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Culture, Community, and Care: An Overview of Disability in the Workplace

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Culture, Community, and Care: An Overview of Disability in the Workplace

Whether or not you know it, your workplace is already diverse and includes people with disabilities. But how we talk about disability is nuanced, and sometimes complicated. Where do our legal obligations intertwine with our ability to be effective allies? In this CLE, learn about who comprises the disability community, some cultural considerations, the Americans with Disabilities Act and the Rehabilitation Act, and the relationship between disclosure, reasonable accommodations, and the law. Come curious, and leave empowered to be a better ally within your firm or legal organization.

Transcript

- [Haley] Hello everyone and welcome to "Culture, Community and Care: An Overview of Disability in the Workplace". My name is Haley Moss. I am an attorney from Miami, Florida. I am autistic and I spend an awful lot of time getting to advocate with and on behalf of the disability and neurodiverse communities. It really is something that I take seriously and I enjoy. I am the author of several books on the topic and I'm really excited to get to dive into this. So today we're going to be talking about disability at work in the employment context, if it's our colleagues, if it's our friends, or people we know that are even just applying for jobs. I hope that this is something that we find interesting and can take with us into our personal lives, our professional lives, and even when advising our clients. To help kick us off today, I want to talk a little bit about accessibility, just as some housekeeping that we can have. I know that we are very lucky that we are doing pre-recorded and that this is a recorded program for us here at Quimbee. I do want to make sure that whatever I do is as inclusive as possible. When I think about accessibility, whether it's at a CLE or anything else, I want us to look at it is that it's not something that one person is in charge of. Access is something we create together, that it's a team sport. There's things that I can do to make today more accessible to you and things that you can do to make today more accessible to you. As with all CLEs, that there are captions, transcripts, and other different types of aids if you need them, that you can always toggle those on or off depending on your comfort level. I also know that because we are not live, that you are able to take breaks whenever you need to. I know that sometimes it can be a lot to watch a program all at once. So whatever it is that you need to do to bring your brain and body here or that feels right for you, whether you're on your couch, whether you have to take a break to answer the phone or you need to fidget or you feel overwhelmed and come back later, I am not here to judge you. Please do those things that make today more accessible for you. As for today's slide deck, if you would like a copy of slides, I am happy to provide that, provided that they do not get distributed too widely. I understand there are reasons that we keep them, and if you are someone who is blind or has low vision, that I do make sure that all images have alt text and are screen reader accessible. If you do not know what any of that means, alt text is kind of like an image description. So for instance, if you see a picture, it will say what that picture is of and screen reader technology basically reads that out. So folks who are blind or low vision can enjoy digital content as well. That might be the one thing that you learned today that's new, and if that is, that's okay and cool too, or that might be one of many things. Without further ado, we're going to get our show on the road. If you have joined me for a previous CLE on neurodiversity, you might have heard we talk a little bit about disability and what that means. If not, we're gonna start from the basics, back to the basics, so what exactly disability means and what it is. Now I know when we think about disability, you might have a very specific image in your mind. You might be thinking of an accessible parking spot, you might be thinking of a wheelchair user in particular. That's kind of the image that most people think of when they think of disability. But disability covers a huge range of experiences, not just mobility, not just people who are blind, your low vision, like we talked about when we were talking about screen readers and alt text, or people who might be deaf of hard of hearing, it covers way more than that. It includes people with cognitive and neurological conditions. It includes a lot of health conditions, chronic illnesses, and invisible conditions as well, mental health, there's a lot of stuff that falls into this. So when we're thinking about what a disability is, I wanted to think about what the Americans with Disabilities Act of 1990 is saying. And the ADA basically explains that disability is a physical or mental impairment that substantially limits a major life activity. So that means whatever we're thinking of is either physical, relating to our body, or mental, relating to our brain. And when we think about our major life activities, think about stuff that you probably take for granted each and every day, these functions that are important to our daily lives. And just some examples here, things like being able to concentrate, communicate, to read, to move, Just think about stuff that you do every day and often take for granted, that those are probably major life activities. If one of those is limited by something that affects your brain or your body substantially, then you probably have a disability. Again, this is not an exhaustive kind of list as this idea of just things that are visual, things that are hearing related, things that are movement related or brain based. There's so much that falls into disability, and we're gonna talk about who people with disabilities are as well. And when we think about disability, it impacts a ton of people. In the United States today, according to the CDC, about one in four American adults have some type of disability. And we think about that, there's all sorts of different information about who people with disabilities are, that we can sort this out by gender, by race, by so many different things. But something that I thought was really interesting and worth sharing is kind of what these different disability categories look like based on percentages, is a lot of these things might overlap or they may not. So the majority of people with disabilities that you might be thinking of as terms of function do have some form of mobility disability, followed by things that affect cognition and the brain. And some of these things can also affect independent living, so difficulty doing errands and things that we do by living on our own. I know for me that's stuff that I struggle with as a result of my autism, which is a cognitive disability. We have folks who have hearing envisioned disabilities and also some of these also have difficulties with being able to take care of ourselves on a daily basis as well. So when we think about disability, it really does cover that large of a range of experiences. And when we have that in mind, I want us to remember that especially when we talk about this in a broader diversity conversation, that disability is intersectional. It does not discriminate against people based on where they are from, their race, their gender, their sexual orientation, any of those other factors. And what makes disability so interesting is it is the only minority group that you can join at any point in your life through no fault of your own pretty much, that you can be disabled later in life through getting old essentially, that you might develop health conditions or something cognitive, or you are, God forbid, in some sort of accident, that the only thing that really separates non-disabled and disabled people can be something as simple as a split second and one different decision in life. It's really fascinating to think about it, and some of us were just born that way, like me. And when we think about disability, we also have to think about this in the workforce. We mentioned that a lot of people with disabilities exist in this country today. But also when we think about this from an employment perspective, it's a lot different, that not as many people with disabilities have full-time or gained full employment. When we think about people who are employed, that some of the statistics that we have are kind of abysmal, that not as many are employed. So near about 17.9% are employed. Most are employed part-time, and there's many reasons that this happens. It could be related to the ability to work, to get to work, related to things related to social security and benefits. There are many reasons that folks might be part-time workers. So 29% were employed part-time in 2020. And when you're thinking about who is a part-time worker that's non-disabled, it is significantly less at 16% of people. Again, there's many reasons why this happens. And also just the availability of work as well. So a lot of folks might not have the ability to work full-time like we talked about. Something else that I found really fascinating as well is that a lot of workers with disabilities are self-starters and are self-employed. I am one of these folks at this point, and there are many reasons that I chose to go down the entrepreneurship and self-employment path. And there are also many reasons that other people choose to go down this path, whether it's in the gig economy, whether it's being an entrepreneur, or whether it's just doing something else completely different. And that's about 10% of workers with disabilities. And when we think about your average rates of self-employed people, it's also less there. But when we think about disability employment, it's not always doom and gloom. We tend to look at it as this, "look at who's paid, look at who's unpaid," especially when we think about communities that are further pushed to the margins, like people with intellectual and developmental disabilities. But the story that we do end up finding is that hiring people with disabilities is good for business. Now, I know many of us probably think of this as a moral thing, of a good thing to do when we hire people with disabilities. Right? And we probably think about this in this moral sense of that we feel good about it. And that's true that we do have this favorable public opinion of businesses. And even with us in law practice, that when we see folks with disabilities that are working as our support staff, we feel good about it. The public feels good about it, they trust us, they have a good relationship with us. It's something that's beneficial, but it's not just a moral impetus to hire people with disabilities. It's also just good business that when companies are disability inclusion champions and do hire people with disabilities, Accenture actually found that they have higher revenue and higher shareholder returns than companies that do not employ disabled folks. Basically, it actually makes them more money and it's a good business decision. There's so much that goes into disability policy and employment, but we are not going to really get into the thick of that today. There's so much to be unpacking, but kind of to help us with our conversation about disability, we're gonna talk a little bit about culture. After all, we are talking about culture, community and care today quite a bit. So we think about culture, I think a little bit about what disability etiquette and culture really look like, and it's not something that can be summed up in a one-size-fits-all. There's so many different forms of disability community and sub-communities that go into this, but there's a couple things that seem kind of straightforward. And one of those things that I feel and have found that is pretty consistent amongst all different types of disabilities, is that we really don't like euphemisms, or when you refer to disability as something else that isn't the disability itself or just the term disability. I'm thinking about a lot of you who might use words that are either viewed as outdated or offensive in some way, or just kind of avoid the topic completely. If you don't know what some of these are, think of something like perhaps handicapped, and I know some of you use that to refer to parking spaces. Pro tip, call them accessible parking spaces because that's exactly what they are. They're bigger, they're wider, they're closer to the destination, and everybody kind of benefits. Also things like special needs, differently abled, all of these things just don't really contribute. I know those of you who are in estate planning, you might be thinking of special needs trust as a term of art and that is totally understandable. I know some of your states might refer to it as a supplemental needs trust. I will usually use that if I can because I often think about myself, but my needs aren't that special. They're just human and sometimes I need a little bit more support. The exception to all of these rules are pretty... Or this kind of guideline is if a person uses this type of phrasing to refer to themselves, I don't know many people who do say that they have special needs for instance, but if you do encounter that person, be sure to honor that preference and don't tell them that they're wrong. That usually is kind of considered rude. There's another big language thing that I always like to point out, and this is is kind of a debate of sorts within the disability community. But it's something that a lot of well-meaning allies want to get right, and that's how do we talk about disability? This person-first versus identity-first language. Now if you've listened to me throughout, you've probably heard me say both people with disabilities and disabled people or disabled folks, and you probably thought that seems like a pretty interesting interplay there that you're using both those things. Now, person-first language essentially puts the person with a disability first. So that might be saying that Haley has a disability if you're talking about me, or that Haley has autism. And usually this is something that is considered the default for many clinicians, for many professionals because it's viewed as respectful. It's viewed as really centering the human being and reinforcing that someone is a human before their disability. As for identity-first language, it basically says that you can't separate the person from the disability. So this might be someone who considers themselves capital D death or disabled or autistic. I, personally, when I am talking to audiences or doing this in my own writing, whether it's legal writing or journalism or something else, I will alternate between person-first and identity-first language. So even today you will hear me say people with disabilities and disabled people interchangeably, but I always no matter what, will put a person's preference at the forefront. So if someone I know says, "I purposely refer to myself as disabled," I will make sure that is exactly what I use whenever I'm talking to or about that person. If you can ask someone how they identify or how they describe themselves, please do it. As for me, you probably have noticed throughout that there are different ways that I describe myself. I will often describe myself as a person with a disability or disabled. I will always describe myself as autistic, rather than someone with autism. I just can't separate myself from the autism. It colors every experience in life that I have. So that's personally my opinion on that. And I always appreciate when people ask and they want to get it right, it usually feels good. So that is something I recommend doing. And if you hear something that's out of the norm when someone describes themselves and/or are referring to their personal experiences, don't tell them they're wrong. It's still very awkward every once in a while when a clinician or researcher tells me to use person-first language to describe myself when I made a very deliberate choice to say I'm autistic instead, which also kind of goes into culture, that each disability community or sub-community has its own culture, its own kind of customs, and ideas as well, which is really cool. Something that I've always noticed that's really fascinating is when somebody gets a new diagnosis, kind of our first reaction when someone tells you that they have a disability is, "I'm so sorry," that kind of pity, that kind of anxiety, that shame almost. But in disabled communities, you don't really see that as much. What happens when someone I know gets a new diagnosis, whether it's a a chronic illness that has finally been figured out or that a colleague of mine discovered that they had ADHD the first time at age 50, there's not this "I'm so sorry" culture. It's the "I'm so glad you have an answer" or, "You must feel so relieved," that it's almost seen as this thing of relief for celebration. While in the dominant non-disabled culture, it's seen as something to be feared, which is really fascinating. And I know some communities have different ways of communicating with each other, that maybe there's less small talk, that there's celebration, such as how in deaf culture there's capital D deaf, which refers to culture, while lowercase D deaf refers to a lack of hearing or hearing loss. All sorts of little nuances and rules. If you're interested in learning more about disability culture, I always like to find the people where they're at. There's all sorts of really cool resources. One of my favorite books or anthologies on the topic if you're interested in learning a little bit more is called "Disability Visibility" by Alice Wong. And Alice also has really fantastic community out there as well, on Twitter, online, on everywhere. Twitter's a fantastic place if this is something you're interested in learning more about as well. One big thing is people with disabilities, we're people. I know we've been reinforcing that a little bit today, but we also have boundaries and want to be treated like anybody else, whether it's personally or at work. I get asked a lot of very invasive questions that people would not ask my neurotypical, non-disabled colleagues. I get asked for instance about my LSAT scores probably more often than your average attorney who is several years out of law school, because people are curious how confident I am. Or even four years after taking the bar, I get asked how many times I've taken it, things that I know that most people don't really experience at that point in their career, and it feels very invasive. Sometimes people will ask questions about my personal life even though we're complete strangers. And if you wouldn't do that to somebody else, depending on your relationship with the person, probably not your best idea to ask me those questions either and also treat us like anybody else. A lot of times we don't do a very good job at presuming confidence of people with disabilities, that we assume that they're perpetual children of sorts. So people will often speak slower or they'll talk to me the way that I talk to my cat with kind of the baby voice. And I'm also like, "Hey, I'm a full-fledged adult. I promise I went to law school. I have a bar license. I did the thing. I am still very much competent, just as competent as five minutes ago before I told you about my autism." So please just treat us like people. I know that is easier said than done sometimes based on what we think about disability. But always assume that somebody understands unless they give you a good reason that they do not, or it seems abundantly clear that they do not. As for assistance, I know that we are all good people and that we want to be helpful when we see people with disabilities who seem to be visibly struggling or that we assume that they need help because a disability is present. I get offered a lot of help that I don't want and I don't need. I'm usually very appreciative of it, but I also give a lot of, "No, thanks, I got it," answers just as many times as I might say, "Yeah, that would be great. Thank you so much." So if you are offering to help someone and you have reasons to do it or no reasons to do it, be prepared for people to give you one of these two answers. If they say no, just move on with your day or just have a conversation like a person. You do not have to be superhuman or superwoman or superman and insist on saving the day and giving help even when it's not wanted nor needed. I promise, at least from my experience, I know my brain and body very, very well. I've spent 28 years with it. So I know usually when something is too much for me or it's something I can do down pat, or it might just be a little bit difficult and I don't feel comfortable accepting help from a stranger or somebody for whatever the reason. Think about that in many different situations we feel comfortable with help versus when we don't. I often talk about how I feel very comfortable when somebody well-meaning offers to help me put a carryon in the overhead bin on an airplane, not because of disability, but because it is hard, because I am short, that I'm always very grateful when that happens. But when people offer to touch my stuff and help me with things in most other contexts, I'm like, whoa, this seems like a space violation. So think about context. The context person to person, things look very, very different. And also that same situation might look very different for a wheelchair user who does not want their mobility aids being touched or losing control of their mobility, versus for instance, like I said, when I am very grateful for the stranger who helps me put my bag in the overhead on an airplane. Moving right along about culture, I want to chat for a second just about this idea of cultural competence, which is something that we're learning a little bit together before we really dive a little bit deeper. And when we think about cultural competence, it's really our abilities to understand, appreciate and interact with people who are different than we are. And it turns out that when it comes to disability, we're not always great about it. Like we were talking about people have a tendency to talk down to me, they feel sorry for me. They assume my life must be incredibly difficult. I know so many people who get comments like, "I don't know what I would do if I were you. I think I would kill myself." I've thankfully never had someone say that to me, but I know a lot of folks with chronic illnesses or other complex health needs who have had people say that to them, and it's considered very rude to do that. And how we treat our colleagues might be very different too. So if you work with people with disabilities, spoiler alert, you do whether or not you know it, not everybody discloses for many different reasons, that you might be treating them differently or you might automatically be assuming that they're lazy, that they're incompetent, that something else is going on. And we're gonna unpack that a little bit more later. And something else that happens is we unintentionally are reinforcing a disability hierarchy of sorts. And what that means is that we have placed more value on people with certain disabilities above others. So we have a tendency to put more respect on people who have physical disabilities because their brains aren't affected. We still view them as capable and smart. Just for instance, their legs or their arms or some body parts don't work the way that we hope they do, or limbs don't work, or if they're blind or that they're deaf, that we have a different view of, say, someone with intellectual disability who we might view as more of a drain on society or resources, that we all have these different biases and beliefs. Or that they're not capable of having a job the way that someone who might be a wheelchair user is, that we have this kind of hierarchy of sorts that might be reinforced, and something about disability hierarchies and that this is something that you've ever experienced if you think that someone is worthy more so than another, this is something that also is being dealt with within disability communities of who is being centered, who is being viewed as more desirable. And oftentimes it's something that intercommunity politics reckons with too. Not just on the basis of disability, but also with other cultural and social and identity factors like race, gender, sexual orientation, where you're from. All sorts of things go into this as well. So when we're working on developing our cultural confidence, we're starting here with the first couple of things. And this is exactly what we're doing in today's CLE, that we're becoming aware of disability and learning more about disabilities at work together. We're becoming aware. We're gonna address our attitudes next together and learn a little bit more about our own biases, our own belief systems. Then we're gonna learn some knowledge to hopefully do a little bit better at that. And then we're gonna hopefully have some actionable items and learn some skills to be better. And then this kind of repeats over and over. Then we can impart those skills to people who are at the beginning of their journey, and we can keep learning and giving back to one another. So now we're gonna do this attitudes adjustment thing. We're gonna learn a little bit more about attitudes now that we're a little bit more aware today. And when we're doing that, we're starting with this idea of ableism, and ableism is super complicated. It's not really a one-size-fits-all. And if you've never heard of ableism before, the Center for Disability Rights gives a really great rights-based definition. If we wanna go justice-based, there's a really fantastic definition from attorney activist TL Lewis, and it seems a little bit more complicated for our purposes today. As much as I love TL Lewis's definition of ableism, that's always working and it talks about fitness and desirability and productivity, it might be a little too advanced for us at the beginning of our journeys when it comes to disability. So we're gonna go with this rights-based definition talking about beliefs and practices that devalue and discriminate against people with physical, intellectual, or psychiatric disabilities, and often rests on the assumption that disabled people need to be fixed in one form or another. Translation, we're seen or viewed as subhuman, subpar, or failed version to normal. Also worth pointing out is that ableism is intertwined in our culture due to many limiting beliefs about what disability does or does not mean. This is why we defined what disability is under the ADA earlier. How non-disabled people learn to treat people with disabilities, that's why we talked about cultural competence. And how we are often not included at the table for key decisions. How we're not included is a big one that I wanted to point out here, because so often, even when I get to go to CLEs or different trainings or different educational programs on disability, I do get to hear a lot from people who don't have lived experience. I get to hear a lot from parents, I get to hear a lot from researchers, I get to hear a lot from siblings. I get to hear from literally everybody but the person who is living it day in and day out. And think about when we are talking about who's on boards with directors at NGOs, when we think about who is doing the work day in and day out as well, that we don't often think about people with disabilities as being leaders or even having that perspective there. We often think of accessibility as an afterthought rather than at the forefront. Essentially, ableism is constantly having to adapt. It's living in a world that might not be equipped with me in mind or for me, that I am constantly having to adapt to a world that sometimes forgets that there are different ways of existing outside of this, quote-unquote, "Normal" majority way of having bodies and brains that operate throughout our world. When we think about ableism, I know we all have our own biases and beliefs, so let's think about some of the stuff that we probably might believe or are holding onto, right? And some of this might seem really obvious or maybe you've thought it before. I know I certainly have. And I have quickly learned that maybe these things are not right, or that maybe I just hadn't encountered people who have these specific disabilities or something of that nature. So maybe very obviously we think of when ramps aren't present in buildings or things just aren't physically accessible, or you might be thinking people with disabilities are lazy, that we're helpless. Think about how maybe you have this pity idea, or that you assume that someone with ADHD like one of your colleagues might just be lazy, easily distracted, doesn't wanna get anything done. That there's also this belief that we're burden on society or others or that we're draining economic resources, that maybe we aren't deserving of the same opportunity, or that it takes so much work for us to implement proper support. Something that we talked about a little bit today is this idea of sympathy and pity, of this, "I'm so sorry," or treating us like children, that a lot of this happens. I know that I've had friends with physical disabilities that before we really started hanging out more, I was always very afraid of doing the wrong thing. And sometimes it feels very awkward and I want to do the right thing and I'm scared that it seems like I pity them, when really, I don't know how I feel sometimes, or I just realized, well, this is just how this person is. Don't think too much of it. And something really obvious, kind of a quick stereotype in there for you is things like deaf people can always read lips. Autistic people are always going to be in the tech field, not always true. Same with deaf people reading lips, that doesn't always happen and not always reliable. And then there's some sneaky versions of ableism. So one of the ways that it's baked into our culture is even the words we use. So I am personally trying to get better at this. It's not always an easy thing to do. I'm trying to get better at not saying things that can be harmful. I know a lot of us have learned not to say the R-word anymore. It's been quickly phased out of federal legislation with Rosa's Law back in, I believe it was 2010, is that any mention of the R-word was replaced with intellectual disability in federal statutes. Very interesting thing to think about. So we've gotten better in some cases, but I'm trying to do better at not saying things that are harmful to people with intellectual disabilities that aren't just the R-word. So I'm trying to get better in my personal life and not saying things like moron, idiot, stupid and dumb. It is very hard because you hear these words almost every single day. The same also goes for psychiatric disabilities. I'm really trying hard to get away from crazy and insane to describe things that happen in my day. I have gotten very good at using some replacements like wild or ridiculous or hectic or even bananas. There are so many ways that we can kind of unlearn a little bit of our ableism, or at least make a conscious effort. I promise that you will not always get it right. You will mess up at some point. I certainly still do. And of course we talk about accessibility and how it should be something we keep in mind regularly, rather than at the end of the day or after we already mess up. So there's so many things that we can do and you might hold on to some of these. And if you do, that's okay. We're gonna learn through it together. That's half the fun here is we get to learn as a team, which means we're getting into the actual knowledge base that we were talking about. So we talked a little bit about awareness and attitudes. Now we're at knowledge before we drop off into skills. So when we think about knowledge, we're thinking about disability at work in our legal lives. And essentially when we think about disability, there's two major pieces of legislation that I want to chat about. Most of disability rights, if we're talking about it from a historical perspective, have been successful at the legislative level. Courts have not been great at adding new things to disability rights. There's a couple exceptions here, but they aren't really relevant as much to workplace. To help guide our discussion, we really have the two biggies here. The first is the Americans with Disabilities Act of 1990. This is kind of viewed as the landmark civil rights piece, and that essentially does prohibit discrimination against people with disabilities in all sorts of aspects of life. It's divided into five titles, dealing with employment, public entities, public accommodations, telecommunications, and there's a nice little catchall in Title five. And then we have the Rehabilitation Act of 1973, which mostly deals with things that are related to the federal government. So Section 503, if you are receiving federal funding or you are a federal agency contractor or subcontractor, this might be something you're thinking about, such as affirmative action goals for recruiting, hiring and employment with people with disabilities. The Rehabilitation Act might also be why on some job applications you might have seen this "Do you have a disability" question for reporting purposes. The "yes, no, prefer not to disclose" is that might be because that employer is receiving federal funding or is a contractor or subcontractor for that purpose. Section 504 is a little bit more broad and this is kind of the precursor to a lot of ADA. And that piece of legislation does not allow discrimination in programs, entities, or activities from government agencies or any place or program that's receiving federal dollars. That covers a huge swath of accommodations, places, businesses, universities. Basically that really guides how we got here in so many ways. And to help us understand what the ADA does in an employment context, we're thinking about Title 1 of the ADA. And Title 1 prohibits private employers, state and local governments, employment agencies and unions from discriminating against qualified individuals with disabilities in the entire employment life cycle, from how we do applications, to hiring, to firing, advancement, compensation, training, and anything else related to the employment life cycle. I always like to say just think about everything from hiring to firing, everything covered there in between, all of that relates to Title 1 of the ADA. This applies to employers that have 15 or more employees, and that does include the state and local governments. The ADA is not the ceiling, it is the floor. So depending on what jurisdiction you're in, you might have a more restrictive state civil rights law that might say this applies to places with three or more employees. Or it might be that 15 or more like the ADA and mirror that. Keep that in mind and try to look that up if you're really unsure what your obligation is. And that brings us to our good old friend, the Rehabilitation Act of 1973. So if you are someone who is covered under this, Section 503 requires that we take affirmative action in recruiting, hiring, promoting, and retaining employees with disabilities. So some of those obligations, if you are someone that's covered under 503, is having some form of affirmative action plan, there's an aspirational goal of having 7% of your workforce having disabilities. You have data retention and voluntary self-identification of individuals with disabilities. Then again, when we're thinking about that voluntary self-identification, we're thinking about those forms that ask if you do have a disability, yes, no, or prefer not to disclose. I have many opinions on that because I think a lot of people are afraid to identify in those forms primarily because they're not sure how it's being used. But if you were always wondering how that data gets used, it is used because that place may have an obligation under Section 503 of the Rehabilitation Act. Who is covered under this? There's a couple different groups who are covered. The first is any business or organization that holds at least one federal contract or a subcontract that's greater than $15,000. Or if you are a contractor that has over 50 employees and any federal contract or subcontract over $50,000, you have to have a compliant affirmative action program or plan. That's a lot to think about, but for the most of us, we're probably thinking more about Section 504 instead, which prohibits discrimination against individuals with disabilities in any program or activity receiving federal financial assistance. For those of you who have ever been students with disabilities in higher education, this is you. You have probably had 504 compliance or you've thought about 504 in those certain situations, especially if you also went to a private school in K through 12 and they were receiving federal dollars because kind of a fun little wrinkle there on private schools. We're not talking about education law today, but public schools are covered under a separate piece of legislation that you may be familiar with as the Individuals with Disabilities in Education Act, or IDEA. IDEA does not apply to private schools or something like that. So that way, folks who do have discrimination complaints and need to be compliant, they might have something under 504 instead. But 504 can also apply in the workplace, which brings us to probably one of my favorite workplace topics that we have. And this is all about disclosure. How do we share that we have a disability? What do you do if your colleagues share that they have disabilities with you, or you're a manager or something like that and you're not sure what to do? Disclosure is kind of a tough thing. It's highly individual. It matters from situation to situation. There are colleagues I felt super comfortable with over the years and people I wanted to say as little as humanly possible. It really is kind of a gamble of sorts to figure out what the best way, how to do it, and also how to make sure you're getting your needs met. All of this is really kind of scary sometimes. But when we think about disclosure, I want us to think about it for a minute. Like why would someone in any point in the employment life cycle want to disclose? And people want to be proactive. They want to avoid misunderstandings either whether they do it voluntarily or feel boxed into disclosing. You might have someone who feels they have absolutely no choice but to disclose because a disability is evident or obvious. Maybe they're using an ability aid like they have hearing aids, they're a wheelchair user, they have a cane, they clearly are blind, something like that, that you know that it's obvious based on looking at this person's body and appearance that they have a disability. Of course they're gonna say, or you already figured it out. Or the person needs an accommodation under the ADA at some point in the process. Keep it in mind that people may be very voluntary at sharing this information and be willing to volunteer. I am one of those people who likes to volunteer this information because you're gonna find out anyway, whether or not I like it. I use this take it or leave it approach and I will bring my full self to an interview or whatever job I'm in, even mentioned it on my resume or a cover letter because I take pride in who I am. And if someone can't accept that piece of me, then it's not somewhere that I would like to be working for instance. I also want to be proactive. So part of my disability in particular is that I miss a lot of social cues. I'm not very good at reading between the lines. And chances are I will misunderstand something at some point, it will be assumed that I am ignoring you or that I'm being rude or that I'm just too blunt for my own good, when really, I just don't understand at times that maybe it's not appropriate or that someone else will interpret that in a negative way when really, I do mean well and I want to do the right thing. But sometimes it just doesn't come across to a neurotypical person that's also not disabled in the same way that it does in my head or to other people within my community. And finally, a lot of us view disability as a strength that perhaps you view that you bring a unique perspective, that this is also part of diversity as we're beginning to notice that disability is more of diversity. It's not just a health and wellness topic. There's so much here as well to think about of why this is a strength that I know I bring a unique perspective and how I think and how I approach problems, and also, it benefits whatever firm or workplace that I'm in. And then there's another question that shows up that people want to know is, is disclosure a helpful tool if we're on the other side? So say we're the employer, do we care? Is this helpful? And the answer is yes. That an article from a law review in 2017 actually explain that disclosure can really help bridge that gap and it provides context about the person. So it might explain things like why they behave a certain way that we don't quite understand, or why they might have had several different jobs or inconsistent employment in the past, such as if we have someone who's had a lot of part-time work or that we've had someone who has had serious gaps in their employment history. This especially came in this article because it was about autism in particular. Autistic people face the highest rate of unemployment and underemployment of all disabilities. There's so many different reasons that happens, but that's for a entirely different discussion. But when we have this disclosure component, it really does provide context, and isn't that this person is so fundamentally flawed or that there's something we just don't understand. But it really does help color in the picture that when we meet someone for the first time, we kind of get like a little outline. Think of it like that. We get this little outline of a picture, right? Like we get like a stencil. And when we get to know them and we understand different things, including disability status, it adds color into that picture. So when we're able to see all the colors, we understand, okay, this is what this picture is of, not just a shoddy line drawing. Think of it like that a little bit when we talk about disclosure as well. And when we are disclosing, what does that even look like? Disclosure comes in two major categories to me, that you might have someone who does soft disclosure, and that's when an applicant or an employee or someone that we know or a colleague hints at having a disability, and you can't really confirm or deny that that's the case. So maybe they mention something in passing or they say, "You know, my brain does this or it's really helpful when someone else does this," which is also asking for support really vaguely. This is something I do a lot is I might say, "Hey, it's really helpful when you give me clear instructions, or I really appreciate when you let me know I'm on the right track," because I'm a people pleaser, which is also my anxiety at play. That's if I don't do this right, that they're gonna hate me, that they're going to do this, that all this other stuff. Sometimes think about how we disclose other pieces of our identities very softly without having to say too much, that we might mention in the past that we've been active in an allyship group or an affinity group. So I know for those of you who might be recent graduates, you might have noticed that your law school had a chapter of the Disabled Law Students Association. Maybe you participated in one of their events, maybe you were on the board. And that may have meant that you are a person with a disability yourself or you were just committed to the disability rights for whatever the reason. Maybe it's your family members, you wanted to learn more. I always like to look at allyship and affinity groups. Is it there for everybody, not just the group that they're tending to really cater to? So anyone can join those groups, pro tip. And if your past workplace might have had an employee resource group and you were part of that as well, that might also have been something that you've mentioned maybe as a leadership role, something on your resume, whatever the reason might be. And then we have people that are really no questions asked, you know that they have a disability, that they absolutely mention it. So if I tell you, "By the way, I'm autistic," that's a hard disclosure. They describe it somewhere else when they're coming in. So they might tell you in their cover letter, because I know I've done this before, being like this brings me a unique perspective because most of what I've done in my life is disability related. I can't really avoid it. Same with my resume. So it might be like provided firsthand experience in training about neurodiversity that might basically tell you, oh, by the way, I just disclosed, or other materials that they bring. And finally, someone has to disclose if they are requesting an accommodation under the ADA. And then you're probably thinking, this is all great, I can use one of these things if I have to share this. And then we're thinking, what do I do if someone shares this information with me? Someone has told me they have a disability. This happens to me at least once a week because people trust me, they want to share their stories, they want to thank me for something that I've done. If someone shares that they're disabled with me, the first thing I do is I try to kind of discern their intent. Why are they telling me this information? And when this happens, the first thing I do right away is I thank them for sharing, because it does require a little bit of vulnerability and trust to be able to open up about something that we perceive shameful and difficult. And if I really don't know what to do, I always, no matter what, ask someone how I could support them because there might be many different reasons this person is telling me, and it puts the ball back in their court to handle the interaction however they want. So they could just be like, "No, I just wanted you to know. Or I really wanna get this accommodation process started. What do I do?" I like giving people options when we have those discussions. It's really important to me at least when we have that when it does come to disability and disclosure. Which brings us to that gap that we're talking about with accommodations. Where do we go with this? Essentially, we cannot discriminate against a qualified individual with disabilities under the ADA. And there's all sorts of different case law that points to this such as US Airways vs Barnett, the EEOC versus CEC Entertainment, et cetera. Generally speaking, someone does not have to disclose unless or until they need an accommodation. So you can be a person with a disability and you never have an obligation to say anything unless you actually need an accommodation. As for what this means, if you are a covered employer, you have to provide a reasonable accommodation except when it causes an undue hardship. When we're thinking about what is reasonable, look at it is it something that helps us perform the essential functions of a job? If you do not know what the essential functions of the job are, we have a fantastic definition from the statutes that explain that it is the fundamental job duties of the employment position that the individual with the disability holds or wants to hold someday. If you need help pointing out what those essential functions are, start with the job description. It usually tells you what is required or someone is supposed to be responsible for in that role. If you do not know what to do and you need ideas about how to accommodate someone because you don't know what they need or what might be best or they don't know what might be best, because that was often me, you could check out the Job Accommodation Network. That is a super helpful resource that I can point you to. That is askjan.org. They have all sorts of different information based on all types of disabilities and so much more. Which brings us to really dispelling these myths. We talked a little bit about how we can't have accommodations that cause undue hardship, which you might be wondering what exactly that means under the statutes. Now, undue hardship basically is not just financial difficulty, which most of us think that it is, but also things that it might be super extensive, substantial or disruptive or that it fundamentally alters the nature or operation of your business. Pretty difficult standard to meet. We have to prove that accommodations are reasonable on the face so that special circumstances make it reasonable in specific situations and then employers can consider whether or not there's an undue hardship present. When we think about this financial difficulty component, I want to point out that we often do associate accommodations with money and being expensive, but the Job Accommodation Network points out that your average one-time cost of accommodation is usually $500. And the vast majority of accommodations do not cost employers a dime, that most accommodations are in fact free. Most accommodations that I've ever requested or needed did not cost my employer anything, which was extremely cool. I wore headphones around the office, I would dim my lights. I would do other things. I would bring in things like fidget spinners or different fidget toys to keep myself regulated. All these things did not bother my employer. They did not cost them money and it made me more productive and better able to do my job, which was extremely cool. Which kind of brings us to the next piece of our conversation, which we're talking a little bit about compliance when we're interviewing people with disabilities, because I know we all have lots of questions. And we think about what can we ask someone, right? Because we don't wanna accidentally discriminate or have an ADA problem when we're interviewing folks. That we can ask someone no matter what, if they can perform the essential functions of the job with or without an accommodation. This means you can ask this question even if you know someone has a disability or that it's visible. When we're talking about our professionals, because I know a lot of us are lawyers, if we're interviewing other lawyers, we can ask people if they have professional licenses, accreditations, or they will within a reasonable amount of time. So if you are interviewing a three L, you might ask, will they be taking your state bar right away? Or that if they are moving from out of state, when will they be taking the bar exam? Questions like that you can totally ask. We can also ask about stuff like training and skills. We can ask about their past work history even if we do see those gaps or things that seem kind of questionable. So if we do know that someone has a disability, we do not just open the door to all sorts of really shoddy type questions and making them feel uncomfortable, but it is totally reasonable to ask if that disability poses difficulties for performing a specific task. So for instance, if one of your job duties is something like lifting 50 pounds or speaking on the phone and someone has a known communication difference or they are deaf, you can ask how they can do that or what accommodations they would need to do it. So maybe someone who's deaf that is applying for a secretary job and needs to answer the phone might say, I can feel the vibrations of the phone, or I use a TTY service, or whatever it may... Or text a speech software, whatever it might be, in order to explain how they would, for instance, answer the phone in your office. That is a totally reasonable thing to be asking. As for things that we should not be asking because these are things that are viewed as discriminatory is we can't always ask things about specific disabilities. I really don't like when people do this. It's super uncomfortable. And if you're an applicant and you get asked these questions, it's difficult to navigate. You can't ask someone's mental health history or if they've ever received treatment, or if they have conditions that might affect how they do their job. Something that's really interesting is when we talk about medication. There are places of course, that drug tests that are looking for illegal drugs or substances is permissible. You're allowed to do that. If you get given a drug test and it shows a lawfully prescribed medication, so let's just pretend that somebody has a chronic illness and they take a drug test as part of the conditions of employment, it shows that they're taking opioids to manage chronic pain, that is a confidential medical record. It does not mean that you can do it discriminated against them because that test showed that they are lawfully taking a disability that they've had to disclose because of it. And also don't ask how somebody became disabled. It's viewed as an offensive question to begin with, and in this context, it's actually discriminatory. So I really don't like and try not to, especially as an etiquette thing, don't ask someone what happened to you or what's wrong with you. People can share their story as they see fit and the job interview is definitely not the place to be doing that. Which brings us to a little bit about how we can advocate and be allies for ourselves and for others. When we think about advocacy, I know we think about what this means in a legal context that we're advocating on behalf of our clients, but when we're thinking about advocating for ourselves, it's an awful lot harder than it is advocating for our clients. I am very good at speaking on behalf of groups or speaking alongside other people, but when I have to ask for my own needs or have things met on my own time, oh my gosh, it is impossible it feels like sometimes. And when we think about this, self-advocacy is a movement and it's also a skillset. So basically it allows us to be more independent, to make choices that affect our lives. And when we think about this as a philosophy, it's the movement that's made by and for people with disabilities, making decisions, thinking for themselves and alongside others with disabilities, and really taking control of our lives. A lot of us don't get to have the independence that we want to or can have, whether it's in hiring staff to take care of us as personal care assistance, whether it's something like a guardianship situation or even that our parents or other adults seem to have an awful lot of sway over what it is that we do day in and day out as well. When we think about self-advocacy, we advocate for ourselves at work more often than we think that we might be. That what we might be doing is creating these opportunities and we want to create these opportunities. I want it to be safe for people with disabilities to be able to disclose. This is creating psychological safety that they can basically share this without fear of retribution, without being criticized, without feeling just bad about themselves essentially. We want people to feel like it's okay to be safe and vulnerable and share this information if they so choose. I also like to frame accommodations as conversations. I know that this is a process, but I also like to do this in soft disclosure as well. Regardless, is this idea of how do we have this as a conversation? And the best way that I like to do that is I like to fill in the blanks here on things like I work best when you give me clear instructions. I work best when our meetings have agendas. That's a super easy thing to accommodate and it doesn't really say why I need it. Also, when someone else discloses to you or you're advocating for yourself, make those decisions about who needs to know. I also like to do that too, is think of, okay, I don't want my direct colleague to know, but I need my supervisor to know because that's the person who was in charge of accommodations. We also want to think about those kind of pros and cons of being able to disclose, of being able to advocate for ourselves who we're telling all of these things as well, that sometimes people do treat you differently even if you don't want that. And finally, something that I love about advocating is we can advocate together. One of the coolest things that's ever happened is that we come up with solutions for accommodations as a team or that we implement workplace policies that benefit all of us. One of the very first places I worked had a fragrance-free policy, which meant no perfumes, no colognes, and I thought it was a really interesting thing at first, and I realized it was there because somebody previously had allergies, and it ended up benefiting someone else in the future who struggled with sensory processing and had a sensory disability, and so on and so forth. So there's different things that we could do to be more inclusive of everybody, and sometimes just what turns out to be a simple accommodation might be something that works well for all of us in fact. That is a really interesting, fun and cool thing to think about, at least to me. Which brings me to something that we get to take home, our skillset. How do we become better allies, right? And the first thing that we're going to do when we become better allies is we're gonna acknowledge the entire person. And when we think about this is we're thinking about the whole person including disability, that we don't just view someone as their disability, but we also don't do the "I don't see your disability". That's not the answer either. I've had people say, I don't see your disability because it doesn't seem super obvious to them. I don't look disabled. I look like a regular 20 something for most intensive purposes. And oftentimes I am trying to mask certain traits to appear socially competent. It's a whole other situation that happens for a lot of disabled and neuro divergent people trying to be accepted and avoid bullying or avoid harassment at work and other things as well. So what happens when we acknowledge the whole person is we realize that there are strengths, there are weaknesses, there are things that make them exactly who they are, just like anybody else. That when someone does see my disability, that's great, but I don't want them to think that's all of who I am. And I also don't want them to pretend it doesn't exist either. That there's always somewhere in the middle, kind of like the Goldilocks and the three bears story. There's always something that's just right. In our journeys to becoming better allies, we have the opportunity to be more educated. I love learning about people who think and act and feel differently than I do. And one of those ways I've been able to do that is learning more about disability, culture, rights and community. And to be quite honest, even as an autistic person and a disabled person, I didn't learn that much about my own community for a very long time. I did not meet other people on the spectrum personally until I was a teenager and I went to a conference. I didn't even learn that much about disability rights and culture until college because I did a disability studies minor. That's the only reason I learned any of it. And then there are things I actually learned for the very first time just two years ago actually, because there was a documentary on Netflix called "Crip Camp" that was nominated for Oscars and all sorts of cool stuff that really went through the history of getting Section 504 of the Rehabilitation Act pass, and how that also related to just a bunch of disabled teams who were trying to become independent and getting to have a place that they could be themselves and then eventually they just became activists at some point. It was an incredibly cool film. Highly recommend watching it if you are interested in learning more as well. Something else, if you're at a larger firm, I know some of us are in big law. If you are at a big firm and you have something known as employee resource groups or affinity groups or business resource groups, whatever your firm chooses to call them, or you are in-house and your company has these, if you have one, consider joining. These groups are not just met for people with disabilities or disabled folks. They are also met for allies and people just curious about learning more. If you do not want to join or be a member when they have events in programming, including CLEs or whatnot, be sure to attend just to show support or to learn more as well. If you are at a big firm and you are neurodivergent or disabled or a person with a disability and you want this to happen, consider starting one of these groups because it would go a long way. I promise. One thing we could do is also be a little bit introspective. We all have our own fears and biases. I mentioned I do as well, and sometimes working to unpack them takes a lot of work. I personally am very bad at asking for help because I am afraid that if I ask for help, that I will be viewed as a failure because I have had this idea of independence grown into me, that if I am asking for help because of my disability, I'm a burden and I failed. And I'm learning to kind of work through why I feel that way in particular. And I always... And I think that I'm afraid of being pitied, all this different stuff, and I realized no one is going to pity you if you ask for help. You don't have to do everything by yourself. That is one thing that I am personally getting through with my own fears and biases and that's internalized ableism, which we did not really chat about too much today, but I think about the ableism that we might be feeling and experiencing as well and why we feel the way we do. That's something that only you know the answers to. Another easy thing that we can do is expand who we follow on social media. I know we love influencers and influencer culture sometimes, but I personally think the easiest way to receive passive education and learn more is diversifying our feeds. So something that I like to do is follow people who do not look or sound like me. So people who might have different disability experiences, people from different cultures, from different parts of the world. I've been expanding and following a lot more people with physical disabilities these days because that's an experience I know nothing about because I don't have that experience. And it makes it easier for me to hopefully empathize and learn a little bit more about the issues that, that community is facing in particular. I am very grateful for all the many content creators who do put that time and effort out there. And if you are always looking to expand your feed, I'm always happy to give you some suggestions as well. Or you can also just stay in touch with me outside of the CLE, and I will do my best to hopefully share things on my own social to help educate or just to help other folks as well and point them in the right direction. I also like to try to avoid making assumptions on the basis of disability whenever I can. So I try not to assume what people can and can't do. I like to look at things as kind of a three bucket process when we think about what we assume on disability, and it's really a hard bucket to do sometimes. So please bear with me for this example, is there are things that I feel are impossible to do because of my disability. Things that are very hard for me to do because of my disability, and things that like many other people, I simply am unmotivated, I'm not good at or do not want to do that have no relation to my disability. And think about any task that maybe that you're thinking of that comes up, I don't know, let's call it cleaning my house. You might put cleaning my house into one of those three buckets, that depending on you, you might put that in the things I don't wanna do that have no relationship to disability or just things you just don't wanna do, not things that are hard for you or things that are physically or mentally impossible for you. I might place that in the bucket of things that are very hard for me, because as much as I would like to do it and I do have the motivation, sometimes my brain makes it very difficult to get done. So I would put that in that. But try to think about that with most tasks. And I know that's something even if you ask other disabled people to do, you're not gonna always get a perfect answer or sometimes we're still figuring it out ourselves, but it's something that I like to do to avoid making assumptions, is go, is this something that's very hard? Is this something that's impossible? Or is this just something that is a human thing that just isn't that exciting or interesting, or they just don't want to do for whatever the reason? As for compliance and resources, there's so many great things out there. There's a lot of cool stuff from the Department of Labor as well, and there's also a sub office underneath the DOL called the Office of Disability Employment Policy or ODEP, Disability Employment Policy. And ODEP all sorts of fantastic resources, webinars, toolkits, et cetera. And if you really want to be a good ally to the individuals in your life as well and get to know them and be helpful to them, you can always ask a question like, how can I support you? Especially if they share something or they're mentioning that something is difficult, how can I support you goes a long way and is one great way that you're able to say that I'm here for you and let people share what they feel comfortable with on their terms. It really does create this community of care and cultural competence that we've been chatting about throughout our time together. Thank you so much for learning with me. And if you want to say hello to me offline, feel free to send me an email at [email protected]. You can connect with me on LinkedIn, Facebook, Twitter, or Instagram. I'm looking forward to keeping this conversation going and seeing what you learned next and what you're hoping to accomplish in your disability inclusion journey. Thank you so much.

Presenter(s)

HMJ
Haley Moss, JD
Attorney and Neurodiversity Expert

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                                                      November 23, 2024 at 11:59PM HST

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                                                      October 19, 2024 at 11:59PM HST

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                                                        December 16, 2024 at 11:59PM HST

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                                                        December 31, 2025 at 11:59PM HST

                                                        Status
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                                                        Credits
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                                                        October 19, 2024 at 11:59PM HST

                                                        Status
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                                                        Credits
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                                                        January 4, 2025 at 11:59PM HST

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                                                          October 19, 2024 at 11:59PM HST

                                                          Status
                                                          Available
                                                          Credits
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                                                          Available until
                                                          Status
                                                          Unavailable
                                                          Credits
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                                                          October 19, 2024 at 11:59PM HST

                                                          Status
                                                          Available
                                                          Credits
                                                          • 1.0 general
                                                          Available until
                                                          Status
                                                          Unavailable
                                                          Credits
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                                                            Not Offered
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                                                            October 19, 2025 at 11:59PM HST

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                                                            Approved
                                                            Credits
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                                                              Credits
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                                                                Not Offered
                                                                Credits
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                                                                  Not Offered
                                                                  Credits
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                                                                    Credits
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                                                                      October 19, 2024 at 11:59PM HST

                                                                      Status
                                                                      Approved
                                                                      Credits
                                                                        Available until
                                                                        Status
                                                                        Not Offered
                                                                        Credits
                                                                        • 1.0 general
                                                                        Available until

                                                                        October 19, 2024 at 11:59PM HST

                                                                        Status
                                                                        Available
                                                                        Credits
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                                                                        October 19, 2027 at 11:59PM HST

                                                                        Status
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                                                                        Credits
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