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.