Why is this? To begin with, there is a pipeline problem. The number of individuals with disabilities who go to law school are low, in part, because they are less likely to graduate from high school and college and more likely to live in poverty. Relying on 2009 data from the American Community Survey, Cornell University’s Employment and Disability Institute reports that only 12.2 percent of working-age persons with disabilities hold a Bachelor’s degree or higher, compared to 30.8 percent of non-disabled persons, an 18.6 percentage point gap (0.3 percentage points higher than last year). Also, According to the U.S. Census Bureau, for 2010, 27.9 percent of people with disabilities aged 18–64 were living below the poverty line, compared to 12.5 percent of non-disabled persons.
And, for those students with disabilities interested in applying to law school, often they are unable to get the accommodations that they need for the law school admissions test (LSAT). This month, the U.S. Department of Justice announced that it seeks to intervene in a class action federal lawsuit against the Law School Admission Council (LSAC), The Department of Fair Employment and Housing v. LSAC, Inc., in San Francisco. The suit alleges that LSAC violates the Americans with Disabilities Act (ADA) by failing to provide accommodations for the Law School Admission Test to best ensure that the aptitude and achievement level of test takers with disabilities is measured, and not their disabilities. The Department’s proposed complaint cites LSAC’s routine denial of accommodation requests, despite supporting documentation and a demonstrated history of testing accommodations. In addition, the Department finds LSAC’s practice of flagging the test scores of those who receive extra time as an accommodation as non-standard, to constitute discrimination in violation of the ADA. Doing so identifies the test taker as a person with a disability, disclosing otherwise confidential disability-related information to law schools during the admissions process. The American Bar Association’s House of Delegates has recognized this problem by passing the Commission on Disability Rights’ Resolution 111, urging all entities that administer a law school admission test to (1) provide appropriate accommodations that best ensure that the skills of the test taker with a disability are measured, and not their disabilities, and (2) stop flagging scores of those applicants who received extra time and accommodation.
Furthermore, those students with disabilities who attend and graduate from law school do not fare as well in terms of employment and salaries as other graduates. For instance, the National Association for Law Placement found that found that 79.1 percent of 637 class-of-2010 law graduates with disabilities were employed after graduation, compared to 88.6 percent of non-minority law graduates and 83.8 percent of minority law graduates. Of the 224 salaries reported by 2010 graduates with disabilities, the mean salary was $72,495 and the median salary was $58,250, compared to those for women ($81,825) and men ($60,387).
Negative stereotypes associated with disability and unconscious biases continue to impede their hiring, retention, and promotion. Some employers view hiring a person with a disability as a risk. Specifically, they may believe that employees with disabilities will have a high absenteeism rate, be unable to meet performance standards, be unreliable, have low productivity, lack versatility, need extensive workplace adjustments, sustain injuries, require more work for the supervisor, pose a litigation risk, or incur high insurance and accommodation costs.
So, what can law schools, law firms, corporations, and state bars do to promote the inclusion of lawyers with disabilities? A good first step would be to participate in National Disability Employment Awareness Month in October. This year’s theme is A Strong Workforce Is an Inclusive Workforce: What Can YOU Do? The Department of Labor’s website includes a toolkit for employers and other organizations. As part of this year’s celebration, the Commission on Disability Rights, in collaboration with other entities, will be hosting events and publishing articles aimed at raising awareness regarding best practices in recruiting and retaining lawyers with disabilities. Follow the Commission on Disability Rights on Twitter, and subscribe to the 3D listserv.