More than two decades ago, I asked Victor Fortuno, then general counsel of the Legal Services Corp. (the principal funder of local legal services programs), why I, a wheelchair user and legal services lawyer, rarely saw anyone who “looked like me” at conferences, meetings and other national and local professional events. I recall his answer as, “We haven’t done enough and need to do more” to change employment practices. I pursued, with little success, a FOIA request on the topic, which LSC resisted.
With the Americans with Disabilities Act of 1990 then approaching its 10th anniversary, the American Bar Association Commission on Mental and Physical Disability Law studied practices within the profession while law schools reevaluated admissions and testing policies, sometimes establishing courses on law and disabilities. In the 1993 movie “Philadelphia,” Tom Hanks won an Academy Award portraying a lawyer suing and winning damages from the firm that fired him because he had AIDS.
In 2020, the University of the District of Columbia Law Review, with support from the ABA, published a preliminary report on “Diversity and Inclusion in the American Legal Profession,” stating that disability may be “viewed as the result of societally imposed barriers rather than as a reflection of some people having, or lacking, certain characteristics or abilities that others have or lack. … [A] lawyer who uses a wheelchair only becomes ‘disabled’ when physical barriers such as stairs prohibit equal entry to an office building. A blind judge only becomes ‘disabled’ when she must use inaccessible computer technologies. Perceived and actual bias, along with discrimination, result from socially imposed structural barriers in organizations and society, rather than any inherent ability or value of the people in question.”
In 2005, the Indiana Supreme Court promulgated Rule of Professional Conduct 8.4(g), defining “misconduct” to include “conduct, in a professional capacity, manifesting, by words or conduct, bias or prejudice based upon race, gender, religion, national origin, disability, sexual orientation, age, socioeconomic status, or similar factors.” Lawyers discriminating on the basis of disability risked both financial liability and professional sanctions.
The court, a subordinate arm and trial judges became defendants in ADA federal litigation. A federal district court invalidated one question on the Board of Law Examiners’ application form — “From the age of 16 years to the present, have you been diagnosed with or treated for any mental, emotional or nervous disorders?” — as “overly broad, not reasonably contemplated to capture ‘direct threats,’ and, thus, improper under the ADA.” That 2011 summary judgment ruling, based on two decades of precedents and curiously published on Westlaw without a regular citation, approved other challenged questions about applicants’ medical history. A 2015 federal case allowed a deaf courtroom spectator, observing criminal proceedings against his mother, to seek injunctive relief against Indiana trial judges who had not provided an interpreter.
As Indiana state and federal courts addressed the ADA, the Supreme Court of the United States, over strong dissents, narrowed the definition of persons covered by the law. By 2008, dissatisfaction with those rulings led Congress “to restore the intent and protections of” the ADA by amendments disapproving of specific cases and emphasizing that “physical or mental disabilities in no way diminish a person’s right to fully participate in all aspects of society … .” Those amendments passed the Senate unanimously, with 402 “aye” votes in the House, 17 “nays” and 15 not voting. President George W. Bush signed the legislation without reservation.
Despite those amendments, the New York Times reported on Nov. 2, 2015, that “just 34% of working-age people with disabilities were employed, versus 74% of those without disabilities.” The article summarized a study by Rutgers and Syracuse universities in which testers sent fake cover letters and resumes for thousands of advertised accounting jobs, with some purportedly from applicants self-reporting a disability. Employers “expressed interest in candidates who disclosed a disability about 26 percent less frequently than in candidates who did not.”
One Supreme Court ADA case not criticized by Congress was the 2004 decision in Tennessee v. Lane, allowing a litigant and a court reporter with mobility limitations to sue because stairways impeded their access to courthouses lacking elevators. The Indiana Supreme Court had held, in the 2002 case Jordan ex rel. Jordan v Deery, that the Indiana Constitution prohibited exclusion of a child with obvious severe disabilities from a courtroom during the liability phase of a medical malpractice jury trial. Jordan rested on the Art. 1, §20 right to jury trial in civil cases but recognized the ADA. By this ruling, the court provided “an adequate and independent state ground” unlikely to be reversed by a U.S. Supreme Court inhospitable to disability rights.
Would a court now instruct a jury, in the words of the 2020 report, that disability is “the result of societally imposed barriers rather than as a reflection of some people having, or lacking, certain characteristics or abilities that others have or lack”? Twenty-five years after enactment of the ADA, the New York Times found almost two-thirds of working-age people with disabilities were unemployed.
Today the thriving Disability Rights Bar Association offers an excellent website, an achievement suggesting progress since my exchange with Mr. Fortuno. Yet I identify with the child plaintiff in Jordan, excluded by a trial court in rural Indiana because the defendants objected to her presence before a jury considering the circumstances and consequences of her injuries. No one else in that courtroom “looked like her,” either.•
• Kent Hull, a retired lawyer, lives in South Bend. Opinions expressed are those of the author.