Disability, Diversity, and Empathy in the Legal Profession

We are already working with more people with disabilities than we think,” says Ben Lumicao, an in-house counsel in Chicago with a visible disability (cerebral palsy). More than a quarter of Americans have a disability of some kind, but only 30% of those fall into the “visible” spectrum Lumicao describes.

That’s an arresting thought for those of us currently without disabilities, and especially so in the legal profession. Many lawyers with invisible or less visible disabilities keep them hidden — in part, the article suggests, because of our profession’s cultural obsession with strength and fear of appearing weak. I think that says something about how we are, and aren’t, making the legal profession more “diverse’ in various ways.

In a recent issue of my Substack newsletter, I described myself as someone with all the features of our society’s traditional “power profile” (male, white, straight, Christian, able-bodied). Among the many, many benefits of that profile is that I don’t need to give one second’s thought to whether and in what ways people outside that profile, in whole or in part, might struggle with systems and structures that were designed for me and not for them.

There’s been some progress recently (along with way too much failure and setback) in terms of making people who are entirely or mostly within the “power profile” more alert to those who are mostly or entirely outside it. Casual racism, routine sexism, self-righteous homophobia, and outspoken xenophobia are less common and more frowned upon in legal workplaces than they used to be. One reason is that the “power profile” people have gradually developed a clue that not everyone thinks and acts exactly like they do.

But when it comes to disabilities, and hidden disabilities in particular, most people without them remain clueless about the lives of people with them. Odds are that you work with a legal professional who, whether you know it or not, has a disability. That should make you stop and think about how they encounter and navigate everyday aspects of professional life — stairwells, telephones, doorways, touchscreens — differently than you do.

Viewed this way, disability can be understood as another important dimension of what we increasingly categorize as DEI (diversity, equity, and inclusion). The Canadian Association of Lawyers with Disabilities understands this — its “Core Principles” position disability squarely within the concept of “intersectional identities” and adopts an “anti-racism, anti-oppression, decolonization and trauma-informed approach” to its efforts.

Unfortunately, a lot of people in my power profile resent and resist DEI efforts. They seem to perceive these efforts as an affront of some kind — that it’s inconvenient to divert some of their energy and attention to recognizing differences within their immediate vicinity and responding accordingly.

The funny thing, of course, is that if you add up everyone in our society who’s not male, not white, not straight, not Christian, and not able-bodied — well, you get a majority, and a pretty sizeable one. Those of us with power profiles would do well to recognize that — and to appreciate that our share of privilege and influence is wildly disproportionate to our numbers. We might want to shift our attitudes and behaviours accordingly.

But I’d also like us to learn a related lesson: that what we really need is more empathy. I’m coming to think that DEI efforts really amount to one long, sustained attempt to teach people like me, who have all the advantages, to take notice of, and show a little compassion towards, people who don’t. Fairness dictates — justice demands — that the people with advantages make an effort to narrow the gap between these two groups.

This should matter to lawyers more than to most people — we’re in the fairness and justice business, after all. I’d like to see us get into the empathy business as well. I’d like to see us become leaders within our society in recognizing differences, in accepting that many differences result in unfair disadvantage, and in giving enough of a damn to do something about it.

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