function

(5) Consequences of not requiring the individual holding the position to perform the function

(6) Terms of any collective bargaining agreement

(7) Work experience of past employees who have held the position

(8) Work experience of current employees that hold similar positions

5/17/2017

Healthy Essdhange

What the law requires.

How are Essential

Functions framed and

used?

What happens

Centering dominant cuiture

Who frames essential functions?

Who sets the tone for the interaction?

How will this impact employers?

How will this cramp our style?

Who decides how far we go?

What is the minimum to get by?

Hostile positionAn ABA OLE

Drlve'*By ADA Lawsuit: A Public Service or 0|»enSeason

Presented by the Peat EstatBf Condemnation and Twst UttgadonCommittee

CchSponsored by the Commercial a Business Litigation,Construction Litigation, expert Witnesses, and Thai evidenceCommittees

Mondavr January 30, 20i7s 1:00-2:00 p*in. eastern

5/17/2017

Hostile positionAn Overview of AOAAA and Reasonabte Accommodation Issues

For iii>Housc Counsel and Homao R«»ottrm Pmonnel

• iliiw trsnitMrd KR pcnioniitd twntac rewHMUiliê aecommwUtiixt «

enq^yees wto are not miwA m tbe ADAAA not pidt up on new

>md create

• Cêr your bases wfe»<italingwkh«n^>mwitfaaw^piobfeiJ«êiJ8Uti8^

tbai you (mdiHnt and doetonem M imosMt aoetmaitodatioa process.

• Be primed fw m incmse in volume of ttoWlity-relaUjd ctelms sad lawswts-

Compliance ^ Inclusion

Signaling inclusionThe Mindset of Employees IIIMwith Disabilities and WhatThey Are Looking For

—

Signaling inclusion: the big ideasFrom the PWD Perspective, Barriers Are Presumed

Getting the information i Need is Obfuscated by Risk Management Content(a better way: https://2acharyandiameslaw.com/directi0ns.html)

i Am on the Lookout for Abieism and "Reverse Accommodations"

8

5/17/2017

What I am looking for: six points

Specific Information that Heips Me Figure Out Whether i Can Do the Job

information About the interview Structure

i Look to See if Spaces Are Made for Me (or Can Be Adapted)

i Listen to How the Organization Talks About Disability

i Seek Examples of Successful Accommodations/Outcomes

Curiosity About Strength-Based History

Examples ofExclusionaryPractices

Two Cases to Help Put Thingsin Perspective

Example 1: Getting aPassport Photo

Example 2; Interviews,Campus Trekking, andBio Breaks

5/17/2017

Small Group Exercise #1 Small Group Exercise #2

The Business Case for

Inclusion

The Business Case: Three domains

Skills and Attributes

Benefits to the Workplace

Improving Service and Growing Customer Base

10

5/17/2017

Benefits to the workplace

Technological advances

Efficiency Advances

As Guides

Navigating Accommodations (formal and otherwise)

Improving service and growing customer base

Client Engagement

More Clients

Better Service

Inclusion Is Supported By Action

Have descriptions of your physical environment

Focus on what a person can do

Be curious and ask questions

Know Your Accommodation Policy

What to do:

1. Form groups of 4 to 5 individuals.

2. Review the fact pattern.

3. What does the interactive process look like?

4. What constitutes an appropriate accommodation?

11

5/17/2017

Present findings to the

What to do:

1. Form groups of 4 to 5 individuals.

2. Review the fact pattern.

3. What changes to policy, practice, or environmentwould reduce or remove the need to request anaccommodation?

4. Now, what constitutes an appropriate accommodation?

Present findings to the

Q&A

12

5/17/2017

Concluding Thoughts

13

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