Marissa Ditkowsky, Director of Job Accommodations, continues her best tips and practices for employers working on increasing disability diversity.
Don’t make us fight. It’s exhausting. We have had to do it before. And we have to keep doing it over and over again. When we request something, it’s because it’s going to help us do the best job possible. We are not doing it to spite you. We are doing it because we want to do the best work possible. When we are denied accommodations, it becomes that much more difficult to do our jobs.
When we discuss accommodations like teleworking or flexible schedules, we are often met with extreme reluctance. However, with the pandemic, we know that these options can be put in place quite easily, and the excuses that have been made in the past are largely null and void.
There are misconceptions that disabled attorneys will consistently miss court-imposed deadlines. That is simply not the case. Not only is it not the case, but it places a focus on disabled employees when non-disabled attorneys consistently miss deadlines. In the chance that there is a need to accommodate an employee in dealing with an internal deadline, it is possible to come up with solutions to ensure that the work is complete at the point it must be done. This dialogue is similar to a dialogue that should occur in the supervision of any other employee to check in to determine how their work is going and what they might need to be successful. There is no reason to make assumptions about whether an employee can meet a deadline, or that it is impossible to come up with a solution
There are also a number of misconceptions about disabled employees being expensive to accommodate. Some of what feeds into that is the idea that we are less productive, or that you will need to make expensive modifications. That is simply not the case in most circumstances. In fact, according to a survey conducted by the Job Accommodation Network, 58% of accommodations reported cost employers nothing, and 37% paid only a one-time cost. Benefits and Costs of Job Accommodation, Job Accommodation Network, https://askjan.org/topics/costs.cfm (last visited Oct. 17, 2020). Only 3% of employers reported ongoing, annual costs. Id. The median one-time expenditure for other accommodations was only $500. Id.
If assistive technology is needed, or if there are structural issues at your office that make it inaccessible, for example, it might be necessary to spend some money to accommodate the employee. However, if there is an undue burden, it is not required. Additionally, you do not need to provide your employee with personal equipment like hearing aids or a wheelchair. Finally, disabled employees are productive. If they receive accommodations so they can do their jobs, they will get the job done. If you are concerned about their ability to work 100-hour weeks and their ability to turn a profit, then 1) you should be aware that not every disabled person is incapable of that, and 2) you should understand that is not healthy for anyone, disabled or not.
Accommodations are not just about wider bathroom doors and flexible schedules. Sometimes it’s as simple as adjusting the manner in which we receive feedback and guidance so that we can do our jobs. Providing vague feedback, or providing little guidance while having high expectations, might be problematic for those who need more specific feedback. For example,neurodivergent employees and employees who have anxiety might require those kinds of modifications. Others might require feedback to be provided in a one-on-one setting instead of a group setting, or vice versa. Working with employees to gauge what they need is critical.
The best way to recruit disabled law students and graduates is to connect with them early and demonstrate your commitment to considering their perspectives. Work with these organizations. Connect with students. Discuss their ideas and concerns. Implement them. Assist with the pipeline of disabled lawyers from school to workforce.
You must understand the Americans with Disabilities Act, the Rehabilitation Act of 1973, and how or if either applies to your office or the applicant. In general, Title I of the Americans with Disabilities Act (ADA) applies to private, state, and local government employers; state and local employment agencies; labor organizations; and joint labor management committees with 15 or more employees. The Rehabilitation Act, and how various sections may apply, depend upon your office. Section 501 of the Rehabilitation Act of 1973 protects federal employees. Section 504 of the Rehabilitation Act of 1973 applies to any program or activity that receives federal funds.
For more information about reasonable accommodations in the application process, requesting reasonable accommodations, types of reasonable accommodations, undue hardship issues, and more, check out EEOC guidance at https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada#reasonable. For resources about how that applies to the legal field more specifically, visit https://www.eeoc.gov/laws/guidance/reasonable-accommodations-attorneys-disabilities. For helpful resources about what is required and types of accommodations available, visit https://askjan.org.
State laws may be more protective. Check your local and state laws to ensure that you are compliant.
There are many myths and misconceptions about what the law does and does not require of employers. Many employers, in attempting to comply with the law as a threshold and do no more, fail to meet the basic requirements of the law.
Following the #MeToo era, many workplaces adopted clearer non-discrimination and grievance procedures as a precaution. However, many still have not. These policies are important not simply for instances of sexual harassment, but also for instances of other forms of discrimination, including disability discrimination. Having clear, established, formalized, and written procedures in place for requesting reasonable accommodations and filing grievances can make employees more comfortable coming forward, or simply provide them with enough guidance to know where to go in the first place.
Many employers rely on the letter of the law as a threshold for compliance. They treat the law as the ceiling, rather than the floor. Smaller offices with few employees, for example, may be excepted from certain laws, as may many unpaid internships. However, that does not mean that you should discriminate against disabled candidates, nor should you refuse to implement reasonable accommodations for disabled workers. Implement and formalize office non-discrimination and reasonable accommodations policies that make it clear you will go beyond what the law requires. Do not use compliance as the standard. That is not how you will change your office culture, and that is not how you will attract the most qualified candidates, many of whom are disabled.
This point may be an obvious one. Providing good benefits is a great way to attract the best employees, disabled or not. However, stable health care and a leave policy that allows me to take off for a doctor’s appointment once in a while without worrying about paying my rent is a huge plus. None of these needs make me incompetent, make me bad at my job, or mean that I do not make up the work. Having stable health care means I am much less anxious and able to focus on my work. I can go to necessary check-ups before issues become worse and require more serious action. I don’t have to worry about hundreds and thousands of dollars in surprise medical bills that may come in the mail.
As always, this list is not an exhaustive one. Ensuring that your workplace is accessible and inclusive is not going to involve a simple checklist. It will involve ongoing reflection and interaction with disabled folks. The key is to make sure that you are including disabled perspectives in the decision-making. Educating yourself and disabusing yourself of false notions about disabled attorneys and workers is the first step. If you have questions, or if you wish to reach out to or work with NDLSA, please do not hesitate to reach out to Associate Director of Job Accommodations Marissa Ditkowsky at firstname.lastname@example.org.