By Alex Long, Professor of Law. Originally published in Tennessee Law, fall 2014.
“For many years, if you were a person with a severe mobility impairment… your only options to reach a second-floor courtroom were to be carried up the stairs or crawl up the stairs.”
Whether it’s working to promote equal treatment under the law, equal access to justice, or equal employment opportunity, lawyers have special obligations when it comes to equality. Despite these obligations, there are some areas where the profession has lagged behind. One of the most glaring instances of underrepresentation involves lawyers with disabilities. According to the Census Bureau, roughly 19 percent of the US population has some type of disability. Yet, according to the National Association of Law Placement, only 0.23 percent of law firm lawyers identify as having disabilities.
The Americans with Disabilities Act (ADA) seeks to promote equality of opportunity for people with disabilities by requiring that employers provide reasonable accommodations for qualified individuals with disabilities. This requirement is best viewed as a means of eliminating unnecessary barriers that prevent people with disabilities from enjoying equality of opportunity. In the case of law firms, this might mean that a firm provides inexpensive technological devices to enable disabled lawyers to perform their jobs, or a supervisor provides written—as opposed to verbal—instructions.
One reason for the lack of diversity in the legal profession almost certainly has to do with the fact that some firms are reluctant to provide the required reasonable accommodations. Many lawyers with disabilities report they have faced reluctance from their employers to provide accommodations and a lack of resources or procedures for dealing with accommodation requests.
While the ADA—along with Title VII and other anti-discrimination statutes—requires important legal obligations of lawyers, it is likely to do little to improve equality of opportunity until more members of the profession internalize the values that underlie the statute. For example, for many years, if you were a person with a severe mobility impairment in Tennessee and you had business in court, in many counties your only options to reach a second-floor courtroom were to be carried up the stairs or crawl up the stairs. In 1998, two individuals decided they didn’t want to choose from those options and filed suit, alleging they had been denied access to the court system. The ADA had been in effect for six years and states were under a legal obligation to make their courtrooms accessible. But in Tennessee and many other states, many courtrooms remained inaccessible.
Ultimately, the Supreme Court’s decision in this case, Tennessee v. Lane, clarified the scope of a state’s obligations to make its services accessible. Since that decision, the legal system has made great strides in improving access to justice for people with disabilities. The Tennessee Supreme Court’s Access to Justice Commission has identified as one of its goals the removal of “barriers to access to justice, including but not limited to disability.” Courtrooms themselves are now more accessible. A disabled person who needs to appear in a Tennessee court can now go to the Tennessee Supreme Court website and learn about available accommodations and how to request those accommodations. It’s entirely possible states made these changes out of fear of future ADA lawsuits, but what seems more likely is that the image in Tennessee v. Lane of a disabled person literally crawling up the courthouse steps helped focus the attention of the legal profession on the issues of courtroom accessibility and access to justice for people with disabilities. The efforts to improve accessibility to the legal system have been part of a broader recognition that promoting equality, including equal access to justice, is a fundamental value of the legal profession.
There is a similar symmetry between these legal obligations and the ethical and professional obligations faced by lawyers. Supervisory lawyers in firms have an ethical duty to make reasonable efforts to ensure subordinate lawyers are practicing competently. If this means modifying policies or practices within reason, this is what is ethically required. In other words, the legal obligations of the ADA simply complement the ethical and professional obligations lawyers already face.
The underrepresentation of lawyers with disabilities in the profession and continued problems of access to justice for people with disabilities should be of particular concern to the profession. By emphasizing how the reasonable accommodation requirement is a matter of professional responsibility and professionalism, the legal profession can take another step toward equality of opportunity for people with disabilities.
Adapted by Long from his article, “Reasonable Accommodation as Professional Responsibility, Reasonable Accommodation as Professionalism,” published in volume 47 of the UC Davis Law Review.