Dalton, Abbey; Alexander, Ella; Wade, Natalie --- "No more hiding in plain sight: The need for a more inclusive legal profession" [2022] PrecedentAULA 37; (2022) 171 Precedent 4

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NO MORE HIDING IN PLAIN SIGHT

THE NEED FOR A MORE INCLUSIVE LEGAL PROFESSION

By Abbey Dalton, Ella Alexander and Natalie Wade

This article explores best practice for law firms employing and working with disabled lawyers^[1] in Australia and makes the case for creating more inclusive workplaces. The first section sets out the current experience facing disabled lawyers, informed by existing statistics and anecdotes. The article then outlines how the current situation falls short, with reference to both federal and state-based legislation. The article concludes with recommendations for reform, drawing on examples from countries overseas where more attention has been directed towards accommodating disabled lawyers.

CURRENT STATE OF AFFAIRS

The Australian legal profession does not have a culture of celebrating people with disability or embedding inclusive practices. However, this does not reflect a lack of participation on the part of disabled lawyers and legal professionals throughout the country. We cannot state with certainty the number of disabled lawyers practising in Australia at the time this article was written; that statistic is not routinely collected through demographic surveys of the profession. Nevertheless, an optional survey for NSW practitioners when renewing their practising certificates in 2020 found that only 6 per cent of practitioners identified as living with disability, far below the rate of 20 per cent of disabled people within society. This is an unsurprising statistic given that Australia ranks 21st out of 29 countries in the OECD for employment participation of disabled people. Disabled Australians are twice as likely to be unemployed as their non-disabled peers,^[2] and earn approximately 70 per cent of their income.^[3]

In addition, a barrier to statistically capturing the participation of disabled legal professionals is the requirement to identify as disabled. Historically, Australian disability public policy and culture has been built on a medical model^[4] which disseminated conversations of shame and the need to be cured. However, following Australia’s ratification of the Convention on the Rights of Persons with Disabilities (CRPD)^[5] in 2008, the social model of disability has sought to replace the medical model, reframing the construct of disability to recognise that:

‘attitudes, practices and structures can be disabling and act as barriers preventing people from fulfilling their potential and exercising their rights as equal members of the community.’^[6]

In addition, the increasingly popular human rights model of disability emphasises that ‘impairment must not be used as an excuse to deny or restrict people’s rights’.^[7] These models have led to embracing identity-first language and giving permission to disabled people to identify as disabled. Identification and disclosure of disability are very vexed matters in the Australian legal profession, as will be discussed throughout this article.

Traditionally, the legal profession was established for and has been dominated by white, non-disabled, straight, middle-class, cisgender men. While the traditional demographic of the profession is being actively and successfully changed, with more than 50 per cent of Australian solicitors identifying as women since 2021^[8] and greater participation of a diverse range of people in the profession overall, a change in demographics is more than a statistic. Simply having a more diverse range of people joining the legal profession does not make it more inclusive. We must change the systems and structures on which our profession has been built. The following are all examples of the systems and structures that will continue to passively keep disabled lawyers out of the profession, unless we actively change them:

• physically inaccessible courtrooms and chambers, due to the presence of steps or the absence of hearing loops;

• law practice business models demanding five days’ work a week, with billable targets that see the lawyer working 10–12 hours per day; and

• admission rules requiring incoming practitioners to complete a capacity statement identifying disabilities with their disclosure statement, as an additional requirement to show they are a fit and proper person to practise.^[9]

In facing the suite of structural and systemic barriers within the legal profession, disabled lawyers have survived and thrived either through individual advocacy at a local level or, frankly, by hiding in plain sight. Legal professionals with self-evident disabilities, for example wheelchair users or blind people, have negotiated workplace adjustments and assimilated into the profession where possible to ensure their equal participation. The adjustments negotiated include having the staff kitchen modified for use by a wheelchair user, and having screen reading software provided on the work computer for a person who is blind.

Undoubtedly, legal obligations under anti-discrimination laws such as the Disability Discrimination Act 1992 (Cth) have provided a steady backing for individuals who want to advocate for themselves, ensuring they can overcome some (though not all) of the barriers they face. However, the authors have heard anecdotally since establishing the Disabled Australian Lawyers Association (DALA) that those with invisible disabilities (who make up some 90 per cent of the disabled population) have not felt welcome to identify or disclose their disability for fear it would negatively impact on, or even end, their participation in the profession. This is consistent with research conducted by the Lawyers with Disabilities Division of the Law Society of England and Wales and Cardiff University in 2019 (UK Research).^[10] In this study, a large number of disabled solicitors, barristers and paralegals in the UK were surveyed about their experiences in the profession. Only 8.5 per cent of solicitors and paralegals and one barrister were confident to disclose their disability to their employer at the time of their job application. Moreover, 54 per cent of survey participants believed their career prospects were inferior to those of their non-disabled colleagues. Disabled lawyers are hiding out of necessity, not by choice or preference. This means they have gone without the adjustments they need and have masked an important part of their identity in order to participate in the profession.

The authors have observed, in the process of establishing DALA, that there is significant interest in how to support the participation of disabled legal professionals.^[11] This interest has been prevalent among members of the profession, courts and representative bodies such as Law Societies and Bar Associations. Their interest has been demonstrated by their engagement in conversations about what they can do not only to offer inclusive workplaces but also to tackle the systemic and structural barriers preventing participation of disabled legal professionals. ^[12]

In stark contrast, DALA has heard stories from disabled legal professionals who face everyday incidents of disability discrimination in the workplace or live in fear of being ‘found out’. It is evident that the systems, structures and culture within our legal profession have not been built with us disabled legal professionals in mind. And they have not yet shifted towards encouraging and ensuring our participation going forward.

ISSUES CREATED BY BARRIERS TO PARTICIPATION

A failure to actively include and accommodate disabled lawyers gives rise to a range of issues for law firms and organisations.

From a pragmatic perspective, failing to adequately provide reasonable adjustments to disabled lawyers and candidates exposes firms to the risk of discrimination claims under both federal and state-based legislation.^[13] It is important to recognise that protections for disabled individuals exist, and a growing awareness of how these provisions can be leveraged may give rise to greater exercise of these rights. Moreover, public authorities in some jurisdictions also have a requirement to give proper consideration to human rights when making decisions,^[14] including consideration of rights to equality and non-discrimination, which necessarily include equality for disabled individuals.

Notwithstanding the above, the failure to create inclusive workplaces goes well beyond legal and reputational risk. In an era of increased innovation and development, disabled lawyers are an untapped resource and can provide invaluable insights to elevate legal practice. Peer-reviewed research consistently finds that disabled employees ‘work harder, are more productive, more loyal, and show lower absenteeism rates’ than non-disabled employees. In addition, disabled employees have been found to have superior problem-solving abilities due to their experiences with overcoming barriers in their day-to-day lives.^[15]

While the demographics of our profession may not reflect the percentage of disabled people within the Australian population, this does not change the demographics of the society in which practitioners operate. In a country in which 18 per cent of consumers have disabilities,^[16] employing lawyers who reflect the needs, values and identities of clients is integral to providing excellence in client service and maintaining a competitive advantage. Even if disabled lawyers do not work directly on matters, having disabled employees ultimately leads to a more empathetic, disability-confident workforce, which in turn improves the services provided to a diverse range of clients.^[17]

Following a mass disabling event such as the COVID-19 pandemic, it is also likely that previously able-bodied employees may require adjustments to the ways in which legal practice is currently structured. Failing to adopt universal design will therefore limit productivity within the workforce. Universal design is ‘the design of products, environments, programmes and services to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design.’^[18] This requires an understanding that accommodations such as flexible working arrangements and accessible materials, which currently are seen to benefit only a small number of disabled employees, may actually benefit others who are newly disabled or require these adjustments due to childcare responsibilities, competing professional commitments or even mere personal preference. Where these options are not available, individuals are required to undertake the often arduous process of requesting adjustments.

Finally, a failure to appropriately adopt disability inclusion strategies means the Australian legal profession will fall behind our international counterparts. This is particularly crucial given the interconnected nature of the global community and the emphasis on cross-border collaborations and transactions. The UK has had a Disability Division in its Law Society for over 30 years. Canada has afforded disabled people constitutional protection under the Canadian Charter of Rights and Freedoms since 1982, thanks to a campaign by the Council of Canadians with Disabilities and other disability advocacy groups.^[19] India has taken great steps towards disability inclusion, including removing barriers in the courtroom, and has several high-profile disabled judges as a result.^[20] If the Australian legal profession seeks to be on par with our international colleagues, we must match them in our commitment to disability inclusion.

MOVING TOWARDS A MORE INCLUSIVE PROFESSION

There are clear steps our profession can take to become more inclusive of disabled lawyers.

Removing barriers to entry in the profession

The point of entry to the profession can pose significant barriers for disabled law students and graduates. Creating targeted positions in the form of work experience opportunities, internships, cadetships and graduate roles is recognised as an important step to improving the inclusion of other minority groups in the profession, and should also be extended to disabled law students and graduates.^[21] At the time of writing this article, the County Court of Victoria has partnered with DALA to offer three internships to disabled law students, and we are hopeful that other courts and legal organisations will follow suit. Targeted positions should also exist in senior legal roles, especially in roles involving disability policy. Employers should also offer part-time and flexible work options at the graduate level. For example, in the UK a number of leading law firms are offering part-time training contracts in a cross-firm initiative called ‘Project Rise’.^[22]

Furthermore, it is advisable for employers to remove from online job application forms any questions requiring applicants to disclose their disability. A large number of disabled lawyers in DALA’s network have encountered such questions, which are often perceived as ways of ‘screening out’ candidates with disabilities, and can foreseeably result in discrimination or unconscious bias.

In the same light, admission bodies should consider the appropriateness of requiring candidates who identify as disabled to provide medical evidence of their ability to carry out the inherent requirements of legal practice, in order to join the profession. This requirement indicates a prima facie assumption that disabled candidates may be unfit to practise law, simply by virtue of their disability.

Ensuring the success of disabled lawyers

We must also ensure that disabled lawyers are afforded the same opportunities as their non-disabled colleagues to participate, develop skills and progress in the profession.

This begins with ensuring our physical and digital environments are designed with disabled people in mind. Legal organisations should ensure any new premises comply with the Disability (Access to Premises – Buildings) Standards 2010 (Cth), and that existing premises are retrofitted to these same standards wherever possible. In terms of digital accessibility, organisations should ensure that their existing software can be read by screen readers, and that all documents and other communications are provided in text-searchable format and are otherwise compliant with Web Content Accessibility Guidelines. These measures will also improve the accessibility of our legal system for disabled people in the broader community.

A simple measure that courts, tribunals and other legal bodies can take to improve the inclusion of disabled lawyers is to provide an opportunity for representatives to specify their accessibility needs when filing initiating processes or notices of appearances. This has already been implemented in a number of jurisdictions. For example, the form to be used for filing a complaint with the Australian Human Rights Commission on behalf of a client has sections in which both applicants and representatives can specify any adjustments they require to participate in the complaints process.^[23] Similarly, the CourtsSA Portal^[24] allows the practitioner to specify any accessibility needs of the practitioner and/or the party. For example, a practitioner may indicate that the matter will need to be held in a courtroom that is wheelchair accessible, or that they need court sessions to be held at certain times of day so they can attend regular medical appointments or fit appearances around other essential support or care.

Widespread implementation of these measures by all courts and tribunals would not only ensure disabled lawyers are able to participate in legal proceedings and provide proper representation for their clients, but would also send a strong message that courts anticipate and welcome the participation of disabled lawyers in the profession. This will foster an attitudinal change towards a profession that sees the inclusion of disabled lawyers as crucial to creating a profession that is representative of the diversity of the wider community.

Organisations should also ensure they are implementing best practice when it comes to providing workplace adjustments. According to the UK Research, 60 per cent of surveyed solicitors and paralegals reported that inaccessible working environments limited career opportunities, and 85 per cent stated that disability-related pain and fatigue are exacerbated by inflexible working arrangements. Following these research findings, the organisations involved in the research created an excellent guide to best practice, which includes examples of the types of adjustments law firms are providing in the UK.^[25] These guidelines are equally applicable in Australia.

Given the hesitancy to disclose disability and the likelihood that larger portions of the population will experience changes in their abilities as a result of conditions such as Long COVID, it is strategic to implement universal design to ensure that legal practice can accommodate the changing landscape of the profession and ensure retention of talent. Employers should have formal workplace adjustment policies which set out the processes for seeking workplace adjustments. These policies should not only be widely communicated to existing employees, but should also be made automatically available to all job applicants at the application stage. Industry event invitations should ask all invitees as a standard question whether they have any accessibility needs.

An organisation that has policies and procedures in place for disabled employees and job applicants shows that it anticipates and welcomes disabled people. Employers should state in their job advertisements that they welcome applications from candidates with disabilities. These measures will serve to minimise the concerns of an employee or candidate that they will be discriminated against if they disclose their disability and/or seek adjustments. To understand the efficacy of implementing these types of policies, one can consider the proliferation of parental leave policies available within the profession, which are a key tool used by organisations to attract and retain diverse talent, and have been a critical step towards gender equality.

Working towards attitudinal changes

While the steps outlined above will go some way to ensuring junior members of our profession are able to participate in our legal workplaces, they will not succeed unless the profession works to remove attitudinal barriers to disabled lawyers. In the UK Research, 60 per cent of surveyed solicitors and paralegals reported ill-treatment at work in the form of demeaning comments, exclusion and discrimination.^[26] Many DALA members have reported similar experiences, with a large number saying that they have been given fewer opportunities for professional development than their non-disabled colleagues. Examples include being denied opportunities to go on secondment, rotate through different teams, go to court, work with particular clients or even work on more challenging matters. In one instance, a candidate disclosed their disability after being made a job offer. Before they even started working for the organisation, they were told that they might be better suited in a legal support role such as in the firm’s library, in spite of receiving top marks at university.

These kinds of limitations are often imposed not because of any physical, digital or temporal barriers caused by inflexible work hours, but rather because of assumptions that disabled lawyers are less capable than their non-disabled colleagues and that they must be ‘protected’ from challenging legal work: ‘the soft bigotry of low expectations’.^[27] Such paternalistic attitudes arise from the widely held ‘charity’ model of disability, which sees disabled people as objects of pity who need ‘help’. We must move beyond these anachronistic and limiting biases and examine how we can remove barriers to equal participation in our profession and wider society so that disabled people are able to reach their full potential.

Improving attitudes towards the inclusion of disabled practitioners also requires us to increase the visibility of disabled lawyers and disability issues within our legal organisations and the profession as a whole. To this end, legal organisations can take simple steps internally, including holding events to celebrate occasions such as International Day of People with Disability. A number of firms and other legal organisations have also created Disability Action Plans (DAPs).^[28] Similarly to Reconciliation Action Plans, DAPs represent an organisation’s commitment to disability inclusion by specifying its goals, and the concrete steps it will take to achieve those goals. Organisations can also establish staff committees to work on disability inclusion initiatives and celebrate the achievements of their disabled employees.

Using appropriate language to describe the disability community is also important: the use of euphemisms such as ‘differently-abled’ may be taken to suggest that it is inappropriate or shameful to be disabled. The use of appropriate language and other such measures would go a long way to creating welcoming environments where disabled employees feel safe and valued and are able to thrive.

Finally, employers and representative bodies such as Law Societies and Bar Associations must begin to systematically gather data about how many of their employees and members identify as having a disability, as well as how many of them are experiencing disability pay gaps. It is only with this kind of data that we can measure the impact of disability inclusion initiatives in the same way we have been able to track the increase of women and First Nations practitioners in the profession over time.

CONCLUSION

It is evident that the Australian legal profession seeks to actively embody diversity and inclusion; however, these efforts have often failed to consider the prevalence of disabled lawyers. By not embracing the valuable and nuanced contributions disabled lawyers offer, the legal profession is limiting its opportunities for growth and innovation.

This article has outlined some of the many practical steps that legal organisations can take to improve disability inclusion. When those steps are taken, there will be no more need to hide in plain sight.

In March 2021, the authors co-founded the Disabled Australian Lawyers Association (DALA), a national association advocating for the increased representation and inclusion of disabled people in the legal profession. The views expressed in this article are the authors’ own and do not reflect the views of the authors’ employers.

DALA on LINKEDIN: <https://www.linkedin.com/company/disabled-australian-lawyers-association/posts/?feedView=all&viewAsMember=true>.

Abbey Dalton is a solicitor in the Human Rights team at the Victorian Government Solicitor’s Office.

Ella Alexander is a Special Counsel at Makinson d’Apice Lawyers in Sydney.

Natalie Wade is a disabled legal practitioner in Adelaide, South Australia and is the Founder and Principal Lawyer of Equality Lawyers.

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^[1] Both person-first (‘person with disability’) and identity-first (‘disabled person’) language are used to refer to the disability community, usually based on personal preference surrounding self-identification. Throughout this article, we use both terms to reflect the variation of usage within the disability community.

^[2] Australian Institute of Health and Welfare (AIHW), People with disability in Australia 2020: In brief (Report, 2 October 2020) <https://www.aihw.gov.au/reports/disability/people-with-disability-in-australia-2020-in-brief/contents/employment>.

^[3] This is the lowest rate in the OECD countries. See ‘Disability and health inequalities in Australia: Research summary’, Victorian Health Promotion Foundation, 2012, 5 <https://www.vichealth.vic.gov.au/-/media/ResourceCentre/PublicationsandResources/Health-Inequalities/VH_Disability-Summary_web.pdf?la=en&hash=3347870D3B7ADF0227C5B7B831E02A2ED27AE31E>.

^[4] L Humpage, ‘Models of disability, work and welfare in Australia’, Social Policy & Administration, Vol. 41, No. 3, 215–31, 215, 222.

^[5] United Nations, Department of Economic and Social Affairs, Disability, United Nations Convention on the Rights of Persons with Disabilities, 2006 (CRPD) <https://www.un.org/disabilities/documents/convention/convention_accessible_pdf.pdf>.

^[6] Australian Government, Australian’s Disability Strategy 2011—2031, 5 <https://www.disabilitygateway.gov.au/sites/default/files/documents/2021-11/1786-australias-disability.pdf>.

^[7] Disability Advocacy Resource Unit, HOW WE TALK ABOUT DISABILITY MATTERS! Understanding models of disability (Information sheet), 3 <https://www.daru.org.au/wp/wp-content/uploads/2019/03/Human-rights-info-sheet-for-website.pdf>.

^[8] M Pelly, ‘It’s official, women take over the legal profession’, Australian Financial Review, 14 July 2021 <https://www.afr.com/companies/professional-services/it-s-official-women-take-over-the-legal-profession-20210712-p588wn>.

^[9] Legal Profession Act 2006 (ACT), s11(n); Legal Profession Act 2007 (Qld), s9(1)(o); Legal Profession Act 2007 (Tas), s9(m); Uniform Admission Rules 2015 (NSW and Vic), r 10(1)(k); Legal Profession Act 2008 (WA), s8(m); Legal Profession Act 2006 (NT), s11(1)(m).

^[10] D Foster and N Hirst, ‘Legally disabled? The career experiences of disabled people working in the legal profession: Executive summary of key findings and recommendations’, Cardiff Business School, 2019 <http://legallydisabled.com/wp-content/uploads/2020/01/Cardiff-uni-Legally-Disabled-Executive-Summary-A4-FINAL.pdf> .

^[11] DALA has been contacted regarding inclusion training, mentoring programs and developing Disability Action Plans for law firms and legal services as ways to support the participation of disabled legal professionals in workplaces.

^[12] The DALA Co-Founders have been invited to speak at a range of events, including events hosted by Victorian Women Lawyers, the Law Society of NSW, and various universities.

^[13] For example, claims under the Disability Discrimination Act 1992 (Cth), Equal Opportunity Act 2010 (Vic) and equivalent equal opportunity legislation in other states and territories.

^[14] Charter of Human Rights and Responsibilities Act 2006 (Vic), s38; Human Rights Act 2019 (Qld), s58; Human Rights Act 2004 (ACT), s40B.

^[15] T Aichner, ‘The economic argument for hiring people with disabilities’, Humanities and Social Sciences Communications, Vol. 8, No. 22, 2021, 1–4 <https://www.nature.com/articles/s41599-021-00707-y>.

^[16] See AIHW, People with disability in Australia (Report, 2 October 2020) <https://www.aihw.gov.au/reports/disability/people-with-disability-in-australia/contents/people-with-disability/prevalence-of-disability>.

^[17] S Lindsay, E Cagliostro, M Albarico, N Mortaji and L Karon, ‘A systematic review of the benefits of hiring people with disabilities’, Journal of Occupational Rehabilitation, Vol. 28, No. 4, 2018, 634–55 <https://pubmed.ncbi.nlm.nih.gov/29392591/>.

^[18] CRPD, above note 5, Article 2.

^[19] The Law Society of British Columbia, Lawyers with Disabilities: Identifying Barriers to Equality (Report, 2000) <https://www.lawsociety.bc.ca/Website/media/Shared/docs/publications/reports/DisabilityReport.pdf>

^[20] See for example R Bajaj, ‘Fighting together: A blind lawyer on his journey clerking for Supreme Court Justice Chandrachud’, 7 September 2021 <https://scroll.in/article/1004657/fighting-together-a-blind-lawyer-on-his-journey-clerking-for-supreme-court-justice-chandrachud>.

^[21] Australian Human Rights Commission, IncludeAbility, Attracting and recruiting people with disability to your organisation <https://includeability.gov.au/resources-employers/attracting-and-recruiting-people-disability-your-organisation>.

^[22] M Rosanes, ‘Cross-firm initiative seeks to encourage part-time training in UK's legal sector’, Australasian Lawyer, 13 November 2021 <https://www.thelawyermag.com/au/news/general/cross-firm-initiative-seeks-to-encourage-part-time-training-in-uks-legal-sector/316437>.

^[23] Australian Human Rights Commission, Complaint Form, 2 <https://humanrights.gov.au/sites/default/files/AHRC%20complaint%20form%20%28v2017-06%29.pdf>.

^[24] See <https://courtsa.courts.sa.gov.au/>.

^[25] See The Law Society UK, Reasonable adjustments in organisations – best practice for disability inclusion (Report, 24 September 2021) <https://www.lawsociety.org.uk/topics/lawyers-with-disabilities/reasonable-adjustments-in-organisations-best-practice-for-disability-inclusion>.

^[26] N Rose, ‘Disabled lawyers “face daily discrimination”’, Legal Futures (Blog, 24 January 2020) <https://www.legalfutures.co.uk/latest-news/disabled-lawyers-face-daily-discrimination>.

^[27] Phrase coined by US columnist Michael Gerson.

^[28] See for example the Disability Action Plans of these firms: Clayton Utz <https://www.claytonutz.com/ArticleDocuments/501/Clayton-Utz-Accessibility-and-Inclusion-Action-Plan-2019.pdf.aspx?Embed=Y>; Gilbert + Tobin <https://cdn.bfldr.com/FM3YDCO2/at/63pc23955gtjbkmrcww8qrg/Gilbert___Tobin_Disability_Inclusion_and_Access_Plan_2022-2024.pdf>; and Victoria Legal Aid

<https://www.legalaid.vic.gov.au/disability-action-plan>.