Diversity – Does it Matter in the Legal Profession?

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Many hands of all different colors are outstretched and overlapping

By: Matthew Dietz

The Florida Bar is fully committed to the enhancement of diversity within the Bar, the legal profession, legal education, and in the justice system, and affirms its commitment toward a diverse and inclusive environment with equal access and equal opportunity for all.

–The Florida Bar Board of Governors, May 2010

On June 23, 2015, the Supreme Court issued their ruling in Fischer v. University of Texas at Austin, Case No. 14-981, upholding race conscious admissions policies at the University of Texas, as long as it is only a factor in a holistic review as a means of obtaining the educational benefits that flow from student body diversity.     Justice Kennedy issued a muted opinion from the Court touting the benefits of diversity and quoted from a prior decision stating:

[T]he compelling interest that justifies consideration of race in college admissions is not an interest in enrolling a certain number of minority students. Rather, a university may institute a race-conscious admissions program as a means of obtaining “the educational benefits that flow from student body diversity.” … As this Court has said, enrolling adverse student body “promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races.” Equally important, “student body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society.”

Diversity also promotes the image of impartial justice, knowing that lawyers and judges that have the panoply of cross-racial, and cross-cultural experiences will not have deep seated stereotypes or prejudices against persons because of who they are, what they believe, or what they look like. However, the diversity within the Florida Bar and the Florida Judiciary does not reflect the population of Florida. If one looks at the statistics of the Florida lawyers and judiciary, as compared to the population of Florida, it is elemental why it is important to ensure that diversity is encouraged to ensure the appearance of justice and the destruction of stereotype.

Category Percent lawyers in Florida[1] Percent Judges in Florida[2] Percent in Jud. Nominating Commission[3] Percent Population in Florida[4]
White/Caucasian 83 84.1 86 55.3
Hispanic 10 8.9 9 24.5
African American/Black 3 6.7 4 16.8
Asian/Pacific Islander 1 .3 2.9
Other Race/Ethnicity 3 2.5
LGBT 3 3.5
Persons with Disabilities 2 13.1

Why does it matter for persons with disabilities?

In an interview, Mr. Trump said U.S. District Judge Gonzalo Curiel had “an absolute conflict” in presiding over the litigation given that he was “of Mexican heritage” and a member of a Latino lawyers’ association. Mr. Trump said the background of the judge, who was born in Indiana to Mexican immigrants, was relevant because of his campaign stance against illegal immigration and his pledge to seal the southern U.S. border. “I’m building a wall. It’s an inherent conflict of interest,” Mr. Trump said.[1]

 

Mr. Trump has stereotyped a judge solely because of his ancestry and a stereotype that the judge may not be in line with his views.  With a person with a disability, each lawyer, juror, and the judge carries with them a lifetime of stereotypes and misconceptions about persons with disabilities. Most of them start with….”I once had a friend that had a family member that…”  Accordingly, the person’s whole perception of disability is built around the abilities of one person, or, even worse, what people see on television.  So essentially, there is the myth of the “super-crip” or the incapacitated person.

The “supercrip” as superhuman that is lauded by the able-bodied as the inspirational person who “overcame” their disability.   If you have a disability in one area, then you more than make up for it in all other ways. If you are blind, you can identify a person’s footfalls; if you are deaf, you can read lips from two miles away; if you are autistic, you are a mathematical savant.  It is “inspirational” for a person who has a disability to be successful in society, when, in truth, persons with disabilities do not need to act as tools to inspire, but just to live.

On the other hand, the incapacitated person, who is not able to be productive and is essentially invisible is as common.  The person who is shuttered in a nursing home and neglected because society does not provide access.  Society considers these folks “better off” where they can be taken care of, as they have nothing to contribute to society.

Both of these stereotypes are pernicious.

So, as a trial lawyer for a disability related claim, the most difficult part is dealing with these stereotypes and educating my colleagues in the legal profession that people with disabilities are people, just like them.  We all need assistance at one time or another, just like them.  We all need accommodations at one time or another, and we all have something to contribute.

But, when there is two percent of lawyers who have disabilities, a negligible number of judges with disabilities, and no active recruitment of persons with disabilities in law schools, it’s difficult to say to my clients that this judge or lawyer has ever had contact with a deaf person or a blind person.  In every single one of my cases involving a deaf person regarding not being able to get an interpreter for a critical situation in his or her life, the deposition of that deaf person usually includes a detailed description of how a deaf person uses a videophone, drives, or other daily living activities.

So, when Justice Kennedy states educational diversity “promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races.”  The same concept includes disability, and disability related stereotypes and attitudinal barriers against stereotypes must be broken down.

[1] http://www.wsj.com/articles/donald-trump-keeps-up-attacks-on-judge-gonzalo-curiel-1464911442

[1]2015 Florida Bar Membership Opinion Survey –  In December 2015, The Florida Bar sent an online survey link to a random sample of 3,078 in-state and out-of state, eligible members. By the cut-off date of December 30, the Bar had received 1,074 completed questionnaires, for a response rate of 35%. This response rate is acceptable for this type of lengthy online survey. https://www.floridabar.org/TFB/TFBResources.nsf/Attachments/4ECB247149A8546C85257F41007B6479/$FILE/2015%20Membership%20Opinion%20Survey%20-%20Final%20Report.pdf?OpenElement

[2] The Florida Bar President’s Special Task Force to Study Enhancement of Diversity  in the Judiciary and on the JNC’s, found at https://www.floridabar.org/TFB/TFBResources.nsf/Attachments/A4E41688279C883585257CE1004A0B9E/$FILE/Appendices%20to%20Task%20Force%20Report.pdf?OpenElement

[3] http://www.floridabar.org/TFB/TFBPublic.nsf/WNewsReleases/4F2B3E1B6C00CB3785257C8B00671B0B?OpenDocument

[4] US Census Quick facts for Florida information, found at  https://www.census.gov/quickfacts/table/DIS010214/12.

For Disability Statistics – ACS Disability Statistics 2010-2014, found at http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_14_5YR_S1810&prodType=table

For LGBT statistics – http://www.lgbtmap.org/equality_maps/profile_state/10

 

Can Judges from the Florida Supreme Court get a Reasonable Accommodation for a Disability?

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By: Matthew Dietz

Chief Justice Jorge Labraga

Chief Justice Jorge Labraga

On Monday, September 14th, Florida Supreme Court Chief Justice Jorge Labarga, 62, underwent successful surgery for kidney cancer at Shands Hospital in Gainesville. Doctors had discovered the cancer in its early stages through routine blood tests earlier this year. They advised him to have the kidney removed. Justice Labarga was expected to be hospitalized for seven days. However, after surgery, Justice Labarga began working at his job remotely, with Barbara Pariente, another cancer survivor, serving as acting chief justice during any time he is incapacitated. According to the Court, “Doctors found no signs that the cancer had spread and predict a full and quick recovery for Florida’s 56th Chief Justice and its first of Hispanic descent.”

When Justice Barbara Pariente underwent her battle with breast cancer in 2003, she had a 14-hour double mastectomy and reconstructive surgery. After choosing an aggressive treatment and chemotherapy, Justice Pariente continued to sit on the bench while she was undergoing her cancer treatment. She decided to bare her soul and her scalp from the bench when she decided that she was not going to hide the fact that she had cancer:

During Pariente’s liberating courtroom debut, sans wig, there was a Supreme Court ceremony to induct new members to The Florida Bar. In his speech, then Bar President Miles McGrane made references to heroes in the law Atticus Finch and Chesterfield Smith. And then with a nod to Justice Pariente, he said, “I am so honored and pleased that you are doing what you’re doing for your cause. You are a hero to me, and, I think, everyone here.” Clearly touched by his remarks, Pariente’s eyes glistened with tears as the spectators broke into applause.

According to Eleanor Hunter, executive director of the Florida Board of Bar Examiners, Pariente never missed an oral argument throughout her cancer treatment. She also participated in all conferences, including one by telephone and one video conference. Hunter said: “The most remarkable thing to me is while she sat at chemotherapy, she took a briefcase of her work, reading over cases and briefs, with an IV dripping in her arm.”

Justice Barbara J. Pariente

Justice Barbara J. Pariente

Work was not even a question for either Justice Labarga or Justice Pariente. It was what each chose to do. Last month, the DIG newsletter contained an article about the Equal Employment Opportunity Commission’s new case with DIG client Gregorio Reyes, who was fired from his job while he was recovering from prostate cancer. In all pronouncements by the Supreme Court and the press, the fact that the Justices were returning to work, and that they were able to continue their jobs with a minimal accommodation, appears merely to be an afterthought. While it may be an afterthought for the Florida Supreme Court, it is not for most employers who view cancer and chemotherapy as a reason to question an employee’s ability to work during and after cancer treatment.

Even when the prognosis is excellent, like that of Justice Labarga, some employers expect that a person diagnosed with cancer will take long absences from work or be unable to focus on job duties. The Americans with Disabilities Act protects persons who currently have cancer, or have cancer that is in remission, because they are substantially limited in the major life activity of normal cell growth or would be so limited if cancer currently in remission was to recur. (See 29 C.F.R. §§1630.2(j)(3)(iii) and 1630.2(j) (1)(vii)). However, cancer is not identical for all persons, and the symptoms and side effects depend on many factors, including the primary site of the cancer, stage of the disease, age and health of the individual, and type of treatments. The most common symptoms and side effects of cancer and/or treatment are pain, fatigue, problems related to nutrition and weight management, nausea, vomiting, hair loss, low blood counts, memory and concentration loss, depression, and respiratory problems.

If an employee reveals that he or she has or had cancer, the employer may not ask any questions about the condition, unless: the employer reasonably believes that he or she will require an accommodation to perform the job, the employer observed performance problems, and the employer reasonably believes that the problems are related to a medical condition. In any event, any inquiry or discussions should remain confidential.

For a lawyer or a judge, the accommodations necessary to do the job are relatively simple. The accommodations include working (or even appearing at hearings) from remote locations, allowance of breaks, or a rest area during the day, and time off to go for treatment or to the doctor’s office.

There are other protections that may be available, such as Family and Medical Leave Act, 29 U.S.C. § 2601, and some law firm or other state laws, which may provide medical leave for larger employers or governmental entities.

So, accommodations for a disability is readily achievable for any lawyer.

For more information, see

Questions & Answers about Cancer in the Workplace and the Americans with Disabilities Act (ADA)

Accommodation and Compliance Series: Employees with Cancer

Reasonable Accommodations for Attorneys with Disabilities, by Matthew W. Dietz

All of the history of Justice Pariente’s condition is from Jan Pudlow’s 2004 in the Florida article – Barbara J. Pariente, Chief Justice of the Florida Supreme Court
.