Universal Inclusion for Lawyers: How Helping Your Client Maximize the Value of Inclusion Can Also Reduce Both Litigation Complexity and Liability

People say to me all the time, “oh, you work inclusion, and you are a lawyer, do you practice disability law?”  The answer is an emphatic no, and I want to start out by saying that nothing in this document is intended as legal advice, or in any way to substitute for consultation with counsel.

And yet, I did train as a lawyer, though I never practiced disability law, and I did study disability law, both in law school, and many years later as a disability policy expert.  It is perhaps only natural that I begin to wrestle with the question of how one informs the other.  At worst, this piece will serve no purpose to an experienced attorney, but I believe that an experienced attorney examining counseling on a disability question might benefit from a reframing of the issue.

In my employment related inclusion work, my basic thesis is simple.  Employers hire potential employees because they hope to benefit from certain skills, talents or labor potential that those employees bring to the table.  For the purposes of this calculus, the relevance of disability is the extent to which it precludes the fullest and best expression of those skills, talents or labor.

I posit, therefore, that the employer-employee negotiating process should be reimagined from “here is a disability, how do we accommodate it?”  to “how do we best capture the value from this employee that is the reason they were hired in the first place?”  Within this framework, all of a sudden no “accommodation” is off the table, if the cost benefit is right.

Throughout my legal career, my employers always started with an idea of what they were looking for, a talented lawyer.  I remember, just before I was to start my first law firm role as a mid-level associate (I had lateraled from an in-house role), I expressed some concern to the partner who had brought me in, because I knew that I was going to have trouble manipulating paper and documents to the extent that they were still relevant to a practice that was still transitioning into the digital age.

Unfazed, he said “I hired your mind, not your hands, if we need to get someone else to handle the paper we will.” 

I recommend that employers look at each employment challenge this way.  Let’s assume that you’ve hired someone because they have phenomenal coding skills.  Let’s further assume that it has always been the responsibility of each individual coder to maintain her work area, organizing papers, creating files, sorting incoming mail.

It’s perhaps a no-brainer that if you hired a coder with a manual dexterity problem, but who was gifted at computer code, and the challenge was that they couldn’t to do those organizational tasks, you would assign them to someone else.  Not only do you not want to lose them, but you probably don’t want to come up with a laborious solution where they now spend 60% of their time cleaning their desk, but, hey, you made it possible.

I picked this example on purpose, because you might readily realize that if each of your coders was spending 10% of their time on organizational tasks, and this coder would need to spend 60, you could hire one administrative individual, and not only enable this coder, but a 10% productivity boost on everybody else.  This is actually my basic concept of universal inclusion, the idea that, anything that we might provide an accommodation to a person with a disability, we should readily provide to another employee, provided that the demonstrated increase in productivity outweighs the cost of the business. 

Other examples: I use voice recognition software because I can’t type at all.  How many senior executives or law firm partners either type very slowly, or still use Dictaphones or even real-time scribes, and would have their productivity improved immeasurably if they could do as I do and have their words appear on screen.  My voice recognition suite, which is the most expensive type, with full support for legal vocabulary, costs less than $600, and that’s when not bought on sale or in bulk.  For industries outside of law or medicine, the cost is only $200.  Further, if this option is already universally available, then an individual who develops a repetitive strain injury can quickly transition. 

Similar arguments can be made for flexible schedules and commutes, if the business permits, and most other accommodations.  The whole point of the theory is that, if value can be shown, then it should be considered.  I can’t imagine an able-bodied person making the case for why they would benefit from my specialized restroom accommodations, but if they could, and their productivity would be increased more than the cost, why not?

That’s all well and good, but what does it mean for lawyers.  Again, I reiterate that this is not legal advice, but I will share that the basic framework for the employment accommodation mandate is that a person with a disability must be hired if they can perform the essential functions of the job, with or without a reasonable accommodation.  A reasonable accommodation is defined as an accommodation that does not pose an undue burden on an employer.  To determine both of these things, the law mandates a good faith negotiating process.

My approach will not eliminate lawsuits, as we all know that unhappy plaintiffs are never going away.  But, let’s explore the application of this standard if you’ve gone through my process.  First of all, by determining the talents that you’ve hired someone deliver, you’ve basically defined the essential functions of the job.  If you would readily give the function to somebody else in order to have a talented individual in the job, then it isn’t an essential function. 

If you wouldn’t, it’s worth asking the question of why not?  Maybe it’s because you haven’t embraced the process defined above to maximize value, or maybe it’s because that function really is essential to the job.  Your lawyer will help you determine that, but if you’ve thought seriously about why you’re hiring people for a particular job, you’re already halfway there.

Now, can they perform the job with or without an accommodation that does not pose an undue burden?  First, can they do the job?  If they can’t, there is your lawyer’s strategy.  Either your recruiter misidentified the talent, or, despite the two of you working together, you are unable to find a way to unlock it.  Again, if you’ve engaged in my process, you’ll know that already, and the process will have been your good faith negotiations.

Or maybe you’ve identified a strategy but rejected it.  If you rejected it because it’s unorthodox, then again you failed to embrace the process that I identified above.  The process envisions offering any accommodation which will allow an employee to contribute the talents that you are looking for, provided that the cost does not outweigh the benefits of those talents.  If, on the other hand, you’ve embraced the procedure, but found that the cost of the strategy outweighs the benefits of employing the individual, your lawyer has a strong start on the cost benefit analysis.

Litigation is uncertain.  Only your lawyer can help you navigate the ins and outs of the particular legal standards in your circuit, your state and your situation.  (In addition to the ADA, most states have their own disability law.)  That said, lawyer or client (or both), if you follow the procedures of universal inclusion, not only will you maximize the talents of your workforce, but you provided yourself with the beginning of a strong legal defense.

A Lesson from Greenpeace in My Kind of Activism

*Disclaimer: I do not intend by this post to endorse violent actions or destruction of property, whether by Greenpeace or any other organization.* I have never chained myself to anything.

I can count the number of protests that I’ve attended in my life on one hand. I simply lack the attention span and the mindset to be a good demonstrator.

I’ve often felt bad about this. I know that without the brave men and women of ADAPT chaining themselves to buses, without demonstrations in DC and in state capitals, and without heroic actions like the historic occupation of the then Department of Health education and welfare building in San Francisco and similar protests in 1977 which led to the issuing of the first 504 Regulations, I would not have basic civil rights today.

I have been privileged, however, to have some opportunity to be a part of positive change. In my undergraduate days, I was privileged to work with my university as they completely revamped their approach to disability. I have been privileged to work with my employers, small and large, to help them to address disability issues. Especially meaningful to me, I have been honored with opportunities to work in disability public policy, first as an intern lobbyist, then as a municipal intern, then as a city political appointee, and most recently as a Presidential appointee.

Nonetheless, I have gone around with the sense of inferiority. I was gratified, therefore, to read a recent article in the Guardian about the newly appointed head of Greenpeace USA.  Says Annie Leonard,

“You don't have to sleep in the park. You don't have to chain yourself to something.” The organisation had to be receptive                  to all forms of activism, she said. “There has been a bit of a hierarchy of the people who chain themselves to the fence or go                on the big TV talk shows are somehow of higher stature and are more important than the people who make sandwiches. But                making sandwiches for the protesters is really important too. We have to figure out a way for them to plug in too.”

Her final quote in the article ties these statements to a call to action. In her closing prescription, Leonard says, “Building a movement really does require all kinds of people, so it is our job to make this work accessible and relevant to all kinds of people.”

Now, I will not accuse the disability rights movement of having the same preoccupation that Ms. Leonard attributes to the environmental movement, because I simply don’t have the perspective to judge the movement. I will say that I was guilty of this type of thinking, and used it to judge myself most harshly. I choose to learn from Ms. Leonard, to be receptive to all forms of activism, and realize that I can do the part of the work that is accessible and relevant to me.

For prescriptions, I will say only this. If you are like me, and not particularly suited for protesting, for chaining, or for demonstrating, give yourself a little break. Rather than chastising yourself for the aptitudes that you don’t have, or worse, using them as an excuse to do nothing at all, let us be guided by Ms. Leonard’s wisdom, and find our own role doing something that is “really important too.”

Common Ground: Can Disability Provide an Angle to Move beyond Partisanship?

I was fairly politically unformed when I worked as a policy intern for United Cerebral Palsy in Washington, but if you asked me, I’m sure I would have told you I was a Democrat. I’m pretty sure that both of my mentors were Republicans, since one of them had worked in the first Bush White House, and the other had a lobbying resume that one does not associate with the liberal agenda, but I honestly didn’t know, because we were avowedly nonpartisan. Disability, we said, was not a partisan issue. Certainly, the heroes of the ADA include liberal icons like Coelho and Harkin, but also conservative stalwarts like Dole and Hatch. The law was triumphantly signed by a supportive George HW Bush, and aggressively implemented by Bill Clinton. Many like to think that this is because it is a cause so universally good or right that it transcends ideological bounds.

While certainly human sentiment played a role, I think that this is terribly simplistic. Very few people view themselves, or their positions as wrong, or evil. Rather, in the face of conflicting values, people choose based on the ideologies that are most important to them.

For instance, notwithstanding Mitt Romney’s taste for his own foot, I really doubt that he has anything against the idea of helping people in need. he is simply viscerally opposed to that help being provided in the form of government payments. He thinks that not good for society. I disagree, but this post is not about welfare.

So, then, perhaps the unity around the ADA was really a function of the fact that there was agreement upon both the goal, establishing legal equality as a foundation for economic and social equality for people with disabilities, and the means, enacting a broad antidiscrimination law. With neither side objecting to the other’s goal or means, cooperation was not only possible but desirable.

A recent column by Dana Milbank in the Washington Post noted that Ralph Nader and Grover Norquist had found common ground over the minimum wage. Writes Milbank:

Democrats have made the argument that an increase is morally right and that the only thing standing in the way is corporate greed. That may be so, but it hasn’t won them enough Republican support to get the increase through Congress. But what if Democrats were to make a free-market argument that a higher minimum wage would shrink the federal government and reduce the welfare state?

That’s the argument Ron Unz made to Nader’s gathering.

The government spends over $250 billion a year in social welfare programs aimed at the working poor,” he said, addressing the group via Skype. “If we simply made the working poor much less poor by raising their wages to a much more reasonable level, a lot of that money would be saved, probably in the range of $40 to $50 billion a year.” The $250 billion spent on welfare for the working poor, Unz said, amounts to a “massive subsidy for businesses” that are paying less than a living wage and “forcing taxpayers to make up the difference.”

Call me a cynical centrist, but I could paraphrase this long quote by saying, “Liberals ’ argument that this made them feel good was minimally successful at winning over economic conservatives. Once they were able to demonstrate that the apparent feel-good measure was also likely to be economically successful in raising the target population out of poverty, economic conservatives began to get on board.”

Now, I’m no fan of ideologues on either side, and God knows that there are plenty of folks in Washington today who vote ideology regardless of what makes sense, as was sadly demonstrated in the knee-jerk ideological vote against the ratification of the Convention on Rights of Persons with Disabilities (CRPD) in the United States Senate, despite the fact that it was patterned after the ADA, and supported by Senator Dole and the first President Bush. Further, I am liberal, and fundamentally disagree with the conservative positions on issues ranging from gun control to a woman’s right to choose.

That said, I think policy advocates in general, and disability advocates in specific, could use to do work finding common ground among individuals who disagree based not on ideology, but on a differing conclusion as to what makes good policy. Here, political deal making is not so much holding your nose to appease your opponent as addressing your opponent’s valid concerns. This passed the ADA, and, if we are to believe Dana Milbank, Ralph Nader, and Grover Norquist, could create a coalition around the minimum wage. Surely this will not appeal to true libertarians, and will be insufficient to appease true socialists, but, being workable policy for the laudable goal of raising partners out of poverty might be a blueprint to get something done.

Disability advocates should be looking for these points of commonality. As I point out in my Chutes and Ladders post, sliding scale premium, uncapped non-asset tested Medicaid buy-ins for working personal care users with disabilities is such an area. It promotes employment in independence while ultimately lowering costs of government benefits and raising quality of life for people with disabilities. The baseline for universal support among practical minded politicians is that the end is good in the numbers make sense.

We are always going to have areas of ideology where we disagree. My challenge to any advocate reading this is to begin building coalitions by helping reasonable people focus on the items that just make sense. As we come upon 24 years of the ADA, we have living proof of just what that can accomplish.

Guilt, Privilege, and Paying Attention

Years ago, as a young law student, I wrote the following reflection, while working to guide and supervise a plaintiff in Health Law Advocates' successful lawsuit to secure meaningful dental coverage for those on MassHealth. I wrote:

Guilt is not an emotion that I grant too much time. I didn't ask to be lucky, didn't ask to be one of the few persons with disabilities to get all of the services that I need, including "Cadillac" services like twice yearly fluoridation, twenty-four hour Personal Care Attendants, and all the Durable Medical Equipment I need. I am no less deserving than anyone else. Yet, what gives me trouble is that I am also no more deserving. "There but for the grace of God goes me." This rings through my head as I sit at my Vocational Rehab-purchased laptop reading about the tens of thousands just like me. Just like me, but not like me

Maybe they were not uniquely "lucky" to have a disability that left them with full cognitive potential and still photogenic enough to evoke a desire to help rather than the discomfort and ostracism. Maybe their parents were not as tenacious, or as well educated, or as committed, if they were present at all. Maybe they were not blessed with a school system filled with individuals determined to find their abilities, and to help them to grow into their full potentials. Maybe they did not find

a University institutionally and individually committed to their success, complete with tens of thousands of dollars and hundreds of compassionate person-hours of expenditures. Maybe they did not find advocates and allies at every level of Social Services, people that shepherded them through the twists and turns of a system in which so many people fall through the cracks, despite best intentions. Maybe they just didn't have my knack for being in the right place at the right time. So many maybes...

I didn't ask for my disability, or my wonderful services, and our twenty-first century sensibility says that the corollary is that I don't owe any more than gratitude. Like heck, I don't! Call it God, Karma, or luck, I am where I am by a unique confluence of incredible circumstances, of love and fate and the blood sweat and tears of more good people than I will ever know.

I'm here and others are not. Guilt is not a useful emotion, but let me transmute it into a sense of obligation. Only by taking my unique position and dedicating myself to helping others conquer their maybes can I justify the effort, love, and blessing that went into giving me the life that I have.

"There but for the grace of God goes me."

It may be true, but Judaism teaches that we are all partners in the work of perfecting our world. We are all partners, and hence must work to be the mechanism by which one more person gets where I am, and one more and one more, until the problems that I read about today are just another set of unfortunate moments in history.

If everything happens for a reason, then I thank God for the wonderful people and opportunities in my life, and pledge to take the chance they gave me to help as many others as I can. I didn't ask to be lucky, but I am. God, help me to never lose sight of just how lucky I am. But also, help me to never be take that luck for granted, and to do it appropriate homage by using it for creating as much good for others as I can.

In the dozen years since I wrote this, much has changed. The lawsuit was won. My words were used by a wonderful Rabbi to teach us all. And, I no longer get quite get all of the wonderful services I got then. What hasn't changed is the conviction that I am fortunate, have had the luck to avoid a much more difficult existence, and feel that that obligates me to do what I can.

Also, I've learned that while my lucky turns, and where they could've changed, are fairly obvious, any one of us could lose health, physical ability or means at any time. "There but for the grace of God goes me.", but there but for the grace of God goes you too. I know what I'm going to do about it, but what about you?