Category Archives: Legal Topics

Is the ADA “Worth It”? Hell, Yes.

I stumbled upon a blog post in the New York Times that claims that the ADA, by making it costlier to see patients with disabilities (specifically, deaf patients who need interpreters), will result in fewer and fewer doctors accepting patients with disabilities. The author specifically noted that Medicare only reimburses 15-25% of the interpreter fees. Basically, since the doctor is not ‘profiting’ off the deaf patient, the author assumes that the doctor will (and is able to) refuse to treat the patient. Upon these tenuous assumptions, the author asserts that the ADA has the unintended consequence of encouraging discrimination. The author is implicitly telling us that the ADA is not worth its cost.

Another thing that I found the comments quite fascinating. I practically had to shield my eyes from the vim and vitriol that the commenters spewed. Some asserted that the deaf patient should have been placated by communication via writing. If “these” deaf folks are not satisfied with writing, these commenters said that the patient should pay for his or her own interpreter. Others merely derided the ADA as expensive and useless. The underlying assertion of many conmenters is that providing interpreters for a deaf patient is unreasonable if the doctor does not profit per every visit. Of course, there was some useless prattle about what a burden people with disabilities are on society and blah, blah. On the other hand, there are some quite good comments who repeat some points that I am going to make.

First, the author assumes that the doctor may and will reject a deaf patient because of the costliness of the patient. Let me remind the author about two things: the Hippocratic oath and the ADA. Medical ethics recognize that doctors fulfill a public service. There’s a reason why the medical profession is so heavily regulated in comparison with, say, retail. Doctors provide an essential service for society – health care. One line of the modern Hippocratic oath applies: “[w]hatever houses I may visit, I will come for the benefit of the sick, remaining free of all intentional injustice…” Of course, the oath is not legally binding, but the oath outlines appropriate professional conduct. Denying access to a patient because of his or her status (deaf or otherwise disabled) should never be condoned or encouraged.

The author also assumes that the ADA allows a doctor to refuse service to deaf patient. Hello, Title III? Has the author even read the ADA? I think not. Title III prohibits all public accommodations (that’s you doctors) from denying access to people with disabilities (that’s you, deaf patients) unless it is an undue burden (not so much here). If a doctor tries to refuse service to d/Deaf patient because of his or her disability, that doctor is begging to be sued. Doctors may come up with contrived excuses. Such a practice, however, will inevitably lead to a near-total absence of medical service for d/Deaf patients. If all doctors (assuming, of course, they are big bad doctors who ignore their ethical duties) somehow got around the ADA and refused service to all deaf patients. No medical service! Why should d/Deaf folks bother with insurance then? Why should society bother funding Medicaid for d/Deaf folks then? Regardless of your stance towards health reform, most of us can agree that if we pay insurance (either ourselves or via taxes), we should get some degree of health care. In the infamous words of Homer Simpson, D’oh!

There’s also the argument that it is unreasonable for the doctor to shoulder the cost of interpreters. Such an argument assumes that the doctor should be able to profit from every single patient on every single visit. Um, no. Most doctors have more than one patient, and unless he or she has a disproportionate number of deaf patients, his or her practice should make an overall profit based on the rest of the patients. So, what’s the problem? The doctor can’t make an extra few hundred dollars? Cry me a river. If the doctor has a high number of d/Deaf patients (as in certain Rochester or Washington DC metro areas) then it would behoove him or her to staff a qualified interpreter. Doctors see people with medical problems, and guess what? People with disabilities can have medical problems too!

Many commenters argue that deaf patients should ‘mitigate’ the costs by communicating via notes or hiring their own interpreters. Putting the ADA aside, forcing d/Deaf patients to bear the costs (effort and/or monetary) is a terrible policy. First, it is not effective to communicate solely via written notes. Notes cannot capture the repartee, complexity and rapidity that spoken/signed language can . Second, we live in a society where discrimination based on disability is rampant – in employment, public accommodations and social context. Should society force an underemployed d/Deaf person to bear the financial costs of social discrimination? I would hope that we have evolved past that mindset.

The comments to this article rubbed me the wrong way. It seems to me that the current recession, the worst since the Great Depression, has brought out an ugly side of humanity. People’s total lack of compassion. I have been seeing more and more criticism of socially progressive policies such as affirmative action and inclusion of people with disabilities into mainstream society. A lot of the criticism is based on the me-me-me policy. If society (or doctor or school, or whatever) spends a bit of money accommodating a person with disability, then it takes away money from able-bodied persons. How these people stomp and yell about this injustice. These who label people with disabilities money-siphoners assume that non-disabled people somehow have a ‘moral right’ to society’s resources, and people with disabilities don’t. The dearth of compassion unnerves me – true inclusion seems impossible with that kind of mindset. Spare me the Darwinist argument. We, as a civilization, are supposed to evolve past the rough-and-tumble life of the jungle. The unfortunate thing is that people with disabilities are a lot more accommodating of people without disabilities than the other way around.

To sum it up, the ADA should not be used as an excuse to discriminate. The ADA does establish an effective barrier against discrimination, in terms of medical service. The real problem is that people refuse to accept accommodations as a social duty that we all bear.


Question? It’s An Answer.

Questions, questions and few answers. Welcome to the life of a lawyer.

This semester, I am participating in a clinic where we serve indigent clients. (The idea of representing a real and live person is absolutely frightening though). My clinical experience has shown itself to be an incredible and unparalleled learning experience. One of the key lessons that I learned (and am still learning) is the importance of questioning

You may think that the act of questioning is solely confined to depositions or client interviews, situations where you are actively trying to get information from someone else. Not true. A competent laywer must question everything she does, sees or learns about. You must constantly question your next move – is this truly necessary? Does this action serve the clients’ objectives?  if you don’t, you may veer off-course and end up wasting your and your client’s time. Also, you must question everything you disclose – is this confidential? Did my client approve? Most of all, you must question your assumptions – you know the saying, when you assume, you make an ASS out of U and ME. Just imagine, doing that in a professional and legal setting, where the stakes are high – ouch. 

Most law students (including me) are loath to question – we think it makes us look incompetent and dumb. In fact, it’s a sign of truly competent and intelligent lawyering. You need to know all of the facts and underlying assumptions to get the right answer. 

Now, you may be asking yourself, how is this relevant to me as a d/Deaf/HOH person and a non-lawyer? Well, it is. 

One thing I find to be very disturbing about some of us d/Deaf/HOH folks is the reluctance to question hearing people.  Of course, this is fairly common among any population, but I fear that d/Deaf/HOH people suffer the most from the consequences. If you don’t question the doctor about his or her diagnosis because “its just too difficult to communicate” – it’s your life. If it is a legal proceeding, if you do not question why you are not getting the necessary accommodations – the consequences could be grave. 

There’s something uniquely repressive about being d/Deaf/HOH – people have a tendency to give us limited information. You know that famous phrase, “oh never-mind,” after you ask a question –  that I’m sure more than a few of you have heard. The “never-mind” phrase is one of the most toxic phrases anyone can tell a d/Deaf/HOH person. It discourages that person from questioning, from getting answers and encourages complacency. By making us feel that we are being “difficult” for asking questions, these never-minders makes the act of questioning a negative thing, which is the furthest thing from the truth. Also, it puts the hearing person into the coveted position of an information-holder, establishing an aura of superiority. One of the saddest phrases I’ve ever heard a d/Deaf person say was, “you’re hearing, you know everything!” (Obviously, not to me, ha!). Just because some hearing people withhold information (usually out of convenience, frustration and neglect), doesn’t make them any better (or more well informed) than any of us. 

If d/Deaf/HOH people questioned more, pushed more, maybe, just maybe, people would rethink their assumptions and discriminatory attitudes towards d/Deaf/HOH folks. If you ask why you are not getting the necessary accommodations, you may discover that some people have misguided assumptions. Once we get these assumptions out in the open, then we can counter them. For example, many people’s insnict is to equate the inability or difficulty in verbal communication with inability to think or reason. That assumption is, at best, misguided and , at worst, discriminatory. Once people realize they are assuming this and this assumption is wrong…maybe it will be easier for a d/Deaf/HOH person to succeed at whatever she wants to do. 

So being a compentent lawyer is not so different from being a successful d/Deaf/HOH person. 

Questions? 🙂

Pregnancy and Disability – Are They Anything Alike?

Technically, no. The Americans with Disabilities Act (ADA) does not include pregnancy as a disability because of its temporary nature. However, the seminal preganancy discrimination statute, Preganancy Discrimination Act (PDA), which amended Title VII in 1978, does require similar treatment of  disabled and pregnant workers. For accommodation pruposes, pregnancy and disability are treated similarly. Check out the statue:

 … the term “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth or related medical conditions, and women affected by pregnancy, childbirth or related medical conditions shall be treated the same for all employment-related purposes… as other persons not so affected but similar in their ability or inability to work. §701(k)

The bolded section basically means that the employer MUST treat pregnant and disabled workers similarly regarding accommodations and any other employment benefits. The statute also makes the employer focus on the ability or inability to work for both pregnant and disabled employees, not their individual characteristics. Now, some people interpret this as equating pregnant women and disabled workers, and they find that offensive because pregnancy should be treated as a miracle of life-giving, not a disability. Although I do understand their perspective of pregnancy as an unique event and a singularly feminine occurrence, but I must differ.

Completely dissociating pregnancy from disability is a bad idea for two reasons: (1) risk of a revival of the “gilded cage”; and (2) it ultimately stigmatizes people with disabilities.

Throughout history, women have been discriminated aganist again and again because of their supposedly delicate and motherly nature (i.e. put into a gilded cage – had a life of relative luxury but no freedom). Males would fixate on women’s role as a child-bearer to justify the separate-sphere paradigm  that has made it so difficult for women to succeed. By shifting the focus from women’s ability or inability to work, the statute would be allowing the employer to consider women’s characteristic as child-bearers and mothers. Of course, that into itself is not a lie – women do bear children and are mothers. However, permitting employers to think about women’s femininity rather than ability to work will lead to a slide back into the “gilded cage” way of thinking – oh mothers are so pure, they should never be exposed to the world’s horrible and terrible things. Their place is in the home. Allowing women to be separated from disabled workers, for accommodation purposes, would be akin to allowing the old-fashioned meme of women-as-domestic-child-bearers-only to flourish. The reason why employment discrimination law exists is to prevent discriminatory stereotypes from entering employer’s decision-making, and focusing on ability or inability to do the job is a way to further that goal. 

Also, differentiating pregnant women from disabled workers ultimately stigmatizes the disabled workers by putting them in a separate and lesser category. Much of the advances in reducing discrimination based on disability (that includes you Deafies!), has come from focusing on the ability to do the job. The basic premise of Title I of the ADA, which deals with employment, is that if, with reasonable accommodations, an employee can do the job, s/he cannot be discriminated against because of disability. (The definition of reasonable accommodation is a whole ‘nother conversation). By putting pregnant women in a different category, we would undermine all of the ADA’s accomplishments in the last 19 years by saying, oh it’s not about ability to do the job, it is about the characteristic of the person doing the job.  In order for discrimination based on disability to disappear, we must shift our thinking to focus on the ABILITY to do the job, NOT the disability itself. Exempting pregnant women from this paradigm makes disabled people different, seperate, and ultimately, inferior. I would hope that we have learned our lesson from Plessy

N.B. For my more-regular readers, this post may seem to be very uncharacteristic – I am trying to discuss more legal issues pertaining to people with disabilities, as I think it’s a neat field of law. Hopefully you find these legal topics as interesting as I do.

The Future Deaf Lawyers

I’ve discussed the roots of the expanding pool of the d/Deaf lawyer (for better or worse). Now, the next logical step is to look at what the future Deaf lawyers will look like. This is just my educated guess from my experiences with Deaf Culture, current trends in law schools and law itself.

Fortunately, law is slowly opening its doors to people with disabilities. It’s just a crack, but it’s a start. There are quite a few d/Deaf lawyers at BigLaw Firms (for you non-lawyers out there, BigLaw firms are big corporate firms with more than 150 or 200 attorneys). Also, there are numerous of d/Deaf lawyers in public interest, government and smaller law firms as well. These trends bode well for any d/Deaf person entering law school.

It’s given that there will be an steady increase of d/Deaf law students, hopefully an exponential rise . My hope is that the number of d/Deaf lawyers will reach critical mass and produce an organized professional association of our own. At my school, the Black Law Student Association (BLSA) and the Latino American Law Student Association (LALSA) are incredible networking tools. The members help each other get prestigious firms, clerkships, government or public interest jobs. These minority groups represent a real voice pushing for inclusion in the mostly-white-and-affluent law firm world. I must admit, I am a bit envious of their networking power and ability to convince prestigious employers to consider other factors other than grades and the school’s name. 

Now, the question is, where is our voice? There have been efforts to establish official professional groups for Deaf and hard of hearing lawyers (I’m not sure what its name was, so I apologize in advance). However, the effort fell apart because of the internal split in the deaf community along ASL/oral/CI lines. Unfortunately, the internal turmoil in the deaf community has (perhaps irreparably) fragmented the d/Deaf lawyers. We cannot advocate for an industry-wide change in how employers view lawyers with disabilities without a strong group advocating for ourselves. An unified voice is much stronger than scattered individual voices.

Of course, there is the National Association of Law Students with Disabilities (http://nalswd.org/) which is a wonderful organization. However, I do think that d/Deaf lawyers face unusual resistance from employers. In such a communication-heavy profession, many employers feel leery about hiring a d/Deaf lawyer. We need a group that actually does understand d/Deaf people’s unique needs to be able to advocate for the idea that deafness can be seen as a strength, perhaps even a “diversity” factor, and not necessarily a crippling liability.

Also, I am curious about how Cochlear Implants (CIs) will affect the face of the typical d/Deaf lawyer. Honestly, I don’t see a problem with the impeding rise of lawyers with CIs. I can only hope that things will be easier for them than it has been for other d/Deaf lawyers thus far. However, the only concern I have with lawyers and CIs is diversity. From my own experiences (and trust me, I’ve met many people with CIs,) the most successful Deaf people with implants tend to come from affluent families.

The correlation between implant success and affluence shouldn’t be surprising. Affluent families are more likely to have insurance coverage that will provide funds for CI surgery and processors. Also, affluent families tend to have more time and resources to devote to their children, ensuring that they master the AVT approach. Of course, one can say, “same old, same old.” Perhaps that person is right – historically, law has been a white-shoe, predominantly white and affluent profession. However, that is changing today, and I’m glad about that. Moreover, people should try to change this aspect of law – after all, lawyers have an incredible power to change people’s lives. We need diverse viewpoints to implement this power in an equitable and understanding way.

Unfortunately, affluent families tend to be white Anglo-Saxons. I’m afraid that d/Deaf lawyer population will remain predominantly white. As a minority myself, I’m not entirely comfortable with that idea. I have to struggle whether to conform to the white and “hearing” culture or stay true to my heritage, as an double minority. Moreover, I don’t want my allegiances to conflict with each other (and they have before). I would love to see some progress in this area. I hope the rise in the d/Deaf lawyer population will cure this problem, but I’m not so sure it will. Perhaps I am asking too much, but I can always dream, can’t I?

To DEAFLAW Or Not To DEAFLAW

There are some ‘schools of thought’ (and I use that term very loosely), that think that d/Deaf lawyers should go into DEAFLAW in order to become “real” Deaf lawyers. Just to clarify,  a general practitioner practices DEAFLAW by providing legal services to only/mostly d/Deaf and hard-of-hearing clients. Usually, DEAFLAW will consist of criminal proceedings, divorces, wills, and some ADA/Social Security thrown in for fun. There are some people that feel that d/Deaf lawyers who decide not to go into this particular field are “selling out” and doing a grave disservice to the community.

I beg to differ. I’m of the school of thought that “people should do whatever they are interested in, period.” I would think that the more d/Deaf lawyers that get into diverse practices, the more exposure our hearing peers get to d/Deaf lawyers. Increased exposure is a good thing. If more hearing lawyers see d/Deaf lawyers practicing and succeeding, they will see that it is possible for a d/Deaf lawyer to flourish in a professional environment that values oral and writing skills. Increased respect within the legal community is just as important as serving the d/Deaf community. Moreover, if a d/Deaf lawyer practices in a large corporate firm, that person is in a powerful position because prestige is a highly-vaunted currency in the legal community. Once our peers see d/Deaf lawyers in powerful positions, there won’t be as many attitudinal obstacles that hinders most d/Deaf lawyers and law students. Fortunately, with more and more d/Deaf lawyers entering the profession, the ability for d/Deaf lawyers to enter diverse legal (or even non-legal) professions is growing. That’s a good (perhaps even great) thing, not a bad thing. 
 
I do not mean  to suggest that the d/Deaf community does not have needs that could be better served by d/Deaf lawyers. Of course, it IS easier for two people who use the same language to communicate with each other. Just the fact that it is easier doesn’t mean that we should blindly encourage d/Deaf law students to enter DEAFLAW. We do have the ADA that requires a lawyer to hire an interpreter if he/she has a Deaf client. However, we do need to encourage real enforcement of this law – not just wrist-slaps. This has more to do with informing the d/Deaf community of their rights and demanding that the Department of Justice (DOJ) truly penalize non-compliant lawyers.  If the ADA truly lived up to its promise, perhaps we wouldn’t feel such a need to get d/Deaf lawyers to practice DEAFLAW. 
 
In all and all, I believe that you should practice whatever you want to practice. If that’s DEAFLAW, that’s great. If not, that’s great too. All reasonably successful d/Deaf lawyers will benefit the community, one way or another. 
Just a side note: I might be “selling out” by aspiring to a large law firm, but I do want to do some pro bono cases that serves the d/Deaf community. Therefore, I am not completely morally bankrupt. 🙂
 
Also, thank you (and you know who you are) to the people who talked to me about this subject.