Diversity and Inclusion in the American Legal Profession: Discrimination and Bias Reported by Lawyers with Disabilities and Lawyers Who Identify as LGBTQ+

Peter Blanck; Fitore Hyseni; Fatma Altunkol Wise

doi:10.1017/amj.2021.1

Diversity and Inclusion in the American Legal Profession: Discrimination and Bias Reported by Lawyers with Disabilities and Lawyers Who Identify as LGBTQ+

Published online by Cambridge University Press: 12 July 2021

Peter Blanck ,

Fitore Hyseni and

Fatma Altunkol Wise

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Peter Blanck: Affiliation:
University Professor & Chairman, Burton Blatt Institute (“BBI”) at Syracuse University
Fitore Hyseni: Affiliation:
Maxwell School of Citizenship and Public Affairs, Syracuse University
Fatma Altunkol Wise: Affiliation:
Syracuse University

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Abstract
Footnotes
References

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Abstract

Purpose

This article is part of an ongoing body of investigation examining the experiences of lawyers with diverse and multiple minority identities, with particular focus on lawyers with disabilities; lawyers who identify as lesbian, gay, bisexual, transgender, and queer (“LGBTQ+” as an overarching term); and lawyers with minority identities associated with race and ethnicity, gender, and age. The focus of this article is on discrimination and bias in their workplaces as reported by the lawyers experiencing it.

Methods

We employ survey data from the first phase of this investigation, gathered from the survey responses of 3590 lawyers located across all states in the United States and working in most types and sizes of legal venues. The data were collected between 2018 and 2019, before the 2020 pandemic. We estimate differences across three categories of discrimination reported—subtle-only discrimination, overt-only discrimination, and both subtle and overt discrimination. We estimate the nature and magnitude of associations among individual and organizational variables, and we use multinomial logistic regression to illustrate relative risks of reports of discrimination for intersecting identities.

Results

As compared to non-disabled lawyers, lawyers with disabilities show a higher likelihood of reporting both subtle and overt discrimination versus no discrimination. Similarly, lawyers who identify as lesbian, gay, bisexual, and queer (“LGBQ”) show a higher likelihood of reporting both subtle and overtdiscrimination, and subtle-only discrimination, as compared to lawyers who identify as straight/heterosexual. Women lawyers and lawyers of color are more likely to report all three types of discrimination. In general, younger lawyers are more likely to report subtle-only discrimination when compared to older lawyers. Lawyers working at a private firm are less likely to report all types of discrimination, while working for a larger organization is associated with a higher relative risk of reporting subtle-only discrimination versus no discrimination.

Conclusions

The current study represents a next, incremental step for better understanding non-monochromatic and intersectional aspects of individual identity in the legal profession. The findings illustrate that primary individual and multiple minority identities, as identified by disability, sexual orientation, gender, race/ethnicity, and age, are associated with reports of discrimination and bias in the legal workplace.

Type: Special Issue Article
Information: American Journal of Law & Medicine , Volume 47 , Issue 1 , March 2021 , pp. 9 - 61

DOI: https://doi.org/10.1017/amj.2021.1 [Opens in a new window]
Copyright: © 2021 The Author(s)

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Footnotes

†

This line of study was supported in part by grants to Peter Blanck (PI) at Syracuse University from the Administration on Community Living (“ACL”), National Institute on Disability, Independent Living, and Rehabilitation Research (“NIDILRR”), in the U.S. Department of Health & Human Services (“HHS”) for: Rehabilitation Research & Training on Employment Policy: Center for Disability-Inclusive Employment Policy Research Grant #90RTEM0006-01-00, and the Southeast ADA Center, Grant #90DP0090-01-00. NIDILRR is a Center within ACL, HHS. The contents of this article do not necessarily represent the policy of NIDILRR, ACL, or HHS, and you should not assume endorsement by the federal government. The authors thank Meera Adya and Mary B. Trevor for making helpful reviews of earlier drafts of this manuscript. We also thank the commentators for the special issue of the AJLM whose ideas and observations have greatly improved this article, as well as the anonymous peer-reviewers for their valuable comments. The authors alone are responsible for the content. The authors report no conflicts of interest.

††

Ph.D. Candidate

†††

Post-Doctoral Fellow, BBI

References

¹ In addition to the funding mentioned in note †, supra, this program of study is supported in part by the American Bar Association (“ABA”) Commission on Disability Rights (we thank Amy Allbright, Director) and the ABA Commission on Sexual Orientation and Gender Identity (we thank Malcolm “Skip” Harsch, Director). This investigation has been a collaborative effort, with many people and organizations graciously giving of their time to enhance the diversity and inclusiveness of the legal profession. Leaders from the ABA, Chairman Scott LaBarre of the Disability Rights Bar Association (“DRBA”), President Wes Bizzell of the National LGBT Bar Association, and other non-profit and state legal leaders and associations contributed to this effort. Many people from across the United States acted as members of the project’s Blue-Ribbon Advisory Panel, providing feedback and insight into the development of the first phase survey. Countless other legal professionals provided feedback, and we have vetted our ideas at national and state legal association meetings and educational programs. This investigation would not be possible but for this engagement by such leaders in the diverse community of legal professionals, law firms, state bar associations, not-for-profit legal associations, and others. As mentioned in note †, supra, the views expressed herein represent the opinions of the authors, and not those of any funding agency, university, or other entity. They have not been approved by the House of Delegates or the Board of Governors of the ABA and, accordingly, should not be construed as representing the position of the ABA or any of its entities.

² When linguistically possible, we use person-first and identity-first language interchangeably when referring to selfhood and individual experience and preference. This usage also recognizes the importance of person-first language to the disability movement (and other movements) when disability is an important part of self-identity. Not all individuals and groups endorse the same type of person- or identity-first language, however. The National Federation of the Blind may refer to “blind people.” In deaf culture, individuals may refer to a “Deaf Person” or “hard of hearing person.” In the Autistic community, some may refer to “Autistic Individuals” or “being on the spectrum.” The notion of “neurodiversity” is one way of describing people with neurological differences—another naturally occurring aspect of the human condition. Others with neurodiversity may describe themselves as having conditions, such as Dyslexia, Attention Deficit Hyperactivity Disorder, and Autistic Spectrum Disorder.

While our current language choices respect, but cannot enduringly reflect, all the ones that would be made or preferred by all people in the disability and broader communities, our aim is to be thoughtful and cognizant of the value in all persons. See Peter Blanck, Disability Law and Policy (2020) [hereinafter Blanck, Disability]. We have included explanations for our choices in this footnote and in the next two.

³ For the first two articles, see Peter Blanck, Fitore Hyseni & Fatma Altunkol Wise, Diversity and Inclusion in the American Legal Profession: Workplace Accommodations for Lawyers with Disabilities and Lawyers Who Identify as LGBTQ+, 30 J. Occupational Rehab. 538 (2020) [hereinafter Blanck et al., Workplace Accommodations]; Peter Blanck et al., Diversity and Inclusion in the American Legal Profession: First Phase Findings from a National Study of Lawyers with Disabilities and Lawyers Who Identify as LGBTQ+, 23 U.D.C. L. Rev. 23 (2020) [hereinafter Blanck et al., First Phase]. In our endeavors, we recognize that people with multiple and intersectional identities may choose unique ways in language to express their personhood. See, e.g., Finding the Right Words: LGBTQ+ Glossary, IT GETS BETTER PROJECT (last updated Apr. 28, 2020) [hereinafter LGBTQ+ Glossary], https://itgetsbetter.org/blog/lesson/glossary/?gclid=Cj0KCQiApsiBBhCKARIsAN8o_4iulMIOQS0gOOem-_WLyCaw9RaFXcu-I-cHCLJi1cTyMUeIvszaZIcaAvZIEALw_wcB [https://perma.cc/B6NG-R6YD] (“Many LGBTQ+ people use labels to express who they are. These labels can help listeners like you and me understand who that person is and how they wish to identify. Some labels are often used universally by LGBTQ+ people, while others relate to [specific] concepts.”). We also are mindful of individual choice in pronouns that are gender neutral or gender inclusive, and where possible have tried to reflect that preference as well as to use pronouns thoughtfully in general.

⁴ See Blanck et al., Workplace Accommodations, supra note 3; Blanck et al., First Phase, supra note 3. In this Article, we use both the terms “people/person of color” (POC) and “racial/ethnic minorities” to refer to ethnic and racial minorities in the United States. The goal of using such over-encompassing terms is not to imply a monolithic experience, but to highlight the common experiences of systemic racism that Black, Hispanic/Latino, Asian American, and Indigenous populations experience. Where possible, we also offer disaggregated data on these groups to show the nuance in experiences of workplace discrimination. Other researchers and activists have suggested the use of the term BIPOC (“Black, Indigenous, and People of Color”) to highlight and center the unique experiences of Black and Indigenous Peoples. Given the diverse and large number of people of color represented in our survey, we have decided to use the terms “people of color” and "racial/ethnic minorities" interchangeably so as to most fully identify shared axes of inequality in the workplace, and we also refer specifically to lawyers as appropriate when using these terms. Nonetheless, we recognize other assumptions in our use of this language, which we will consider in future studies, such as including White individuals with Hispanic heritage who may not be considered people of color and do not experience systems of oppression comparable to those that Black or other POC experience.

⁵ See Ronit Dinovitzer et al., After the JD: First Results of a National Study of Legal Careers, Nat’l Ass’n for L. Placement (“NALP”) Found. for L. Career Res. & Educ. & Am. B. Found. (“ABF”) (2004), http://www.americanbarfoundation.org/research/project/118 [https://perma.cc/E5ZA-E3TK]. The study was done in three phases, with the Second Results coming in 2009. The Third Results came in 2014. Ronit Dinovitzer et al., After the JD III: Third Results from a National Study of Legal Careers, NALP Found. for L. Career Res. & Educ. & ABF (2014). To aid in comparing the After the JD studies and our study, where possible we have conformed our data tables to those adopted in the After the JD reports. Another important comparator study for our study is Robert L. Nelson et al., Perceiving Discrimination: Race, Gender, and Sexual Orientation in the Legal Workplace, 44 L. & Soc. Inquiry 1051 (2019). For an excellent overview, see Diversity in Practice: Race, Gender, and Class in Legal and Professional Careers (Spencer Headworth et al. eds., 2016).

⁶ See Allison E. Laffey & Allison Ng, Diversity and Inclusion in the Law: Challenges and Initiatives, A.B.A. (May 2, 2018), https://www.americanbar.org/groups/litigation/committees/jiop/articles/2018/diversity-and-inclusion-in-the-law-challenges-and-initiatives/ [https://perma.cc/D6QZ-KTE8]; see also Deborah L. Rhode & Lucy Buford Ricca, Diversity in the Legal Profession: Perspectives from Managing Partners and General Counsel, 83 Fordham L. Rev. 2483 (2015); Ronit Dinovitzer & Bryan G. Garth, The New Place of Corporate Law Firms in the Structuring of Elite Legal Careers, 45 L. & Soc. Inquiry 339 (2020). According to Dinovitzer and Garth,

We find that, consistent with the long-standing hierarchies of the legal field, the so-called upper hemisphere represented by the corporate law firm remains dominated by white male graduates of elite law schools with wives at home. The sequence analysis of equity partners shows a group that touched all the bases to fit the institutionalized hierarchies of the large law firm, including both the capital (law review, high grades, elite schools, and judicial clerkships) and the ambitions and fit required. They also continue the white male dominance within the equity partnership track. Because of this story of continuity, we term them “the inheritors” from the golden age of corporate law firms.

Id. at 364.

⁷ See Nelson et al., supra note 5, at 1051; see also Todd A. Collins, Tao L. Dumas & Laura P. Moyer, Intersecting Disadvantages: Race, Gender, and Age Discrimination among Attorneys, 98 Soc. Sci. Q. 1642, 1654 (2017); Wesley Bizzell, LGBTQ+ Lawyers Experience Breakthroughs and Setbacks: Comment on Blanck, Hyseni, and Altunkol Wise’s National Study of the Legal Profession, 47 Am. J.L. & Med. 67, 67 (2021) (“While other studies have focused on LGBTQ+ bias and discrimination in the American workforce, few have looked at these issues in the specific context of the legal profession, a profession with an often rigid hierarchy and a woeful lack of diversity across multiple spectrums.”).

⁸ See Dinerman, Beatrice, Sex Discrimination in the Legal Profession, 55 A.B.A. J. 951 (1969)Google Scholar.

⁹ See Ellen Berrey, Robert L. Nelson & Laura Beth Nielsen, Rights on Trial: How Workplace Discrimination Law Perpetuates Inequality (2017); Monique R. Payne‐Pikus, John Hagan & Robert L. Nelson, Experiencing Discrimination: Race and Retention in America's Largest Law Firms, 44 L. & Soc’y Rev. 553 (2010).

¹⁰ For the seminal discussion, see Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. Chi. Legal F. 139 (1989) (conception of intersectionality derived from the attitudinal and structural oppression, discrimination, and bias facing Black women). See also Collins et al., supra note 7; LGBTQ+ Glossary, supra note 2, at 5 (“Intersectionality (GE, GI, S, SO). Noun. The idea that people who find themselves at the crossroads of multiple identities (for example, in terms of race, gender, or sexuality) experience discrimination in a way uniquely different from those who with whom they may only share one or some identities in common. For example, Black women will experience racism differently than Black men and sexism differently than white women, and the way they experience racism and sexism is informed by their unique intersectional identities. The term was first used in the context of feminism by civil rights scholar and advocate Kimberlé Crenshaw.”).

¹¹ See Barry D. Adam, Stigma and Employ Ability: Discrimination by Sex and Sexual Orientation in the Ontario Legal Profession, 18 Canadian Rev. Soc. 216 (1981); see also Nelson et al., supra note 5; Blanck et al., First Phase, supra note 3. And for their excellent report on experiences of lawyers with disabilities, see Debbie Foster & Natasha Hirst, Legally Disabled? The Career Experiences of Disabled People Working in the Legal Profession (Cardiff Bus. Sch. 2020), http://legallydisabled.com/wp-content/uploads/2020/01/Legally-Disabled-full-report-FINAL.pdf [https://perma.cc/3HVW-YXD5]. On the unique discrimination experiences of bisexual individuals, see Ann E. Tweedy & Karen Yescavage, Employment Discrimination Against Bisexuals: An Empirical Study, 21 Wm. & Mary J. Women & L. 669, 735-37 (2015) (“The study confirmed that bisexuals and others with fluid identities believe they experience a wide range of types of discrimination based on sexual orientation, including many types of harassment as well as the more traditional types of discrimination—firing and failure to hire due to sexual orientation. … The fact that such a high proportion of respondents had experienced inappropriate jokes or insults based on their sexual orientations may be evidence that bisexuality is not seen as a serious identity that is deserving of protection, a complaint that participants in Stonewall’s study voiced.”) (citations omitted).

¹² ADA Amendments Act of 2008, 42 U.S.C. § 12101 et seq. (2018) (amending the Americans with Disabilities Act of 1990); see also Blanck, Disability, supra note 2; Peter Blanck, Disability Inclusive Employment and the Accommodation Principle: Emerging Issues in Research, Policy, and Law, 30 J. Occupational Rehab. 505 (2020) [hereinafter Blanck, Emerging]; Peter Blanck, On the Importance of the Americans with Disabilities Act at Thirty, J. Disability Pol’y Stud. (forthcoming 2021) [hereinafter Blanck, ADA at Thirty]; Peter Blanck, Why America is Better Off Because of the Americans with Disabilities Act and the Individuals with Disabilities Education Act, 35 Touro L. Rev. 605 (2019) [hereinafter Blanck, America Better Off].

¹³ Talent and competence are culturally, situationally, and contextually loaded concepts. See, e.g., Tomas Chamorro-Premuzic, Ace the Assessment, Harv. Bus. Rev., July-Aug. 2015, at 118, 120–21. In our investigation to date, it may appear that we have assumed a level of commitment to D&I in the legal profession. However, it is important to note that, as pointed out by Neumeier and Brown, such assumptions should be questioned. Shain A. M. Neumeier & Lydia X. Z. Brown, Beyond Diversity and Inclusion: Understanding and Addressing Ableism, Heterosexism, and Transmisia in the Legal Profession, 47 Am. J.L. & Med. 82, 83 (2021). Our findings and reviews in our prior articles in this series, and in other anecdotal evidence of marginalized individuals in the legal profession, suggest that meaningful commitment in the profession to demonstrated outcomes in increased diversity and inclusion remains an open issue. See id. (“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”).

¹⁴ Blanck et al., First Phase, supra note 3, at 27; Chamorro-Premuzic, supra note 13, at 119 (“[V]alid tests help companies measure three critical elements of success on the job: competence, work ethic, and emotional intelligence.”).

¹⁵ See Alex B. Long, Employment Discrimination in the Legal Profession: A Question of Ethics, 2016 U. Ill. L. Rev. 445.

¹⁶ See A.B.A., New Study Finds Gender and Racial Bias Endemic in Legal Profession (Sept. 6, 2018), https://www.americanbar.org/news/abanews/aba-news-archives/2018/09/new-study-finds-gender-and-racial-bias-endemic-in-legal-professi/ [https://perma.cc/PCS8-78RX]; Laffey, supra note 6.

¹⁷ See Scott Lilienfeld, Microaggressions: Strong Claims, Inadequate Evidence, 12 Persp. on Psychol. Sci. 138 (2017) (critiquing microaggressions concept on methodological and empirical grounds).

¹⁸ There are a multitude of writings and critiques on the forms of bias, stigma, and discrimination across the professions. For reviews, see, e.g., Samuel Bagenstos, Implicit Bias’s Failure, 39 Berkeley J. Emp. & Lab. L. 37 (2018); Blanck, Disability, supra note 2 ; see also Kayla Lett, Andreea Tamaian & Bridget Klest, Impact of Ableist Microaggressions on University Students with Self-Identified Disabilities, 35 Disability & Soc’y 1441 (2019).

¹⁹ For a review, see Mikki Hebl, Shannon Cheng & Linnea Ng, Modern Discrimination in Organizations, 7 Ann. Rev. Organizational Psychol. & Organizational Behav. 257 (2020).

²⁰ See Brenda Major & Laurie T. O’Brien, The Social Psychology of Stigma, 56 Ann. Rev. Psychol. 393, 394-96 (2005).

²¹ Id.

²² Id.

²³ Cf. Nelson et al., supra note 5, at 1052 (“Contrary to the common assertion that most discrimination today entails implicit bias and subtle forms of unequal treatment, respondents’ accounts show that workplace bias is often explicit. Both overt workplace interactions and implicit bias appear to reinforce the very hierarchies of race, gender, and sexual orientation decried by leaders of the legal profession. These findings extend our theoretical understanding of discrimination and have important implications for equal opportunity within the legal profession and the prospects for equal justice under the law.”) (citations omitted).

²⁴ See Joan Williams, Hacking Tech’s Diversity Problem, 92 Harv. Bus. Rev. 96, 96-99 (Oct. 2014) (discussing a novel approach to fighting bias in the workplace); Cynthia L. Cooper, Can Bias Interrupters Succeed Where Diversity Efforts Have Stalled?, A.B.A. (July 10, 2017), https://www.americanbar.org/groups/diversity/women/publications/perspectives/2017/summer/cbiinterrupters-succeed-where-diversity-efforts-have-stalled/ [https://perma.cc/M77K-3DMS]. For application to lawyers, see Joan C. Williams et al., You Can’t Change What You Can’t See: Interrupting Racial & Gender Bias in the Legal Profession 7-9 (report prepared for the ABA’s Comm’n on Women in the Pro. & the Minority Corp. Counsel Assoc. 2018).

²⁵ See, e.g., Dinovitzer & Garth, supra note 6, at 341, 345, 364.

²⁶ For example, for thoughtful discussion of assumptions regarding “productivity” as imbedded in legal education, see Neumeier & Brown, supra note 13, at 89 (“The legal academy, as it is, requires adherence to strict standards of performance, achievement, and excellence that are in turn rooted in deeply ableist, classist, and racist expectations. For instance, students must complete a certain quantity of coursework within a compressed time period, while achieving certain grades, participating in certain prescribed activities, and demonstrating sufficient intellectual capacity in rigid examinations. These expectations do not account for the high variability of marginalized students’ experiences, such as childcare and outside work responsibilities, disabilities that cause chronic pain and cognitive fatigue, constant trauma from racial terror and stress, or survival of abusive familial and intimate partner relationships, all of which can significantly impact ability to complete coursework at a specific pace, in a specific timeframe, and to a specific degree of excellence.”)

²⁷ See note 3, supra (prior articles in this program of study).

²⁸ Blanck et al., First Phase, supra note 3, at 30.

²⁹ In this article, we use the terms “minority” and “marginalized” to signify groups that are systematically oppressed and discriminated against in U.S. society as well as specifically in the legal profession. In their comment on our article, Kellye Testy and Elizabeth Bodamer insightfully distinguish the uses of the terms “minoritized” and “minority” to better reflect the present situation for groups such as women, who in aspects of the legal profession are no longer a minority, but who nonetheless still face barriers as a “minoritized” group. See Kellye Testy & Elizabeth Bodamer, Reflections on a New Study that Examines Discrimination and Bias Reported by Lawyers, 47 Am. J.L. & Med. 99, 102 (2021).

³⁰ See Blanck et al., First Phase, supra note 3.

³¹ Id. at 47.

³² Nelson et al., supra note 5, at 1074.

³³ Id. at 1076.

³⁴ See, e.g., Crenshaw, supra note 10.

³⁵ See Collins et al., supra note 7, at 1654.

³⁶ Blanck et al., First Phase, supra note 3, at 48. The article provided descriptive statistics, highlighting the ways in which individual minority identities overlap. For example, while 16.6% of lawyers identified as lesbian, bisexual, and gay (“LGB”), of those respondents who reported health and disability issues, 18.7% identified as LGB. Id. at 43.

³⁷ Blanck et al., Workplace Accommodations, supra note 3.

³⁸ As mentioned, we use the overarching term LGBQT+ to highlight the broader focus of this investigation. However, where appropriate, we distinguish sexual orientation (“LGBQ”) from gender and transgender identity.

³⁹ For one recent study of the legal profession, see Foster & Hirst, supra note 11.

⁴⁰ The findings for job tenure and age suggest that older people tend to report lower rates of subtle bias than younger people; at the same time, those with more tenure report experiencing higher rates of subtle bias. There appears to be a separate effect for age, as Elyn Saks insightfully suggests in her commentary: that is, younger lawyers may be more informed about the nature of subtle (“unconscious”) bias, while those with tenure, who thus have greater job security, are more likely to report subtle bias. See Elyn Saks, The Least Diverse Profession: Comment on Blanck, Hyseni, and Altunkol Wise’s National Study of Diversity and Inclusion in the Legal Profession, 47 Am. J.L. & Med. 95, 96 (2021).

⁴¹ Alfred Blumrosen, Modern Law: The Law Transmission System and Equal Employment Opportunity 50 (1993); Blanck, Disability, supra note 2.

⁴² See Blanck, Disability, supra note 2, at 43 (corporate culture and attitudes, in parallel with economic considerations, are found to motivate the use of accommodations); see also Lisa Schur, Douglas Kruse & Peter Blanck, Corporate Culture and the Employment of Persons with Disabilities, 23 Behav. Sci. & L. 3, 13–18 (2005); Lisa Schur et al., Is Disability Disabling in All Workplaces? Workplace Disparities and Corporate Culture, 48 Indus. Rel. 381, 384–87 (2009).

⁴³ Lilia M. Cortina, Unseen Injustice: Incivility as Modern Discrimination in Organizations, 33 Acad. Mgmt. Rev. 55, 59 (2008).

⁴⁴ Koen Van Laer & Maddy Janssens, Ethnic Minority Professionals’ Experiences with Subtle Discrimination in the Workplace, 64 Hum. Rels. 1203, 1205 (2011).

⁴⁵ See Kristen P. Jones et al., Not So Subtle: A Meta-Analytic Investigation of the Correlates of Subtle and Overt Discrimination, 42 J. Mgmt. 1588, 1591 (2016). For their study of subtle discrimination against ethnic minorities, see Laer & Janssens, supra note 44.

⁴⁶ See generally Blanck, Disability, supra note 2; Blanck, Emerging, supra note 12. In their commentary, Neumeier and Brown appropriately argue that a further and critical approach is required for analyzing the prevalence of overt (and other) discrimination in the legal profession, in consideration of the response to the victim of discrimination and the lack of accountability for such acts by others. Neumeier & Brown, supra note 13, at 83-84 (“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.”).

⁴⁷ See generally Jones et al., supra note 45.

⁴⁸ See generally Christian S. Crandall & Amy Eshleman, A Justification-Suppression Model of the Expression and Experience of Prejudice, 129 Psychol. Bull. 414 (2003).

⁴⁹ See Cortina, supra note 43, at 71; see generally Mary P. Rowe, Barriers to Equality: The Power of Subtle Discrimination to Maintain Unequal Opportunity, 3 Emp. Resps. & Rts. J. 153 (1990).

⁵⁰ See Blanck et al., First Phase, supra note 3, at 47; Nicole E. Negowetti, Implicit Bias and the Legal Profession's “Diversity Crisis”: A Call for Self-Reflection, 15 Nev. L.J. 930, 935 (2015). See generally Connie Lee, Bias in the Courtroom: Combating Implicit Bias against Women Trial Attorneys and Litigators, 22 Cardozo J.L. & Gender 229 (2015).

⁵¹ Jones et al., supra note 45, at 1589.

⁵² Id.

⁵³ See Anthony D. Ong et al., Racial Microaggressions and Daily Well-Being among Asian Americans, 60 J. Counseling Psychol. 188, 196 (2013).

⁵⁴ Sandy Lim & Lilia M. Cortina, Interpersonal Mistreatment in the Workplace: The Interface and Impact of General Incivility and Sexual Harassment, 90 J. Applied Psychol. 483, 493 (2005).

⁵⁵ Jessica T. DeCuir-Gunby & Norris W. Gunby Jr., Racial Microaggressions in the Workplace: A Critical Race Analysis of the Experiences of African American Educators, 51 Urb. Educ. 390, 406 (2016); Gregory T. Gifford, Stigma in the Workplace: Testing a Framework for the Effects of Demographic and Perceived Differences in Organizations 1, 17 (2009) (Ph.D. dissertation, University of Nebraska-Lincoln) (on file with the University of Nebraska-Lincoln).

⁵⁶ Jessica Salvatore & J. Nicole Shelton, Cognitive Costs of Exposure to Racial Prejudice, 18 Psychol. Sci. 810, 814 (2007); Sarah LaTash Brionne Singletary, The Differential Impact of Formal and Interpersonal Discrimination on Job Performance (2009) (Ph.D. dissertation, Rice University) (on file with the Rice Digital Scholarship Archive). Some research suggests that repeated experiences with subtle discrimination may be associated with increased alcohol and illicit drug use. Mary E. (“Memi”) Miscally, A Path Model of Discrimination, Social Integration, Social Support, and Substance Use for Asian American Adults (2009) (Ph.D. dissertation, Tulane University) (ProQuest).

⁵⁷ For a review of subtle bias, see Isabel Bilotta et al., How Subtle Bias Infects the Law, 15 Ann. Rev. of L. & Soc. Sci. 227 (2019). Bilotta states, “Subtle bias is a discrete prejudice or preference toward a certain group, person, or thing that can drive one’s decisions and actions. Biases are belief systems that can be extremely problematic to both the individual who holds the biased belief and the target or object of these beliefs.… As we take in information about different kinds of races, ages, genders, and abilities, we begin to form stereotypes…. These stereotypes can be either altered or reinforced based on the new information that we receive from our environments throughout our early development. Bias can be broken into two types: explicit and implicit. … [T]he difference lies in the degree to which individuals are aware of their biases. Explicit biases are the beliefs that people consciously possess and intentionally express, whereas implicit biases are composed of well-learned associations that reside below conscious awareness and can automatically drive behavior in a manner that is inconsistent with one’s personal attitudes. … Interpersonal discrimination is one of the forms in which subtle bias can manifest as subtle discrimination. Interpersonal discrimination can be reflected in less eye contact, shorter interactions, and colder facial expressions. Another way that subtle biases can manifest is in the form of microaggressions…. [S]ubtle discrimination that emerges as a result of implicit biases is just as harmful as overt discrimination, if not more so, because the target is more likely to internalize the experience than to discount it as discrimination.” Id. at 228-229 (citations omitted).

⁵⁸ Generally, subtle discrimination is “interpersonal discrimination that is enacted unconsciously or unintentionally and that is entrenched in common, everyday interactions, taking the shape of harassment, jokes, rudeness, avoidance, and other types of disrespectful treatment.” Van Laer & Janssens, supra note 44, at 1205.

⁵⁹ For two, among many, views, see Samuel R. Bagenstos, supra note 18 ; Rhode & Buford Ricca, supra note 6, at 2495.

⁶⁰ Jones et al., supra note 45, at 1590.

⁶¹ See Rhode & Buford Ricca, supra note 6, at 2495.

⁶² See generally Hebl et al., supra note 19.

⁶³ See, e.g., Diversity CLE requirement, New York City Bar, https://www.nycbar.org/member-and-career-services/cle-and-events/cle/diversity-cle-requirement-ny-2018 [https://perma.cc/82J6-54RR] (“Diversity CLE Requirement. New York has instituted a Diversity, Inclusion and Elimination of Bias (D&I) CLE requirement for experienced attorneys, effective January 1, 2018. Experienced attorneys who are due to re-register on or after July 1, 2018 must complete at least one (1) credit hour in D&I.”) (last visited Nov. 13, 2020).

⁶⁴ See generally Lisa Nishii et al., A Multi-Level Process Model for Understanding Diversity Practice Effectiveness, 12 Acad. Mgmt. Annals 37 (2018).

⁶⁵ Id. at 37. They have concluded: “If, as these findings suggest, organizations cannot rely on specific diversity related activities to consistently produce favorable results, the logical question to ask is: ‘Why?’ … [Because] the overall theme that emerges relates to the absence of a holistic view of the situation.” Id.

⁶⁶ Id. (emphasis added). Cf. Nelson et al., supra note 5, at 1054 (traditionally marginalized groups more likely to perceive discrimination in workplace and as objective experience) (citing Lincoln Quillian et al., Meta-Analysis of Field Experiments Shows No Change in Racial Discrimination in Hiring over Time, Proceedings of the National Academy of Sciences of the United States of America (Aug. 8, 2017)); see also Jones et al., supra note 45; John Dovidio, Lisa Pagotto & Mikki Hebl, Implicit Attitudes and Discrimination against People with Physical Disabilities, in Disability and Aging Discrimination: Perspectives in Law and Psychology 157 (Richard Wiener & S. L. Willborn eds., 2011); Christopher Petsko & Galen Bodenhausen, Multifarious Person Perception: How Social Perceivers Manage the Complexity of Intersectional Targets, 14 Soc. & Personality Psychol. Compass (2020) (intersectional identities, dominant identity, and integrated identity); Erika Hall, et al., Mosaic: A Model of Stereotyping through Associated and Intersectional Categories, 44 Acad. Mgmt. Rev. 643 (2019) (social categorization).

⁶⁷ For an illustrative review, see Mike Noon, Pointless Diversity Training: Unconscious Bias, New Racism and Agency, 32 Work, Emp. & Soc. 198 (2018). According to Noon, “The failure to recognise that UBT [unconscious bias training] is likely to be least effective for those whose actions most need modification is due to the inadequate treatment of agency and responsibility. Part of the allure of the notion of unconscious bias is that it is not about blame. It is convenient to believe that racial discrimination is not a product of our conscious thought but deeply embedded, so discrimination is not really our fault.” Id. at 202. Further, “In a systematic evaluation of diversity programmes for the advancement of women and ethnic minorities into management, [one study] found diversity training initiatives addressing bias to be one of the least effective methods. Indeed, such interventions have been found in some circumstances to solidify existing attitudes or create backlash. From an extensive review of 985 published studies of prejudice reduction, [another study concludes] that there are plenty of ideas and theories, but no evidence conclusive enough to develop confident policy making. More recently, a meta-analysis of the effects of diversity training (covering 260 studies published over the last 40 years) leads the authors to argue that while there is evidence of diversity training success in the short term, and especially when combined with other initiatives, there is ‘no compelling evidence that long-term effects of diversity training are sustainable in relation to attitudinal/affective outcomes.’” Id. at 203 (citation details and citations omitted).

Research suggests there are ways to promote worker rights, such as through collective action via unions or class action litigation. However, typically union settings are rare in white collar professional workplaces. See Mason Ameri et al., Disability and the Unionized Workplace, in Susanne Bruyère, Employment and Disability: Issues, Innovations, and Opportunities 27 (2019) (“Union workers both with and without disabilities are more likely than their non-union counterparts to request workplace accommodations, which reflects a positive additive effect of both union coverage and disability status. By providing greater voice in general, unions may benefit workers with disabilities by decreasing employer resistance and potential stigma and co-worker resentment associated with accommodation requests. Our exploratory results indicate, however, that accommodation requests made by workers with disabilities are about equally likely to be granted in union and non-union settings”).

⁶⁸ See Michele Duguid & Melissa Thomas-Hunt, Condoning Stereotyping? How Awareness of Stereotyping Prevalence Impacts Expression of Stereotypes, 100 J. Applied Psychol. 343 (2015). According to Duguid and Thomas-Hunt, “[T]he message that everyone stereotypes but that we should be mindful of our biases has been promulgated in many business school classrooms, in the popular press, and hence in organizations. For some, recognition that stereotyping is prevalent has become a means of engaging a broader audience in the dialogue without pointing fingers. The promise of such an approach is that defensive responses associated with blame will subside and individuals will become open to working against natural inclinations. However, this supposition has overlooked the possibility that publicizing the notion that everyone stereotypes might create a descriptive social norm for stereotyping. Therefore, ironically, the very approach purported to reduce stereotyping may backfire and actually increase its occurrence.” Id. at 354. They also suggest, “[T]o reduce stereotype expression and its effects, it might be more useful to capitalize on social norms by highlighting the pervasiveness of individuals’ willingness to exert effort against their unconscious stereotypes.” Id.; see also Noon, supra note 67, at 206 (“[unconscious bias training] is not necessarily bad if it gets people talking about discrimination, but it is yet another distraction from the embedded, structural disadvantages within organisations; disadvantages that require far more radical solutions than introspective sessions that simply nudge managers and employees, often begrudgingly, into recognising that they are biased.”).

⁶⁹ See Rhode & Buford Ricca, supra note 6, at 2495; see generally Blanck et al., First Phase, supra note 3 (people with disabilities marginalized, stereotyped, and experience discrimination in the legal workplace). According to an NALP 2019 Survey, about 0.55% of lawyers have disabilities, and there are relatively few empirical studies on the experiences of lawyers across the spectrum of disability and LGBTQ+ identities. 2019 Report on Diversity in U.S. Law Firms, NALP Found. for L. Career Res. & Educ. (Dec. 2019), https://www.nalp.org/uploads/2019_DiversityReport.pdf [https://perma.cc/8FGL-2NSU]; Donald H. Stone, The Disabled Lawyers Have Arrived; Have They Been Welcomed with Open Arms into the Profession? An Empirical Study of the Disabled Lawyer, 27 Law & Ineq. 93, 120 (2009). People with disabilities and people who identify as LGBTQ+ are among those minority groups most stigmatized by society and in the workplace. See Peter Blanck & Mollie Marti, Attitudes, Behavior, and the Employment Provisions of the Americans with Disabilities Act, 42 Vill. L. Rev. 345, 375-80 (1997); Peter Blanck, “The Right to Live in the World”: Disability Yesterday, Today, and Tomorrow, 13 Tex. J. C.L. & C.R. 367, 400 (2008); Peter Blanck, Disability and Diversity: Historical and Contemporary Influences, Workplace Inclusion of Employees with Disabilities, in 1 Managing Diversity in Today's Workplace: Gender, Race, Sexual Orientation, Ethnicity, and Power 173, 187 (Michele Paludi ed., 2012). They are often targets of negative stereotypes, and they experience adverse career, economic, and health consequences. For the legal profession, its lack of diversity is undoubtedly a contributing factor. Although the number of women lawyers has increased, they are still outnumbered by men at higher levels in the profession, and nearly all racial/ethnic minorities are underrepresented, despite a slow increase of minority lawyers in recent years. See National Lawyer Population Survey: 10-Year Trend in Lawyer Demographics, A.B.A. (2020), https://www.americanbar.org/content/dam/aba/administrative/market_research/national-lawyer-population-demographics-2010-2020.pdf [https://perma.cc/3DQC-FT2F]. Studies have long shown that women and minority attorneys experience more discrimination than White male attorneys. See, e.g., Dinerman, supra note 8, at 951; Albert I. Goldberg, Jews in the Legal Profession: A Case of Adjustment to Discrimination, 32 Jewish Soc. Stud. 148 (1970); Stephen J. Spurr, Sex Discrimination in the Legal Profession: A Study of Promotion, 43 Indus. & Lab. Rel. Rev. 406 (1990); David N. Laband & Bernard F. Lentz, Is There Sex Discrimination in the Legal Profession? Further Evidence on Tangible and Intangible Margins, 28 J. Hum. Res. 230 (1993); Kate Eastman, Sex Discrimination in the Legal Profession, 27 U. N.S.W. L. J. 866 (2004); Payne‐Pikus et al., supra note 9; Jill L. Cruz & Melinda S. Molina, Few and Far Between: The Reality of Latina Lawyers, 37 Pepp. L. Rev. 971, 1014 (2010) (Hispanic National Bar Association National Study on the Status of Latinas in the Legal Profession); see generally Blanck et al., First Phase, supra note 3. Moreover, ethnic and racial minority women lawyers face unique challenges such as exclusion from networking opportunities, desirable assignments, client relationships, and promotion opportunities. See Janet E. Gans Epner, Visible Invisibility: Women of Color in Law Firms, ABA Comm’n on Women in the Pro. (2006), https://www.americanbar.org/content/dam/aba/administrative/women/visibleinvisibility.pdf [https://perma.cc/P3KM-MWZF]; Mark Hansen, Worst of Both Worlds: Women of Color in the Legal Profession Face Double Whammy of Discrimination, A.B.A. J., Oct. 2006, at 62. According to the NALP, in the late 1990s more than 75% of minority female associates left their jobs in private law firms within five years of being hired. Eight years after being hired, this percentage increased to 86%. By 2005, 81% of the minority female associates were leaving their work within five years of hiring. See NALP Found. for Law Career Res. & Educ., Toward Effective Management of Associate Mobility: A Status Report on Attrition, Nat’l Ass’n. for L. Placement (2005). Other studies show that women of color are significantly more likely than White men to report that a client had requested a different attorney, Nelson et al., supra note 5, at 1075, and they are more likely than others to experience unfair treatment based on race, gender and age. Collins et al, supra note 7, at 1650. Other studies show that the intersection of sexual orientation and race increases the probability of discrimination. See Darren L. Whitfield et al., Queer is the New Black? Not So Much: Racial Disparities in Anti-LGBTQ Discrimination, 26 J. Gay & Lesbian Soc. Servs. 426 (2014). However, there are not many studies documenting experiences of LGBTQ+ individuals and people with disabilities in the legal profession. Nelson et al., supra note 5, found that LGBTQ attorneys are more likely to experience discrimination than non-LGBTQ attorneys. There is little systematic information about discrimination experiences of transgender attorneys in legal workplaces. See generally Blanck et al., First Phase, supra note 3.

⁷⁰ See generally Nelson et al., supra note 5.

⁷¹ Blanck et al., First Phase, supra note 3, at 47.

⁷² See Silvia Bonaccio et al., The Participation of People with Disabilities in the Workplace across the Employment Cycle: Employer Concerns and Research Evidence, 35 J. Bus. & Psychol. 135 (2019).

⁷³ Although there is insufficient research about the experiences of transgender individuals in the legal profession, studies of other fields show they are more likely to experience overt discrimination, including physical and sexual assault, as compared to cisgender people. See Jaime M. Grant et al., National Transgender Discrimination Survey Report on Health and Health Care, Nat’l Ctr. for Transgender Equal. & Nat’l Gay & Lesbian Task Force (Oct. 2010), https://cancer-network.org/wp-content/uploads/2017/02/National_Transgender_Discrimination_Survey_Report_on_health_and_health_care.pdf [https://perma.cc/U28Z-DP7Y]; see also Jaime M. Grant et al., Injustice at Every Turn: A Report of the National Transgender Discrimination Survey (Nat’l Ctr. for Transgender Equal. & Nat’l Gay & Lesbian Task Force, 2011), https://www.transequality.org/sites/default/files/docs/resources/NTDS_Report.pdf [https://perma.cc/43RF-UQ2P].

⁷⁴ Gina R. Rosich’s study with transgender-identified people, Sexual Citizenship Theory and Employment Discrimination among Transgender-Identified People, 10 Societies 17, 19 (2020) shows “trans men (FtM) were 132.6% more likely to report discrimination in the workplace, while trans women (MtF) were more likely to experience a wider variety of types of discrimination. Respondents out to their co-workers were 292.4% more likely to experiences discrimination.” Sean Waite’s report on discrimination experiences of transgender, non-binary, genderqueer people, and other minority employees, Should I Stay or Should I Go? Employment Discrimination and Workplace Harassment against Transgender and Other Minority Employees in Canada’s Federal Public Service, J. Homosexuality 1 (Jan. 2020), shows that “gender diverse employees are between 2.2 and 2.5 times more likely to experience discrimination and workplace harassment than their cisgender male coworkers.” For other studies on employment and workplace discrimination against transgender people, see Skylar Davidson, Gender Inequality: Nonbinary Transgender People in the Workplace, 2 Cogent Soc. Scis.1 (2016). For the gender transition experiences of transgender employees while in the workplace, see Brewster et al., Voices from Beyond: A Thematic Content Analysis of Transgender Employees’ Workplace Experiences, 1 Psychol. Sexual Orientation & Gender Diversity 159 (2014).

⁷⁵ See Bilotta et al., supra note 57, at 240 (“[A]s a means to foster diversity, [law] firms might adopt an integration and learning approach, using bias-awareness policies and initiatives to create inclusive communities that are conscious of the systems that perpetuate implicit bias and work to combat disproportionate representation.”) (citation omitted).

⁷⁶ For other discussions of some of these issues, see generally Paul Harpur & Peter Blanck, Gig Workers with Disabilities: Opportunities, Challenges, and Regulatory Response, 30 J. Occupational Rehab. 511 (2020); Peter Blanck & Paul Harpur, California’s Response to the Status of Gig Workers with Disabilities: An Update, 30 J. Occupational Rehab. 689 (2020) (discrimination may be evidenced against people with disabilities with multiple minority identities in non-traditional gig work settings); Blanck, ADA at Thirty, supra note 12.

⁷⁷ For detailed discussion of recruitment and sampling issues in the present investigation, see Blanck et al., First Phase, supra note 3, at 38-42.

⁷⁸ For additional studies on the discrimination experiences of marginalized groups, see Roland G. Fryer, Jr., Devah Pager & Jörg L. Spenkuch, Racial Disparities in Job Finding and Offered Wages, 56 J. L. & Econ. 633 (2013); Kathleen E. Hull, Employment Discrimination Based on Sexual Orientation: Dimensions of Difference, in Handbook of Employment Discrimination Research 167 (Laura Beth Nielsen & Robert L. Nelson eds., 2005); Eros R. DeSouza, Eric D. Wesselmann & Dan Ispas, Workplace Discrimination against Sexual Minorities: Subtle and Not‐So‐Subtle, 34 Canadian J. Administrative Scis. 121 (2017); Quillian et al., supra note 66; Fong Chan et al., Drivers of Workplace Discrimination against People with Disabilities: The Utility of Attribution Theory, 25 Work 77 (2005). The literature also suggests that people who have more than one marginalized identity are more likely to perceive discrimination than other employees. See, e.g., Elizabeth Hirsh & Christopher J. Lyons, Perceiving Discrimination on the Job: Legal Consciousness, Workplace Context, and the Construction of Race Discrimination, 44 L. & Soc’y Rev. 269, 284 (2010).

⁷⁹ According to Creed and Scully, “visible social identities trigger potentially judgmental and divisive reactions.” W. E. Douglas Creed & Maureen A. Scully, Songs of Ourselves: Employees’ Deployment of Social Identity in Workplace Encounters, 9 J. Mgmt. Inquiry 391, 391 (2000). Increased levels of stigma consciousness make people of color, and people from different ethnic or racial backgrounds and women, more likely to perceive discrimination. See Brenda Major & Cheryl R. Kaiser, Perceiving and Claiming Discrimination, in Handbook of Emp. Discrimination Res. 167 (Laura Beth Nielsen & Robert L. Nelson eds., 2005). Nelson et al.’s 2019 study also showed that lawyers of different races, genders, and sexual orientation are experiencing more overt forms of discrimination. See generally Nelson et al., supra note 5.

⁸⁰ Blanck et al., First Phase, supra note 3, at 38-42.

⁸¹ Due to our intentional oversampling, the proportion of lawyers identifying as disabled or LGBTQ+ in this study is higher than reported in the legal profession overall. The magnitude of these subsamples, therefore, may not be representative of the population in the legal profession. However, they may be considered as comparators to other subpopulations sampled, in particular, for gender, race, and age. Nonetheless, to be able to understand the experiences of these underrepresented groups, oversampling is crucial.

⁸² We evaluated whether our discrimination categories should be combined using the Wald and Likelihood-ratio (“LR”) test. The results suggest that no categories should be combined.

⁸³ We acknowledge that for this initial survey our “no discrimination category” serves as a proxy that is based on the coded responses described in the text. In our next survey follow-up, we plan to revise that question to specifically address the nature (or not) of the discrimination reported.

⁸⁴ This variable reflects a combination of two questions. In the first question, respondents were asked about the six disability-related measures from the U.S. Census Bureau’s American Community Survey (“ACS”). See American Community Survey, https://www.census.gov/programs-surveys/acs. ACS Measures: Are you deaf or do you have serious difficulty hearing? Are you blind or do you have serious difficulty seeing even when wearing glasses? Because of a physical, mental or emotional condition, do you have serious difficulty concentrating, remembering or making decisions? Do you have serious difficulty walking or climbing stairs? Do you have difficulty dressing or bathing? Because of a physical, mental, or emotional condition, do you have difficulty doing errands alone such as visiting a doctor’s office or shopping? In the second question, respondents were asked “Do you have a disability or health condition not reflected in the previous question?” Those who answered “yes” to one or more of the total of seven options presented by the two questions were coded as “1,” and those responding no to all the options as “0.”

⁸⁵ Disability-type variables for this study have been coded to be mutually exclusive. Additional information on the coding of these variables can be provided by the authors upon request.

⁸⁶ For purposes of our analyses, those attorneys who identified as lesbian, gay, bisexual, and queer are coded as one group to increase statistical power to conduct the analyses of interest. See generally Blanck et al., First Phase, supra note 3 (providing a more detailed description of the workplace experience of LGBQ attorneys).

⁸⁷ The phase one survey includes a two-step measure of gender identity. Respondents are asked about their gender identity (man, woman, other), and then, in a follow-up question, they are asked if they consider themselves to be transgender. The answers are coded to be mutually exclusive. While we recognize and acknowledge the felt gender of transgender lawyers, to identify unique challenges related to discrimination for this group, we have coded transgender lawyers as transgender even when they selected their gender as man or woman. In our phase two survey, we plan to further clarify this line of questions.

⁸⁸ We asked respondents to select their age group. However, for our analysis here, it is important to code age as a continuous variable to consider variations in trends regarding discrimination reports by age. Therefore, we use the last two numbers of each respondent’s year of birth to create a unique ID. We use age as a categorical variable in tandem with these responses to double check the numbers and avoid any technical errors. Thirty-three (33) respondents provided a year of birth that did not match their reported age grouping. Our coding of this variable for our current analyses differs somewhat from that used in our previous articles in this series, as we have used relaxed rules to match year of birth and age category, thus increasing our sample size modestly.

⁸⁹ Centering a predictor variable at the mean is a technique to make interpretation of a model easier, especially when interaction terms are included, as is the case in our study. Specifically, in our models, we center age at the mean because age 0 is not a meaningful value for interpreting reports of discrimination. Interpreting such reports at the average age of our sample is much more meaningful. For example, when we interpret the effect of gender on reporting discrimination, we no longer report it as the relative risk of reporting discrimination if you are woman at age 0, but instead as the relative risk of reporting discrimination if you are a woman at age 49.

⁹⁰ We consider organization size and type because prior literature shows these as determinants of reports of discrimination. See, e.g., Hirsh & Lyons, supra note 78, at 287 (“[C]ontrols for workplace size and sector indicated that, counter to expectations, workers in larger establishments were more likely to perceive discrimination whereas those employed by government agencies were equally likely to perceive discrimination, as compared to workers in the private sector.”); Linda R. Shaw, Fong Chan & Brian McMahon, Intersectionality and Disability Harassment: The Interactive Effects of Disability, Race, Age, and Gender, 55 Rehab. Counseling Bull. 82, 88 (2012) (“[W]orking for either a small or very large company seem to place individuals at higher risk of experiencing disability harassment.”).

⁹¹ We consider job tenure at the individual and organizational level as a useful determinant of reports of discrimination. Job tenure is an indicator of individual career advancement and a measure of organizational culture and the willingness and ability to retain people of diverse backgrounds. Consequently, it is a relevant variable to include in our model.

⁹² We use Pearson’s χ² to test for association between variables with a p < 0.1 to reject the null hypothesis that our variables are independent, which is a more liberal exploratory level than the typical p < 0.05 cutoff. The purpose of the exploratory Pearson’sχ² test is to help determine if the different rates of reports of discrimination are more likely due to random chance or due to a person’s individual characteristics. We make this decision based on a p-value that tells us whether reports of discrimination are dependent on various individual characteristics. For p < 0.1, we can suggest with 90% confidence that a certain characteristic is associated with differences in reports of discrimination. Based on these results and our literature review, we make decisions about whether to include variables in our multivariate regression models.

⁹³ Analyses were conducted using Stata. See stata.com.

⁹⁴ Given the nature of our data, the correlation coefficients presented in this table are different. For all dichotomous variables, we have presented phi coefficient, a measure of association between two binary variables. In other cases, we have used the Point-Biserial Correlation coefficient to represent the strength of association between a continuous variable and a binary variable. We use pairwise deletion to calculate the correlation coefficients: See, e.g., Correlation | Stata Annotated Output, Institute for Digital Research and Education Statistical Consulting, https://stats.idre.ucla.edu/stata/output/correlation/ [https://perma.cc/X6M9-SG34] (last visited Nov. 15, 2020) (“When you do pairwise deletion…a pair of data points are deleted from the calculation of the correlation only if one (or both) of the data points in that pair is missing.”). That is, “all available observations are used to calculate each pairwise correlation without regard to whether variables outside that pair are missing.” “correlate” – Correlations (covariances) of variables or coefficients, stata.com, https://www.stata.com/manuals13/rcorrelate.pdf [https://perma.cc/VX77-C7KC] (last visited Nov. 15, 2020) (emphasis added).

⁹⁵ See Table 2, Mental Health variable, r = 0.0485, p = 0.1626. See also Lori Anderson Snyder, Jennifer S. Carmichael, Lauren V. Blackwell, Jeanette N. Cleveland & George C. Thornton III, Perceptions of Discrimination and Justice among Employees with Disabilities, 22 Emp. Resps. & Rts. J. 5, 5 (2010) (“Analyses indicate that disabled employees reported more overt and subtle discrimination and more procedural injustice than their non-disabled counterparts. Examination by the type of disability also revealed that those with non-physical disabilities reported more negative experiences than employees with physical disabilities. Perceived organizational and supervisory support were shown to have promise in reducing the effects of disability status on workplace attitudes and perceptions.”)

⁹⁶ The p-value associated with Pearson’s χ² is displayed to show statistical significance.

⁹⁷ To ease interpretation of descriptive statistics, we have re-coded variables such as gender, race/ethnicity, sexual orientation, age, and tenure into three or more categories to show the nuances across and between different subgroupings. These categories were collapsed to create the major variables reviewed, which also increased the statistical strength of our analyses.

⁹⁸ LR is a statistical test that helps to identify the relative degree of usefulness of our exploratory multivariate modeling. See Appendix Table 1a (using “subtle discrimination” as the baseline category).

⁹⁹ We have conducted numerous diagnostic tests. Specifically, our results suggest that the Independence of Irrelevant Alternatives (IIA) assumption has not been violated. Our results, such as VIF and tolerance level, show that multicollinearity is not an issue in our models. In addition, model specification tests show that our models are correctly specified and that discrepancies between predicted and observed frequencies are small/not significant. To compare models, in addition to LR tests, we have carried out multiple tests and relied on BIC, AIC, and McFadden's R2, among others, to decide if adding 2x2 interactions and other controls would benefit our model.

¹⁰⁰ The results also show no significant relationship between reporting both types and the age of respondents.

¹⁰¹ The main effect of disability for both types of discrimination vs. no discrimination is statistically significant (RRR=3.095, 95% CI = 1.811 - 5.289). The main effect of disability in the model for subtle-only vs. no discrimination (RRR = 1.176, 95% CI = 0.741 - 1.867) and overt-only vs. no discrimination (RRR = 1.088, 95% CI = 0.486 - 2.434) is not statistically significant.

¹⁰² The interaction effect between disability and sexual orientation (RRR = 0.460, 95% CI = 0.228 - 0.926) and gender (RRR = 0.505, 95% CI = 0.279 - 0.916) is statistically significant for those who reported both types of discrimination vs. no discrimination. In Table 4, this interaction effect is not evidenced for those reporting subtle-only (LGBQ RRR = 0.759, 95% CI = 0.408 - 1.412; Women RRR = 0.735, 95% CI = 0.429 - 1.259) and overt-only discrimination (LGBQ RRR = 2.046, 95% CI = 0.617- 6.784; Women RRR = 1.125, 95% CI = 0.436 - 2.901).

¹⁰³ An interaction effect represents the unique effect for one particular grouping (e.g., women with disabilities relative to the converse grouping). As such, the effect for women with disabilities is the joint, additive, or combined component effect for women, individuals with disabilities, and the unique effect for women with disabilities. Even in instances when the interaction coefficient suggests a decrease overall in the risk of reporting discrimination, however, we cannot simply conclude that women with disabilities experience less discrimination relative to women without disabilities. The calculations provided infra regarding such average probabilities provide an estimate of such differences. For a related explanation of interaction effects, see Ralph L. Rosnow & Robert Rosenthal, “SOME THINGS YOU LEARN AREN’T SO”: Cohen's Paradox, Asch's Paradigm, and the Interpretation of Interaction, 6 Psychol. Sci. 3 (1995) (providing a related explanation of interaction effects).

¹⁰⁴ The main effect of sexual orientation for reports of both types of discrimination vs. no discrimination (RRR = 9.916, 95% CI = 5.591 - 17.584) and for reports of subtle discrimination vs. no discrimination (RRR = 4.892, 95% CI = 3.111 - 7.694) is statistically significant. Sexual orientation is not significantly associated with reports of overt-only discrimination vs. no discrimination (RRR = 1.142, 95% CI = 0.357 - 3.654).

¹⁰⁵ The effect of sexual orientation differs by gender for reports of both types of discrimination vs. no discrimination (RRR = 0.092, 95% CI = 0.047 - 0.181) and subtle-only discrimination vs. no discrimination (RRR = 0.288, 95% CI = 0.165 - 0.504). It does not differ for reports of overt-only discrimination vs. no discrimination (RRR = 0.475, 95% CI = 0.126 - 1.785).

¹⁰⁶ Being transgender is not associated with reports of both types of discrimination (RRR = 2.267, 95% CI = 0.763 - 6.735), subtle-only discrimination (RRR = 1.444, CI = 0.497 - 4.198), or overt-only discrimination (RRR = 3.709, 95% CI = 0.584 - 23.531) in Model 3. However, it is associated with both types and overt-only discrimination in the first two models, as discussed previously.

¹⁰⁷ The main effect of being a woman on reporting both types of discrimination vs. no discrimination (RRR = 12.712, 95% CI = 8.173 - 19.771), reporting subtle-only discrimination vs. no discrimination (RRR = 4.946, 95% CI = 3.661 - 6.682), and reporting overt-only discrimination vs. no discrimination (RRR = 3.528, 95% CI = 2.036 - 6.113) is statistically significant.

¹⁰⁸ The interaction term between women and race/ethnicity is statistically significant for reports of both types of discrimination vs. no discrimination (RRR = 0.283, 95% CI = 0.147 - 0.547), reports of subtle-only discrimination vs. none (RRR = 0.430, 95% CI = 0.240 - 0.770), and reports of overt-only discrimination vs. none (RRR = 0.206, 95% CI = 0.071 - 0.596).

¹⁰⁹ The main effect of race/ethnicity for reporting both types of discrimination vs. no discrimination (RRR = 5.147, 95% CI = 2.923 - 9.064), reporting subtle-only discrimination vs. no discrimination (RRR = 2.753, 95% CI = 1.697 - 4.465), and reporting overt-only discrimination vs. no discrimination (RRR = 3.307, 95% CI = 1.482 - 7.383) is statistically significant.

¹¹⁰ The main effect of age for reports of subtle-only discrimination vs. no discrimination (RRR = 0.969, 95% CI = 0.958 - 0.979) is statistically significant, while that for reports of both types of discrimination vs. no discrimination (RRR = 0.998, 95% CI = 0.987 - 1.009) and overt-only discrimination vs. no discrimination (RRR = 0.988, 95% CI = 0.970 - 1.007) is not statistically significant.

¹¹¹ The main effect of tenure for reporting subtle-only vs. no discrimination (RRR = 1.017, 95% CI = 1.003 - 1.030) is statistically significant. This effect is not significant for those who report both types vs. no discrimination (RRR = 0.995, 95% CI = 0.981 - 1.009) and those who report overt-only vs. no discrimination (RRR = 1.007, 95% CI = 0.983 - 1.030).

¹¹² The main effect of private organization for reports of both types of discrimination vs. no discrimination (RRR = 0.673, 95% CI = 0.527 - 0.860), reports of subtle-only discrimination vs. no discrimination (RRR = 0.776, 95% CI = 0.620 - 0.970), and reports of overt-only discrimination vs. no discrimination (RRR = 0.538, 95% CI = 0.357 - 0.811) is statistically significant.

¹¹³ The main effect of organization size for reports of subtle-only discrimination vs. no discrimination (RRR = 1.284, 95% CI = 0.989 - 1.667) is statistically significant, while it is not statistically significant for reports of both types of discrimination vs. no discrimination (RRR = 1.118, 95% CI = 0.818 - 1.527) and for reports of overt-only discrimination vs. no discrimination (RRR = 0.863, 95% CI = 0.488 - 1.525).

¹¹⁴ However, the main effects for the transgender variable were not statistically significant when controlling for organizational and job characteristics, as well as taking into account the small cell size.

¹¹⁵ See Teri A. Garstka et al., How Young and Older Adults Differ in their Responses to Perceived Age Discrimination, 19 Psychol. & Aging 326, 331 (2004) (“[Our data] are among the first data to illustrate that group identification may be a response that enables older adults to avoid some of the negative effects of age discrimination.”); Eun Ha Namkung & Deborah Carr, Perceived Interpersonal and Institutional Discrimination among Persons with Disability in the US: Do Patterns Differ by Age?, 239 Soc. Sci. & Med., Art. 112521 (2019) (showing that the link between disability and perceived discrimination is less pronounced among older adults relative to younger adults).

¹¹⁶ See, e.g., Shaw et al., supra note 90 at 86 (demonstrating that charging parties in the 35 to 43 age group had a higher harassment allegation rate than any other age group, including the 55-64 age group and the 65+ age group).

¹¹⁷ See, e.g., Hirsh & Lyons, supra note 78, at 292 (“[W]e find support for the claim that the likelihood of invoking discrimination language to explain negative workplace experiences varies with a sense of entitlement and knowledge of the law. Although our data do not allow us to observe these processes directly, we argued that employees’ personal and workplace characteristics may structure feelings of entitlement or legal knowledge, and our results generally support these expectations. Education and age translate into greater odds of perceiving discrimination for some lower ascriptive status groups. Furthermore, workers with job authority, promotion experience, and union members are most likely to perceive workplace racial discrimination.”).

¹¹⁸ See Foster & Hirst, supra note 11, at 15 (“Findings indicate a significant proportion of disabled people in the legal profession have experienced forms of ill-treatment, bullying, or discrimination, the majority of which were associated with their disability. Our survey of solicitors and paralegals found 60% had experienced ill-treatment in the workplace and of these 80% believed it was related to disability. Among barristers 45% reported having experienced ill-treatment and 71% of these believed this was related to disability.”)

¹¹⁹ See Nelson et al., supra note 5, at 1058 (“For LGBTQ respondents, men and women report similar levels of discrimination. LGBTQ women and non-LGBTQ women report similar levels of discrimination, suggesting that gender bias is equally [as] pervasive as sexual orientation bias for women. However, LGBTQ men report almost twice as much discrimination as do non-LGBTQ men.”).

¹²⁰ Collins et al., supra note 7, at 1654 (“While it may be unsurprising that women will perceive more gender bias and racial minorities will perceive more racial bias by professional peers, our findings about minority women's perceptions tell an important story that is often overlooked in the literature. Specifically, minority female attorneys, being part of two outgroups, occupy a distinctive place in a profession traditionally dominated by white males. Our results show that the women of color group is the only one that reports higher levels of unfair treatment based on race, gender, and age.”); Nelson et al., supra note 5, at 1074 (“Women, and especially women of color, men of color, and LGBTQ attorneys are substantially more likely to perceive that they have been the target of biased treatment than their white male counterparts. This pattern holds through all three waves corresponding to different stages of the respondents’ careers. And it holds across employment contexts: in the public sector as well as in private practice; and in large organizations and small ones. And it holds despite controlling for a full range of other independent variables that might affect these perceptions.”).

¹²¹ See Dinovitzer & Garth, supra note 6, at 339.

¹²² Blanck et al., First Phase, supra note 3, at 47; Foster & Hirst, supra note 11, at 15; Nelson et al., supra note 5, at 1074; see also Peter Blanck, Thirty Years of the Americans with Disabilities Act: Law Students and Lawyers as Plaintiffs and Advocates, 45 N.Y.U. Rev. L. & Soc. Change (Harbinger) 8 (2021) [hereinafter Blanck, Plaintiffs and Advocates] (providing anecdotes of individuals with disabilities experiencing forms of ill-treatment, oppression, and discrimination in the legal profession).

¹²³ Chan et al., supra note 78, at 85; Dovidio et al., supra note 66, at 173; Richard M. Keller & Corinne E. Galgay, Microaggressive Experiences of People with Disabilities, in Microaggressions and Marginality: Manifestation, Dynamics, and Impact 241, 248 (Derald Wing Sue ed., 2010). See generally M. V. Lee Badgett, Employment and Sexual Orientation: Disclosure and Discrimination in the Workplace, 4 J. Gay & Lesbian Soc. Servs. 29 (1996) (providing the discrimination experiences of people who identify as LGBTQ); M. V. Lee Badgett et al., Bias in the Workplace: Consistent Evidence of Sexual Orientation and Gender Identity Discrimination (2007) (providing evidence of sexual orientation and gender identity discrimination).

¹²⁴ See Ryan Miller et al., LGBTQ+ College Students with Disabilities: Demographic Profile and Perceptions of Well-Being, 18 J. LGBT Youth 60 (2021).

¹²⁵ Carrie Griffin Basas, The New Boys: Women with Disabilities and the Legal Profession, 25 Berkeley J. Gender, L. & Just. 32, 39 (2010).

¹²⁶ Arif Jetha et al., Disability and Sex/Gender Intersections in Unmet Workplace Support Needs: Findings from a Large Canadian Survey of Workers, 64 Am. J. Indus. Med. 149, 149 (2020).

¹²⁷ See, e.g., Bizzell, supra note 7, at 71 (“Clearly, LGBTQ+ individuals continue to confront challenges both in our society at large and in the workplace. The Out Now Global LGBT2020 Study, which surveyed more than 100,000 LGBTQ+ individuals, found that 24% of lesbians, 30% of gay men, 40% of bisexuals, and 55% of transgender employees in the U.S. believed that coming out could negatively impact future promotions. Thus, it is not surprising that a 2016 report from Credit Suisse reports that 41% of LGBTQ+ workers in the U.S. and 72% of senior LGBTQ+ executives say they have not come out openly at work.”); see also Blanck, Hyseni, & Wise, supra note 3 (many LGBTQ+ attorneys have reason to share similar concerns).

¹²⁸ Fitore Hyseni & Peter Blanck, Diversity and Inclusion in the American Legal Profession: Determinants of Identity Disclosure for Lawyers with Disabilities and Who Identify as LGBTQ+, J. Cancer Survivorship (forthcoming 2021).

¹²⁹ Nelson et al., supra note 5, at 1076; see also Badgett, supra note 123, at 40; Badgett et al, supra note 123, at 2.

¹³⁰ Badgett et al., supra note 123, at 2.

¹³¹ Blanck et al., First Phase, supra note 3, at 47; Kevin L. Nadal et al., Sexual Orientation Microaggressions: “Death by a Thousand Cuts” for Lesbian, Gay, and Bisexual Youth, 8 J. LGBT Youth 234, 235 (2011); see also Melanie A. Morrison, Todd G. Morrison & Randall Franklin, Modern and Old-Fashioned Homonegativity Among Samples of Canadian and American University Students, 40 J. Cross-Cultural Psychol. 523, 524-25, 540 (2009); DeSouza et al., supra note 78, at 122-123.

¹³² See, e.g., Blanck et al., Workplace Accommodations, supra note 3; see also Alecia M. Santuzzi et al., Invisible Disabilities: Unique Challenges for Employees and Organizations, 7 Indus. & Organ. Psychol. 204, 207-08 (2014).

¹³³ Hyseni & Blanck, supra note 128.

¹³⁴ Ryan H. Nelson & Michael Ashley Stein, Erasing Workers’ Identities, 47 Am. J.L. & Med. 76, 77 (2021).

¹³⁵ Id.

¹³⁶ Neumeier & Brown, supra note 13, at 86-87 (“All disabled people face the prospect of misunderstanding, refusal of accommodations, and denial of access needs. Nonetheless, those of us whose access needs are harder to explain than asking for access to a ramp or to Brailled text (both of which are not necessarily guaranteed or even widely available) often face constant refusal or denial of lesser known or recognized accommodation requests like needing a private office space with a door due to sensory issues, chemical sensitivities, or psychosis, needing assistance with completing routine paperwork due to ADD, traumatic brain injury, or chronic fatigue, or needing a change of lighting because of photosensitive epilepsy, vision processing disabilities, or migraines. Refusal to even recognize that these access needs are legitimate or real can and does lead to sidelining and pushout for disabled legal professionals whose disabilities do not prevent them from doing the work but do mean that they must do the work differently than nondisabled colleagues. … Similarly, not all LGBTQ+ people are represented equally in the legal profession or in research about our lives and experiences. Groups of people within the LGBTQ+ community who face particular marginalization include transfeminine people – especially trans women – and Two Spirit people, asexual and aromantic people, as well as LGBTQ+ people who have done sex work, who have been homeless, who have been incarcerated, or who are living with HIV (which is also a disability). People from all of these communities or who have had all of these experiences can want to and do enter the legal profession. Not surprisingly to us, multiply marginalized people within LGBTQ+ communities, including disabled people, fat people, immigrants, and people of color, face oppression both within and outside the LGBTQ+ community.”).

¹³⁷ See id. at 91 (“Research can include educating oneself on specific types of disabilities and relevant accommodations as well as universal design practices. Human resources and diversity professionals should also take the time to learn more about the communities they are seeking to recruit from, and especially about the experiences (in the workplace and more generally) of people living at the intersection of multiple forms of structural oppression. Organizations can and should pay members of the affected communities for professional consultations where possible.”).

¹³⁸ Anna Z. Brzykcy & Stephan A. Boehm, No Such Thing as a Free Ride: The Impact of Disability Labels on Relationship Building at Work, 2021 Human Rel. 1, 18-19, 22.

¹³⁹ See generally Blanck, Disability, supra note 2; Blanck, Emerging, supra note 12; Blanck, ADA at Thirty, supra note 12; Blanck, America Better Off, supra note 12.

¹⁴⁰ Nelson et al., supra note 5, at 1076; see generally Williams et al., supra note 24; Hansen, supra note 68, at 62. Our basic regression models, without inclusion of covariates and interaction terms, suggest that transgender lawyers, as compared to men, have a higher relative risk of experiencing both types of discrimination as well as overt discrimination, as compared to no discrimination, and this result is in accord with prior studies. Workplace discrimination is a major challenge for transgender people. In six studies conducted between 1996 and 2006, transgender people reported that they were fired (13% - 56%), denied employment (13% - 47%), harassed (22% - 31%), and denied a promotion (19%) based on their gender identity. Badgett et al. supra note 123, at 3. Prior studies show that transgender people are almost three times more likely to experience forms of discrimination than are those who do not identify as transgender. See E. L. Lombardi, R. A. Wilchins, D. Priesing & D. Malouf, Gender Violence: Transgender Experiences with Violence and Discrimination, 42 J. Homosexuality 89, 90 (2002); Rosich, supra note 74, at 1; see also Shanna K. Kattari et al., Policing Gender through Housing and Employment Discrimination: Comparison of Discrimination Experiences of Transgender and Cisgender LGBQ Individuals, 7 J. Soc’y for Soc. Work & Res. 427, 428; Davidson, supra note 74, at 10; Waite, supra note 74, at 21.

¹⁴¹ Caroline Jalain, Gender-Differential Effects of Perceived Discrimination on Lawyers’ Job Satisfaction: A General Strain Theory Approach (May 2020), https://ir.library.louisville.edu/etd/3411 [https://perma.cc/4RJU-QJ3C] (Electronic Doctoral Dissertation, Paper 3411, University of Louisville).

¹⁴² Kimberly Jade Norwood, Gender Bias as the Norm in the Legal Profession: It's Still a [White] Man's Game, 62 Wash. U. J. L. & Pol'y 25 (2020).

¹⁴³ See Saks, supra note 40.

¹⁴⁴ Foster and Hirst, supra note 11, at 12-15 (“Ill-treatment or fear of discrimination associated with disability did not always decline with seniority, which contradicts what is often commonly assumed. The report refers to adjustments requested by successful and profitable senior staff that were either denied or only secured with difficulties and ill-will. Because identifiable senior disabled people are numerically few, the profession lacks established precedents for making adjustments to senior roles, which means that, without intervention, this situation will persist.”).

¹⁴⁵ Raymond N. C. Trau, The Impact of Discriminatory Climate Perceptions on the Composition of Intraorganizational Developmental Networks, Psychosocial Support, and Job and Career Attitudes of Employees with an Invisible Stigma, 54 Hum. Res. Mgmt. 345, 359 (2015) (“[I]ndividuals in nondiscriminatory climate were more likely to disclose their stigmatized identity and had higher psychosocial support from their developmental networks, signaling that this kind of climate may foster reciprocated trust and positive treatments between the target (i.e., employees with an invisible stigma) and the observer (their network members).).”

¹⁴⁶ For excellent analyses of the importance of organizational D&I policies and culture in the legal profession and in relation to the findings herein, see Angela C. Winfield, Upending “Normal”: Toward an Integrated and Intersectional Approach to Diversity, Equity, and Inclusion in the Legal Profession, 47 Am. J.L. & Med. 109 (2021), and the discussion of the implications of specific inclusive policies in the legal workplace in Nelson & Ashley, supra note 134, at 79. See also Miller et al, supra note 124, at 72 (“Students reported higher frequency of environmental (e.g., seeing or hearing negative or inaccurate messages about being LGBQ) than interpersonal (e.g., being targeted directly/individually for insults and invalidations) microaggressions in their experiences on campus, which aligns with previous findings among LGBTQ+ college students with disabilities.”).

¹⁴⁷ For discussion of the relationship between reports of discrimination and earnings disparity in the legal profession, see Heather Antecol, Deborah A. Cobb-Clark & Eric Helland. Bias In the Legal Profession: Self-Assessed versus Statistical Measures of Discrimination, 43 J. Legal Stud. 323, 351 (2014) (“In moving forward, we need to know more about the pervasiveness of intangible (that is, unrelated to income) forms of bias and their consequences for individuals’ legal careers. If self-assessed bias is not the result of earnings disparity, then what drives it? In particular, do the new complex organizational structures and compensation schemes in law firms provide opportunities for more intangible bias to occur? Unlike the lockstep nature of the old-style partnership track, these new arrangements foster earnings diversity among colleagues doing similar work. To the extent that the source of this diversity is not fully transparent, information asymmetries may provide law firms with additional opportunities to discriminate among their employees. We also need to understand the consequences of self-assessed bias for individuals’ future legal careers. How does believing that one has been subject to discrimination or harassment from ones’ employers, colleagues, or clients affect lawyers’ satisfaction with their legal careers? Will those who believe they have experienced bias leave the legal profession to pursue opportunities elsewhere?”) (citation omitted).

¹⁴⁸ See Blanck et al., First Phase, supra note 3, at 48, 49.

¹⁴⁹ See generally Rose L. Molina et al., Creating a Culture of Micro-Affirmations to Overcome Gender-Based Micro-Inequities in Academic Medicine, 132 Am. J. Med. 785, 786 (2019); Nan M. Seuffert, Trish Mundy & Susan Price, Diversity Policies Meet the Competency Movement: Towards Reshaping Law Firm Partnership Models for the Future, 25 Int’l J. Legal Pro. 31, 47 (2018); Alain Topor, Tore Dag Bøe1 & Inger Beate Larsen, Small Things, Micro-Affirmations and Helpful Professionals Everyday Recovery-Orientated Practices according to Persons with Mental Health Problems, 54 Cmty. Mental Health J. 1212, 1218 (2018).

¹⁵⁰ See Jill Bezyak et al., Disability Inclusion Strategies: An Exploratory Study, 53 J. Vocation. Rehabil. 183, 186 (2020) (“Disability inclusion policies and procedures were identified as the most important strategy and has the strongest correlation with hiring intention.”); see also Neumeier and Brown, supra note 13, at 84 (positing a relationship among organization culture, commitment, and reputation for D&I and discrimination experiences, and calling for qualitative research to explore how such discourse may hamper an individual’s ability to recognize and report bias and discrimination); id. (“Alternately, researchers could take a more open-ended approach of collecting narratives from disabled and queer attorneys about their experiences working in nonprofit organizations and government agencies, and identifying common experiences that could form the basis for more targeted empirical research. It would be particularly interesting to learn the extent to which the reputation of public interest organizations as progressive and inclusive spaces influences marginalized attorneys’ ability to recognize workplace bias and discrimination as it is happening, and the legal profession’s willingness to believe that it is occurring there.”).

¹⁵¹ See, e.g., Peter Blanck, Principal Investigator, Rehabilitation Research Training Center on Employment Policy, funded by the U.S. National Institute on Disability, Independent Living, and Rehabilitation Research (NIDILRR) (2020), https://bbi.syr.edu/2020/09/congratulations-on-bbis-new-nidilrr-disability-inclusive-employment-policy-rehabilitation-research-and-training-centers-rrtcs-grant/ [https://perma.cc/FQ5F-MWCY].

¹⁵² See generally Blanck, ADA at Thirty, supra note 12. For a literature review on the COVID-19 pandemic and its effects on the disability community, see Emily M. Lund, et al., The COVID-19 Pandemic, Stress, and Trauma in the Disability Community: A Call to Action, 65 Rehab. Psychol. 313 (2020); see also Valerie J. Bradley, How COVID-19 May Change the World of Services to People with Intellectual and Developmental Disabilities, 58 Intell. & Dev. Disabilities 355, 356 (2020); Vida Abedi et al., Racial, Economic and Health Inequality and COVID-19 Infection in the United States, J. Racial & Ethnic Health Disparities (2020), DOI: 10.1007/s40615-020-00833-4. For an example of discrimination concerns raised even before the pandemic, see Amie O’Shea et al., Experiences of LGBTIQA+ People with Disability in Healthcare and Community Services: Towards Embracing Multiple Identities, 17 Int’l J. Env’t Res. & Pub. Health 1, 12 (2020), DOI: http://dx.doi.org/10.3390/ijerph17218080 (appraisal of discrimination in health care provision for LGBTQA+ people).

¹⁵³ Hyseni & Blanck, supra note 128.

¹⁵⁴ Saks, supra note 40.

¹⁵⁵ See Muhammad Rahman et al., Mental Distress and Human Rights Violations during COVID-19: A Rapid Review of the Evidence Informing Rights, Mental Health Needs, and Public Policy around Vulnerable Populations, 11 Frontiers in Psychiatry 1, 11-12 (2021).

¹⁵⁶ Kevin Kniffin et al., COVID-19 and the Workplace: Implications, Issues, and Insights for Future Research and Action, 76 Am. Psychol. 63, 69 (2021), DOI: 10.1037/amp0000716.

¹⁵⁷ Jasin Wong et al., Job Accommodations, Return to Work and Job Retention of People with Physical Disabilities: A Systematic Review, J. Occupational Rehab. (forthcoming 2021), DOI: https://doi-org.libezproxy2.syr.edu/10.1007/s10926-020-09954-3.

¹⁵⁸ Blanck, Plaintiffs and Advocates, supra note 122.

¹⁵⁹ Winfield, supra note 146, at 113 (“Based on my professional knowledge and experience, the Blanck et al. research can provide the beginnings of a basis for developing a more unified approach to diversity, equity and inclusion in at least three respects. First, it can help DEI practitioners in the legal industry understand and interrupt bias across multiple identities rather than focusing exclusively on one identity at a time.”).

¹⁶⁰ See Major & Kaiser, supra note 79, at 286. As for other studies that rely on self-reports of discrimination, our study cannot fully address or eliminate issues resulting from social disability or recall bias. Nonetheless, we have attempted to minimize such effects by not relying on an in-person interviewer, and the survey was anonymously, individually, and confidentially disseminated. In addition, given that attorneys generally are informed about issues of bias and discrimination through education and practice, recall bias likely is further minimized as those instances that are considered to be “discrimination” likely will stick out.

¹⁶¹ See, e.g., Jalain, supra note 141, at 71 (“Further, as workplace discrimination impacts productivity, performance and job satisfaction, programs must be put in place to reduce the incidence of workplace discrimination, especially for women.”).

¹⁶² See, e.g., Neumeier & Brown, supra note 13, at 85 (“Many disabled and LGBTQ+ legal professionals are multiply marginalized because of race, class, immigration status, religion, or other aspects of their identities or experiences. Our experiences are not adequately captured in the current study, but future research driven by scholars and advocates with lived experience can begin to identify ways that disabled and LGBTQ+ legal professionals experience across different marginalized identities and experiences. It would be helpful to have disaggregated and disambiguated data identifying differences in experiences of discrimination between, for instance, Southeast Asian attorneys with disabilities and Indigenous Latinx attorneys with disabilities, or between trans attorneys with physical disabilities and neurodivergent trans attorneys. In particular, it would be helpful to have specific data about the ways that oppressive systems, processes, and policies impact multiply marginalized people on the basis of multiple marginalized identities.”).

¹⁶³ For a critique of this type of sampling method, see Yair Listokin & Ray Noonan, Measuring Lawyer Well-Being Systematically: Evidence from the National Health Interview Survey, J. Empirical Legal Stud. (2021), DOI:10.1111/jels.12274. See also Tweedy & Yescavage, supra note 11, at 735 (“[O]ur approach of contacting listservs and LGBT and bisexual organizations probably resulted in our attracting respondents who were much more likely to be out about their sexuality than bisexuals in general, which in turn would make our respondents more likely to be targets of discrimination. However, due to the difficulty of finding bisexual respondents, this appears to be a common method of survey distribution when attempting to study bisexuals.”).

¹⁶⁴ See, e.g., Neumeier & Brown, supra note 13, at 87, (“Researchers should intentionally seek out experiences of hyper-marginalized and multiply-marginalized LGBTQ+ people, including data on actual hiring and retention practices, as well as narratives of discrimination. Otherwise, research will continue to prioritize and privilege the experiences of wealth-privileged, white, abled, thin, and masculine-presenting people within the LGBTQ+ community – groups that are almost certainly the most likely to attain long-term success within the legal profession.”).

¹⁶⁵ For articles addressing stress-related mental health issues related to the pandemic, see Emma E. McGinty et al., Psychological Distress and Loneliness Reported by US Adults in 2018 and April 2020, 324 J. Am. Med. Assoc. (JAMA) 93 (2020) (Research Letter); see also Ling Liu et al., Perceived Discrimination and Mental Distress amid the COVID-19 Pandemic: Evidence from the Understanding America Study, 59 Am. J. Preventive Med. 481 (2020); E. Alison Holman et al., The Unfolding COVID-19 Pandemic: A Probability-Based, Nationally Representative Study of Mental Health in the United States, 6 Sci. Advances 1 (2020).

¹⁶⁶ For discussion of the importance of considering the disproportionate impact of COVID-19 on certain groups in relation to the legal profession, see Winfield, supra note 146, at 110; Margaret Turk & Monika Mitra, ADA 30 and Beyond: The Urgent Need for Intersectional Research, 13 Disability & Health J. (2020), DOI: 10.1016/j.dhjo.2020.100984.

¹⁶⁷ Bureau of Labor Statistics, Household Data Annual Averages: Median Weekly Earnings of Full-Time Wage and Salary Workers by Detailed Occupation and Sex (2020).

¹⁶⁸ We are examining the association between discrimination reports and likelihood of disclosing. See, e.g., Hyseni & Blanck, supra note 128. For additional discussion, see Miller et al., supra at 124 (“Because a majority of students reported they did not use disability accommodations, institutions should evaluate disability service provision on campus, including the language used to describe and promote accommodations—noting, for instance, that psychological and psychiatric disabilities can be accommodated and that students of all genders and sexualities are welcome—and creating an inclusive environment that acknowledges students’ multiple, intersecting identities.”).

¹⁶⁹ For discussion of the challenges of requesting workplace accommodations for those without a “documented” ADA disability, see Katherine A. Macfarlane, Disability without Documentation 36 (Feb. 7, 2021) (“I began this project in 2019, interested in uncovering the origins of the medical documentation requirement. But the project took on greater significance as people around the country struggled to convince their employers that because they are high-risk for serious illness from COVID-19, they must work from home. Based on my own anecdotal experience assisting friends, students, and colleagues, employers did not relax medical documentation requirements during the pandemic. And, perhaps due to politics or sheer burnout, some doctors were unwilling to back up a work-from-home request.”).

¹⁷⁰ Jalain, supra note 141, at 70 (“Future research should try to interview every respondent who participated in the project. This would provide extensive knowledge about how lawyers truly feel about their job and how their feelings and perceptions may have evolved in the course of their first ten years of practice.”).

¹⁷¹ See, e.g., Neumeier & Brown, supra note 13, at 88 (“Future research could examine whether and to what extent disabled and LGBTQ+ employees’ perceptions of their workplace’s climate, infrastructure, and culture have changed after implementation of these types of equity and diversity-focused policies. Where research shows that such policies have not necessarily resulted in improved experiences, researchers could align with directly impacted community members to identify what policy and programmatic changes, if any, could have greater and/or longer-term positive effect. Such research will be useful regardless of whether it shows that such policies have worsened conditions such as by leading to increased harassment or ostracism of marginalized people, made no significant changes to the working environment, or have significantly improved marginalized people’s experiences.”).

¹⁷² Two recent U.S. Supreme Court decisions illustrate how the area of multiple minority rights is evolving right now and is likely to continue to do so in the future—in ways that it is hard to predict. In Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020), the Court narrowed the rights of people with disabilities under the ADA by broadening the “ministerial exception” that exempts religious institutions from complying with certain aspects of the ADA. In contrast, in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), the Court broadened the protections provided by Title VII of the Civil Rights Act by holding that the Act’s prohibition of discrimination against employees on the basis of “sex,” inter alia, does include sexual orientation.

¹⁷³ Compare Eli Wald, A Primer on Diversity, Discrimination, and Equality in the Legal Profession or Who is Responsible for Pursuing Diversity and Why, 24 Geo. J. Legal Ethics 1079, 1142 (2011) (“Diversity, therefore, should not only be aspired to; it must be pursued in concrete steps. It should not be left to voluntary pursuits; it must be mandatory upon all segments of the profession.”); Alex B. Long, Employment Discrimination in The Legal Profession: A Question of Ethics? 2016 U. Ill. L. Rev. 445, 485 (“The lack of diversity within the legal profession remains a serious problem. But existing employment discrimination statutes are poorly equipped to address the structural causes of workplace discrimination that often occur. It is therefore unrealistic to expect rules of professional conduct based on these laws to root out discrimination and increase diversity in the legal profession in the traditional sense. But that is not a reason to reject the adoption of ethics rules that speak to the problem of employment discrimination and, more generally, the problems of bias, access to justice, and underrepresentation in the legal system. By adopting such rules, the legal profession could take a soft regulatory approach to these problems in an attempt to educate and motivate lawyers and law firms with regard to the problems. This type of gentle regulatory nudge might potentially yield more dividends than reliance on legal rules alone.”); Kristy D'Angelo-Corker, Don't Call Me Sweetheart: Why the ABA's New Rule Addressing Harassment and Discrimination Is So Important for Women Working in the Legal Profession Today, 23 Lewis & Clark L. Rev. 263, 303 (2019) (“In order to ensure that the progress that women have made, and are currently making, does not slow down or stop entirely, it is necessary to not only put rules into effect banning the discriminatory or harassing behavior, but also to establish education and training initiatives in law school, at the start of a lawyer's career, and to continue that training once attorneys enter the work force through firm training and CLE requirements.”).

¹⁷⁴ As suggested by the review earlier in this article of prior studies, we are not alone in our efforts to mitigate bias and discrimination facing persons with minority identities and to further a culture of inclusion. And these efforts are not limited to academics and institutional observers. For example, in the fall of 2020, the international law firm of Reed Smith held, virtually, its fourth Diversity, Equity and Inclusion Summit, during which the firm and its clients discussed the need for greater awareness and support of the unique issues facing lawyers with differing disabilities over their professional careers. An author of this article, Blanck, was a speaker at the summit, which included a specific focus on people of multiple intersectional backgrounds. The Key Takeaways from this summit highlighted many of the issues discussed in this article, including, “The ABA study on LGBT+ and lawyers with disabilities highlights that intersectionality of nonvisible diversity (LGBTQ and disability) lawyers experience higher levels of discrimination especially where mental health is involved,” and the need for “Inclusion of Mixed-Visible and Nonvisible Diversity.” Reed Smith, 2020 Diversity, Equity and Inclusion Summit—Key Takeaways Report 20 (Oct. 2020), https://communications.reedsmith.com/111/4041/uploads/dei-summit-key-takeaways-report.pdf [https://perma.cc/5ZPU-BEYB]; Bizzell, supra note 7, at 73-74 (“No single policy, program, or practice will eliminate workplace bias and discrimination against LGBTQ+ individuals, or any other individual. Instead, creating an inclusive and welcoming workplace requires a holistic approach that utilizes thoughtful research and good data. Utilizing a three-pronged, macro- and micro-level research approach focused on data-based problem identification will help corporations and law firms develop programs and practices that ensure all LGBTQ+ attorneys have a workplace experience that is not only free from discrimination and bias but that also helps LGBTQ+ attorneys succeed”).

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Diversity and Inclusion in the American Legal Profession: Discrimination and Bias Reported by Lawyers with Disabilities and Lawyers Who Identify as LGBTQ+

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