May 20, 2010

Disability and Diversity: Changing Your Law Firm Culture

William H. Grignon

Diversity. At one point, it was a rallying cry for advocates who fought redlining, glass ceilings, and homophobia in the legal profession. And, to some extent, these advocates have succeeded. Diversity not only got on the radar of most law firms, it also found its way into firm policies, protocols, and procedures. Indeed, click onto any law firm's website (probably even your own firm's website) and you will encounter banners about how the firm encourages diversity, seeks out qualified diverse candidates, and promotes a multicultural approach in which each voice contributes to a harmonious blend of legal work that reflects the diversity of the surrounding society. But, to a large degree, diversity has become so ubiquitous as a selling point it has devolved from a rallying cry to a buzz-word, from a catch-phrase to a platitude. What happened?

In order to understand this phenomenon, and before we can discuss disability within the broader diversity paradigm, let's see how diversity really functions in the business place by examining how it is actually measured by firms as well as diversity advocates. Invariably, it has boiled down to a numbers game: what percentage of your new hires are minorities; how many women make partner; how many lesbian, gay, bisexual, and transgender people (LGBT) sit on key committees; and, rarely, how many of your lawyers have disabilities? As a result, there have been numerous quantitative studies regarding diversity and alleged percentages of certain categories, but very few qualitative studies regarding the effect diversity has on an organizational culture. A big reason for this emphasis on quantity over quality is that qualitative analyses are difficult, disruptive, and expensive, and, probably more significantly, many of the organizations that promote diversity continue to measure quantitatively and award businesses on the basis of numerical data. Looking at these data, we still see a high rate of attrition among diverse attorneys. Why is this?

Diversity is not just counting; it's culture. And firm culture is not just numbers. It is people thinking, speaking, and doing things in certain ways. And the question remains, how does diversity function in your firm culture? And where does disability fit into this diversity paradigm?

Disability and Diversity

Disability is a latecomer to the diversity discussion (dominated by advocates for racial, gender, and LGBT who have fought for inclusion, equality, and opportunity). The reasons are many: traditionally, disability organizations have been underfunded, highly fragmented, segregated in an ADA-oriented paradigm, and only reluctantly welcomed to the table by more established diversity groups. In addition, for many sociocultural reasons, persons with disabilities have not pursued careers in the law. But all this is slowly changing.

Any discussion about diversity, disability, and law firm culture, however, should include some basic facts. There are an estimated (probably underreported) 54 million people with disabilities in America (this is 18 percent of the population). Twenty-six million of these disabilities are severe. As compared with the general population, lawyers are two times as likely to have an addiction, four times as likely to have depression, six times as likely to complete suicide, and nine times more likely to have psychological disorders. But the percentage of survey-responding ABA lawyers who self-identify with a disability is approximately 7 percent.

Those attorneys with obvious or visible disabilities (think, white cane and wheelchair) cannot hide their disability, so they have to fight their battles out in the open. The best practice for these individuals is to (1) disclose (as early and as matter-of-factly as possible), (2) discuss (matter-of-factly and with emphasis on what one can do, not what the disability does not allow one to do), and (3) dispel (both spoken and unspoken employer questions and concerns). But it is not as cut-and-dried for legal professionals who have invisible or hidden disabilities.

Most disabilities are invisible or hidden. An "invisible disability" (ID) is a disability that is not immediately apparent to the naked eye. Some kinds of ID include depression, alcohol/drug addiction, learning disabilities, attention deficit hyperactivity disorder, chronic fatigue syndrome, arthritis, lupus, diabetes, asthma, seizure disorders, heart conditions, cancer, and brain injury. ID refers to a person's condition that causes symptoms such as extreme fatigue, dizziness, disorientation, pain, weakness, or cognitive impairments. And ID symptoms can occur due to birth disorders, injury, chronic illness, chronic pain, side effects of medication, or, most telling for the legal professional, chronic environmental stress. Finally, ID can be intermittently or permanently debilitating, fluctuate over time or throughout a day, and, once again, for lawyers, be exacerbated by stress, fatigue, or illness.

Law students with ID are extremely reluctant to disclose their ID to fellow students. They fear stigmatization. They fear the backlash from their fellow students who, caught up in the desperate competition of law school, see any reasonable accommodation that the student with ID might receive as a favor, a cheat, an unfair advantage that necessarily disadvantages the student without an ID.

This fear of disclosure continues into the legal profession. Employees with ID have a duty to disclose their ID (1) before they request reasonable accommodations, (2) before a performance issue arises, or (3) if the ID poses a safety risk. Lawyers with ID are very reluctant to disclose (self-identify) their ID. They fear they will be exposed to breaches in confidentiality and gossip; stigmatized as damaged, unreliable, and a weak link; and, despite the ADA, discriminated against in case assignments, promotions, and career.

What does this say about prevailing law firm culture—not only for legal professionals with obvious or hidden disabilities, but for all legal professionals, who, statistically and as a function of work stress and lifestyle, have a high likelihood of experiencing a disability or those (e.g., those partners, senior attorneys, and of counsel) who are now facing challenges arising from the aging process?

C.U.L.T.U.R.E.

What is culture? Culture can be defined, in part, as C.U.L.T.U.R.E.—the Collective Understanding Leading to Unspoken Rules and Expectations. Have you ever heard that your organization has a "secret body of knowledge" that, if only you knew what it was and who were the keepers of this trove, you, too, could enter the favored inner circle and enjoy success, promotion, power, and perks? Have you ever asked around only to encounter blank stares, shoulder shrugs, or "tell me if you find out."

What's going on? It is culture at work—the unspoken rules and expectations by which many organizations really operate. These are the ways and means—beyond the trappings of org charts, job descriptions, and employee handbooks—that create and sustain culture and make culture so difficult to change.

Much of culture is subterranean, tacit, and unexamined. Indeed, the first step to changing culture is sitting down and finding out what the culture really is. And this can be a painful process, rife with resistance, denials, protestations, revelations, and realizations. Oftentimes, one of the most eye-opening conclusions from such an examination is just how much of the day-to-day and even the long-term thinking, speaking, acting, and doing of the business depends on unconscious, unexamined, and virtually automatic assumptions, principles, and patterns. Indeed, a well-thought-out and thoroughly implemented cultural audit would probably reveal one or more of the following about the ongoing experiences of many "diverse" legal professionals, including those with disabilities, in your organization.

Many diverse candidates (including those with disabilities) still find themselves wined and dined because they are generally qualified and specifically diverse. This phenomenon continues to raise at least one very serious question. Has diversity really been predicated on an inverse prejudice; i.e., positing assumptions and expectations based solely on an attorney's diversity status—e.g., does diversity presume that an attorney with a disability will bring a "disability perspective" (whatever that is) to the firm? Do diverse attorneys really do their work differently than nondiverse attorneys? If so, is this difference significant and meaningful? Is diversity really necessary in a firm where most legal work devolves to a standard protocol (where diverse attorneys do not change the culture but where the culture usually molds them to a firm paradigm)?

Moreover, once hired, many attorneys with disabilities continue to encounter explicit and implicit "tokenism" (an admittedly ugly, but nevertheless apt term). The firm uses them to promote that firm's diversity initiatives; using their likeness on websites, sending them out to represent the firm at charitable events, and featuring them to prospective clients during "beauty contests" in order to show just how diverse that firm is. Increasingly, progressive corporate clients are demanding that diverse attorneys be placed in positions of real authority so they can get meaningful work and genuine career opportunities. Do your clients hold your firm's feet to the fire? Do your diverse attorneys get good work? If so, are they resented by their nondiverse colleagues?

Indeed, many diverse lawyers (including those with disabilities) still feel resentment and backlash from colleagues (a kind of "diversity tax"). This "tax" forces diverse attorneys to believe they must be better, work harder, and produce more than their nondiverse colleagues in order to disprove the insidious prejudice that they were hired, assigned, or promoted because they are diverse. As a result, many diverse attorneys end up over-committing, under-enjoying, and burning out.

Finally, many diverse, including disabled attorneys continue to encounter "ghettoization" (another admittedly loaded but apposite term) as they are encouraged to seek like-diverse mentors and belong to diversity-oriented bar associations—as opposed to joining the "establishment." Many diverse attorneys, however, while seeing identification, camaraderie, and solidarity as good things, find themselves languishing in diverse-oriented islands away from the centers of real power in the legal profession. It has become a truism that, within many law firms, the diversity committee and similar so-called soft committees are career dead-ends, taking up many unbillable hours and counting for very little in the promotion calculus (as compared with such "hard" committees as recruiting, operations, finance, and business development).

It's painful to find out about and admit things like this about your organization. And it's also painful to change. This might explain part of the reason why firm culture doesn't really change. But there is a much more observable and practical reason. Does this sound familiar?

Your firm holds a big mandatory meeting at which a high-priced consultant talks about the virtues of diversity; you break up into small groups; you do some thought-provoking exercises; the boss mumbles some appropriate things about diversity; the consultant hands out some material, goes home, and sends a survey about the seminar along with a bill; and, three months later, it's business as usual.

Buy-in, Tie-in, and My-in

So, how do you change firm culture to not only realize a broad diversity agenda and a more targeted disability initiative, but also to create an improved workplace for all, where excellent work is being done by happy, loyal, healthy people who like where they are working, like whom they are working with, and believe in the ultimate worthwhileness of the organizational enterprise—a culture that leads to increased clientele, market share, and profits? It boils down to "buy-in," "tie-in," and "my-in."

Buy-in. Nothing changes without the bosses (Chiefs) fully committing to buying into the proposed organizational change. The Chiefs must be committed, visible, vocal, and forceful. The Chiefs must be ready to sustain encouragement (pressure) and, most importantly, commit resources (money, talent, and time). Chiefs should work with a select group (an action committee consisting of executives, HR, staffers, and consultants) to perform a cultural audit of the firm, identify areas for change, and devise a coherent, comprehensive, workable, and measurable action plan that not only sets forth short-term objectives and long-term goals, but also articulates the firm's rationale for the change. But Chiefs can't do it alone. They need what are called Champions (midlevel managers) and Cheerleaders (members of the rank-and-file) to share in the vision and mission of change and who will take ownership of the change and, through intra-office communication (such as focus groups, anonymous 360-reviews, and confidential "what do you really think?" sessions), inspire others to also buy into the change.

Tie-in. Programs aimed at cultural change fail miserably when the program is not tied into the fundamental protocols, practices, and evaluation/reward mechanisms of the organization. Want to increase the participation of lawyers with disabilities in your firm? First, perform a cultural audit and see how disability is treated in the firm. Second, devise an action plan. This action plan not only will set forth policy and procedural objectives and goals, but, most importantly, it will revise job descriptions, amend evaluation protocols, and adjust reward mechanisms to reflect the fact that these new disability-diversity initiatives are now part of everyone's job, will be taken into consideration at evaluation time, and will be factored in when determining pay and promotions. There is nothing like accountability to encourage people to take responsibility. The key here is support. You must give your employees the tools, the training, and, most importantly, the time to buy in and tie in the change and make it an effective part of their everyday work.

My-in. This refers to the individual employee's conscious awareness of and willing participation in and advancement of the desired change. Seeing the buy-in from the Chiefs, Champions, and Cheerleaders, and seeing the tie-in with not only firm policy and procedure, but also, most tellingly, with his or her job description and reimbursement criteria, the employee is encouraged to take ownership of the mechanisms of change. The employee will be even more vested in the process if he or she is invited to participate at the analysis and planning stages, and feels that his or her voice is not only heard, but also valued.

Conclusion

Ironically, diversity, including targeted disability initiatives, might be experiencing its subsumption into a new and, some might say, insidious phenomenon: inclusion or inclusiveness. This phenomenon, at its most crass, posits that everyone (yes, even that Caucasian male who went to Harvard) is diverse in his or her own way. Depending on your point of view, this is something to be either applauded or derided. Those who believe that diversity has forced diverse professionals to emphasize their diversity and be judged on the basis of their diversity might embrace inclusion as a chance to evaluate and reward the individual solely on the quality of his or her work, while those who see inclusion as a way of diluting the notion of diversity to the point of useless universalism will chalk this up to the "establishment," once again co-opting the social agenda and perpetuating entrenched inequities.

Whether it's "diversity," "inclusiveness," or some other paradigmatic nomenclature, there are specific, concrete, measurable, and effective steps you can take to make meaningful change in your firm culture so not only legal professionals with disabilities, but everyone, can benefit from increased transparency, operational flexibility, a sense of vested ownership, and pride in individual responsibility and accountability. Do a cultural audit, develop an action plan, develop qualitative metrics for measuring diversity, and empower, equip, and encourage your people to really embrace and employ buy-in, tie-in, and my-in.

Additional Resources

For further information on disability law and issues pertaining to lawyers and law students with disabilities, visit the ABA Commission on Mental and Physical Disability Law's homepage.