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Excerpted From: Shain A. M. Neumeier and Lydia X. Z. Brown, Beyond Diversity and Inclusion: Understanding and Addressing Ableism, Heterosexism, and Transmisia in the Legal Profession: Comment on Blanck, Hyseni, and Altunkol Wise's National Study of the Legal Profession, 47 American Journal of Law & Medicine 76 (2021) (33 Footnotes) (Full Document)
Far too many--if not most--of us in the legal profession who belong to both the disability and LGBTQ+ communities have known informally, through our own experiences and those of others like us, that workplace bias and discrimination on the basis of disability, sexuality, and gender identity is still widespread. The new study by Blanck et al. on diversity and inclusion in the U.S. legal profession provides empirical proof of this phenomenon, which might otherwise be dismissed as being based on anecdotal evidence. Its findings lend credibility to our position that the legal profession must make systemic changes to address workplace ableism, heterosexism, and transmisia. They also suggest possibilities as to where and how it might start to do so through providing information on who employers discriminate against most often and in what forms.
At the same time, though, more research is necessary to enable LGBTQ+, disability, and labor rights advocates to make truly data-driven recommendations for how to improve the working lives of queer and disabled legal professionals. The data in this study informs the reader of what is happening in a general sense, but leaves a lot of room for more in-depth explorations of related issues, such as how experiences of discrimination differ across workplace settings and subsections of the affected communities. Furthermore, developing effective diversity and inclusion measures requires that researchers analyze why the bias and discrimination they seek to address persists to such a significant extent. Developing an understanding of these reasons depends in turn on examining any underlying, unexamined assumptions researchers themselves may have about the degree of even abstract commitment to the principles of diversity and inclusion within the legal profession.
In this Comment, we will first discuss how the study's authors assume a certain level of commitment to ending workplace discrimination to an extent that is not warranted, and how this assumption impedes a fully effective response to the problem. We go on to propose specific areas for further study, such as bias and lateral oppression against subpopulations within the LGBTQ+ and disability communities; discrimination across different types of organizations or employers; the response of victims of discrimination; and the efficacy of current anti-discrimination measures. Finally, in the absence of data on these particular subjects, we draw upon our knowledge and lived experience to propose short-term steps that employers, law schools, professional associations, and individual legal practitioners can take to begin the process of making the legal profession truly equitable and inclusive.
The primary flaw in the study at issue is that the authors overstate the progress that the legal profession has made in rooting out structural oppression. In particular, the authors state that “overt forms of discrimination are viewed as unacceptable behavior in the workplace, and such behavior usually leads to consequences for the person(s)who commit it.” As proof of this statement, the authors point to the existence of anti-discrimination provisions within the Americans with Disabilities Act.
The results of the study itself reveal that the existence of legal protections is not proof of adequate enforcement, or even widespread support for the law's purpose. While the findings of the study support the position that overt discrimination by itself is less common than either subtle discrimination alone or the combination of both types, it provides no evidence of widespread accountability for acts of overt discrimination, nor even that overt discrimination in all its forms is widely frowned upon. If anything, the fact that disabled people most often face both subtle and overt discrimination suggests that ongoing (acceptance of) overt discrimination is an open secret within the legal community.
Ignoring this data in favor of the common but evidently unfounded belief that open bigotry is no longer a significant issue comes at the price of misunderstanding the nature and scope of the problem, and of what the legal profession has to do to change it. This misunderstanding may be a significant contributing factor in why diversity and inclusion initiatives have not been as successful as many of us would have liked. If it also carries over into subsequent research efforts, it could prevent scholars from asking the right questions and accurately interpreting the results. While it's uncomfortable to imagine that members of our profession continue to both hold and shamelessly act on harmful and backwards beliefs, confronting that fact honestly is the only way to have any hope of changing it.
[. . .]
Organizational leaders all too often do not live up to the responsibilities of their positions by failing to hold employees accountable for creating a hostile workplace, sometimes even after repeated instances of discrimination. The widespread practice of buying the silence of victims through nondisclosure agreements, or simply through the threat of harming their reputation, further covers up, and therefore enables, workplace discrimination. If queer and disabled attorneys are lucky enough to learn about longstanding patterns of discrimination at a given organization in advance of working there, it is generally only through private conversations with people who have experienced it firsthand and wish to remain anonymous.
As long as employers shield their institutional reputations by protecting workplace abusers at the expense of their victims, other institutions within the legal profession must stand up for its most vulnerable members. This can include providing training and advocacy to attorneys on how to avoid effectively coercive gag clauses in cases involving discrimination. It could also involve such institutions deliberately but confidentially collecting information about marginalized attorneys' experiences with local and large nationwide employers. From there, they could put pressure on employers with known histories of discrimination to change by refusing to allow them to participate in events such as recruitment fairs or trainings, effectively excluding them from the legal community, until they remedy the source of the problem.
Shain A. M. Neumeier, Committee for Public Counsel Services, Mental Health Litigation Division. (The contents of this article are published in the author's personal capacity.)
Lydia X. Z. Brown, Georgetown University, Disability Studies Program
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