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Published online by Cambridge University Press: 12 July 2021
“Bring your whole self to work” remains a common mantra of supporters of workplace diversity, equity, and inclusion (“DEI”).1 For example, disability rights advocates have long contended that hiding or downplaying one’s disability from one’s colleagues at work “create[s] an invisible layer of additional work for the individual” in being accepted at the job and negatively affects productivity.2 LGBTQ+ rights advocates have raised similar points, noting that hiding or downplaying one’s sexual orientation or gender identity from one’s colleagues hinders internal advancement of LGBTQ+ workers.3 As recently as 2019, however, a Deloitte study found that sixty-one percent of workers hid or downplayed one or more of their identities from their colleagues at work.4
Ryan H. Nelson is a Research Associate at the Harvard Law School Project on Disability and a member of the adjunct faculty at Boston University School of Law and New England Law | Boston.
Michael Ashley Stein is the co-founder and Executive Director of the Harvard Law School Project on Disability and a Visiting Professor at Harvard Law School since 2005.
1 See, e.g., Ahmad, Sumreen, Bring Your Whole Self to Work, Chief Talent Dev. Officer Mag. (June 15, 2018), https://www.td.org/magazines/ctdo-magazine/bring-your-whole-self-to-work [https://perma.cc/86GH-YZLD].Google Scholar
2 Nancy Doyle, Bring Your Whole Self to Work! Hiding Disability at Work Is Damaging to Productivity, Forbes (Dec. 3, 2019, 12:01 PM), https://www.forbes.com/sites/drnancydoyle/2019/12/03/bring-your-whole-self-to-work-hiding-disability-at-work-is-damaging-to-productivity/.
3 Barbara Harvey, The Surprising Reasons Most LGBT+ People Are Not Out at Work, Accenture: Accenture Res. (July 2, 2020), https://www.accenture.com/us-en/blogs/accenture-research/the-surprising-reasons-most-lgbt-people-are-not-out-at-work [https://perma.cc/D6XJ-XNQZ].
4 Deloitte, Uncovering Talent: A New Model of Inclusion 3 (2019), https://www2.deloitte.com/content/dam/Deloitte/us/Documents/about-deloitte/us-about-deloitte-uncovering-talent-a-new-model-of-inclusion.pdf [https://perma.cc/8DVB-VKHS]. The study refers only to “covering,” but uses that term to encompass what scholars call both covering and passing. See infra note 9 & accompanying text for explanations of these terms.
5 Peter Blanck, Fitore Hyseni & Fatma Altunkol Wise, Diversity and Inclusion in the American Legal Profession: Discrimination and Bias Reported by Lawyers with Disabilities and Lawyers Who Identify as LGBTQ+, 47 Am. J.L. & Med. 9 (2021).
6 Id. at 23.
7 There were insufficient responses from transgender lawyers to reach this conclusion vis-à-vis gender identity. Id. at 49.
8 Id. at 48.
9 Kenji Yoshino, Covering, 111 Yale L.J. 769, 773 (2002) [hereinafter Covering I]; see also Kenji Yoshino, Covering: The Hidden Assault on our Civil Rights (2006).
10 Covering I, supra note 9, at 772.
11 Nancy E. Dowd, Masculinities and Feminist Legal Theory, 23 Wis. J.L. Gender & Soc’y 201, 225 (2008).
12 Blanck et al., supra note 5, at 22-23.
13 Id. at 17 (citing Lilia M. Cortina, Unseen Injustice: Incivility as Modern Discrimination in Organizations, 33 Acad. Mgmt. Rev. 55, 71 (2008); Mary P. Rowe, Barriers to Equality: The Power of Subtle Discrimination to Maintain Unequal Opportunity, 3 Emp. Resps. & Rts. J. 153 (1990)).
14 Raytheon Co. v. Hernandez, 540 U.S. 44, 53 (2003).
15 Bostock v. Clayton Cty., 140 S. Ct. 1731, 1737 (2020) (discrimination against homosexual or transgender employees is covered under Title VII); Ricci v. DeStefano, 557 U.S. 557, 577 (2009) (explaining disparate treatment and disparate impact under Title VII).
16 Anthony Michael Kreis, Defensive Glass Ceilings, 88 Geo. Wash. L. Rev. 147, 165–66 (2020) (quotations and citations omitted).
17 Michael Ashley Stein & Michael E. Waterstone, Disability, Disparate Impact, and Class Actions, 56 Duke L.J. 861, 878 (2006); see also George Rutherglen, Disparate Impact, Discrimination, and the Essentially Contested Concept of Equality, 74 Fordham L. Rev. 2313, 2319 (2006).
18 Stein & Waterstone, supra note 17, at 901.
19 See DeStefano, 557 U.S. at 594 (Scalia, J., concurring).
20 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 357 (2011).
21 E.g., Ann C. McGinley, Ricci v. Destefano: Diluting Disparate Impact and Redefining Disparate Treatment, 12 Nev. L.J. 626, 629 (2012); Natalie Bucciarelli Pedersen, The Hazards of Dukes: The Substantive Consequences of a Procedural Decision, 44 U. Tol. L. Rev. 123, 132–34 (2012); Charles A. Sullivan, Ricci v. Destefano: End of the Line or Just Another Turn on the Disparate Impact Road?, 104 Nw. U. L. Rev. 411, 415 (2010); Michael J. Zimmer, Wal-Mart v. Dukes: Taking the Protection Out of Protected Classes, 16 Lewis & Clark L. Rev. 409, 450 (2012).
22 U.S. Equal Emp’t Opportunity Comm’n, Policy Guidance on Current Issues of Sexual Harassment, EEOC Notice No. 915-050 (Mar. 19, 1990), https://www.eeoc.gov/laws/guidance/policy-guidance-current-issues-sexual-harassment [https://perma.cc/ZY5H-AGYC] (“Title VII does not serve as a vehicle for vindicating the petty slights suffered by the hypersensitive.”) (quoting Zabkowicz v. West Bend Co., 589 F. Supp. 780, 784 (E.D. Wis. 1984)); see also Stein & Waterstone, supra note 17, at 910-21. For example, consider the exclusionary nature of a training video without closed captioning for a lawyer with hearing loss or colleagues asking a lesbian lawyer wearing a wedding ring what her husband does for work.
23 Blanck et al., supra note 5, at 54.
24 See id.
25 Am. Assoc. of People with Disabilities (AAPD) & Disability:IN, Disability Equality Index (2020), https://disabilityin-bulk.s3.amazonaws.com/2020/2020+DEI+Report.pdf [https://perma.cc/R22Z-ANSD].
26 Human Rights Campaign Found., Corporate Equality Index (2020), https://hrc-prod-requests.s3-us-west-2.amazonaws.com/files/assets/resources/CEI-2020.pdf?mtime=20200713132437&focal=none [https://perma.cc/X4LH-D54F].
27 Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 650–55 (1989).