Making a Positive Impact Together
November 15, 2022 - MoFo Diversity

Making Disability a Part of the Equity Equation in the Legal Industry

disability employment awareness month

Morrison Foerster has always valued the differences among people within our firm while recognizing our similarities. This year, MoFo was proud to celebrate National Disability Employment Awareness Month (NDEAM) to bring awareness to and celebrate the unique experiences and many contributions of employees with disabilities

As part of MoFo’s observance of NDEAM, David Cross—chair of the firm’s Antitrust Litigation practice, Disability Affinity Network liaison, and an active member of the Diversity Strategy Committee—shared his personal experience navigating the legal industry as an attorney with a disability.

What does Disability Employment Awareness Month mean to you?

When I started my career 20 years ago, I had two friends who were both gay men. One was not open about it; one was. And I remember we would discuss with the one who was not open about why he wasn’t. He was open with his family, so it wasn’t that; his concern was that the industry hadn’t fully embraced tolerance and that being open about his sexuality could affect his career opportunities.

Twenty years later, I think we’ve made a lot of progress on that front. However, I think people with disabilities are still concerned that there continues to be a stigma and are worried about self-identifying. If you were to ask the people who interviewed me when I came here seven years ago, I imagine some of them would say they had no idea that I had any disability until deep in the process, because I know that, in that context, consciously and unconsciously, I’m going to hide it. My concern is that people sitting in the room, no matter how decent they might be, will have unconscious biases. And we’ve learned that we justify unconscious biases in conscious ways. We’ve learned that people who may not want to hire someone because they’re a woman, or because they’re a person of color, will find a qualitative distinction to say, “Well, this person wasn’t qualified.” That's always my fear, that someone’s going to be put off or distracted by my disability.

Even now, there are people that I cannot have a conversation with without them pretty frequently staring at my arm. That’s a very marginalizing feeling, that people you respect, people you consider very sophisticated, people you would consider very open-minded and fair and equitable, are still human, and at some level, to them you’re almost a circus freak. The reason I think it’s important to talk about this is because there are a lot of folks who probably feel the same and aren’t comfortable identifying as disabled.

In 20 years of practice, 20 years of interacting with thousands of lawyers, I can’t think of another lawyer with a physical disability whom I’ve ever come across. That is an extraordinary statistical improbability, when you consider the number of disabled people in the country. I think there are two things that drive that. One is unconscious bias, which makes it harder for folks with disabilities to get hired and get into leadership positions, particularly at our level of practice. And the second is that there are probably a lot of us out there, like me two years ago, who didn’t talk about it. Who just wanted to pretend it didn’t exist and wanted to keep our hands in our pockets. I finally decided a couple years ago that’s not healthy for me or for others. I spent a lot of time thinking about it and paying psychologists to help analyze and think about that.

I would like to give people more comfort that, no matter how you are different or diverse, whether it’s color, sexuality, gender, disability, or anything else, everybody struggles in a different way. But everybody should feel open about that and not feel like they must mask their struggle.

What are some of the biggest challenges that Disabled individuals face in society today? What changes have you seen starting to take shape to ease or eliminate these challenges?

I can remember a partner telling me he was not going to include me in a pitch; it was an in-person pitch. He said he was going to talk about my experience and sell me to the client, that I was perfect for the assignment, but he was concerned the client may have an adverse reaction to someone with a disability. The client might think, “Oh, how’s a judge or jury going to react to this?” So, the partner said, let’s get hired, they’ll get to know your work, and by the time they’re aware of your disability, it won’t be a concern. The irony of it is, in the moment, I remember thinking, “Oh, there’s total logic to that.” But there’s something insidious about it, too. No one would ever say, “We’re not going to include a person’s color on a pitch because we think our prospective client might be racist.” We would just not work with that client.

One of the challenges that people with disabilities have combating discriminationwhether conscious or unconsciousis that people justify ableism more, because the reality of being disabled is there are certain things you cannot do. I’m never going to juggle. It’s not going to happen. And so, I think people will justify it. When we think about things like skin color, gender, or sexuality, that does not have any impact on your performance. It is just pure unmitigated bigotry to judge someone or assess their value based on that.

I think people look at those with disabilities and say, “If you’re in a wheelchair, or you have some other physical or mental disability, it actually affects your performance.” So, people will justify ableism to say things like that partner said, which is, “What if a jury is put off or distracted by you giving an opening statement with a disability?” And my response is: “Well, there was a time when people would say the same about people of color and women.” I think we’ve made a lot of progress in other categories, but there’s still more progress to be made on the disability side.

How have you seen the legal industry shift in recent years with respect to Disability inclusion?

It dawned on me that I was approaching 20 years of practice, and in all that time, I had never seen anyone else with a disability. But at the same time, I had seen the profession make great strides in other diverse areas. It’s started to feel like those of us with disabilities are falling behind in the diversity and inclusion efforts. And again, I don’t think that’s for insidious reasons; there are certain unconscious things that are in play there.

The president of the United States at the time commented on the Special Olympics; I wrote a piece on this. And he had people in who had won medals. He went from praising them to saying, “I tried to watch it, but I couldn’t watch it too much.” That is like code in the community of the disability, which is “I couldn’t watch these people; it’s like a trainwreck watching these people do what they do.” There’s all the spin that came on it, but it’s clear to me and many others what he meant. You can’t watch this in the same way that you can watch normal people excel at the Olympics. If that sort of mindset is at the highest levels of leadership, then something is wrong, and there needs to be a voice about that.

How has being Disabled made you a better lawyer?

I think in the way I serve clients, with creativity, problem-solving, and relentlessness. I get a lot of feedback from clients that they like those positive traits. Because I have such an acute sense of what it feels like to be marginalized or left out, I find myself very empathetic to that. At my prior firm, whenever associates were struggling, I’d always be the one who got the call: “Can you come in and help this person?” One of the associates who came over with me from my prior firm used to joke that I would put myself on the island of misfit toys; I took this as a compliment, which was how she meant it. Everybody struggles in some way. I think everyone probably feels a little left out sometimes. For mebeing empatheticI find myself gravitating to people who are struggling and trying to help.

What advice would you give to encourage more individuals with disabilities to pursue a career in law?

There is not a great third-party organization in the legal community for people with disabilities. There have been a couple attempts at it, but not in the way that we have bar associations for other diverse groups. That’s part of the challenge: there’s not a great networking organization and that’s one of things I would like to see develop. But I do think that the diversity organizations are important, and folks should get involved, as I have.

The other thing I’ll say is that it’s important to find advocates who can at least relate to your experience, people who suffer similar discrimination, whether on race, gender, or sexuality. One of my closest friends from law school is Black, and I remember him coming back from his first-year class saying he was the only Black person in his entire summer class 20 years ago. We talked about how marginalizing that was. I can never fully appreciate what it’s like to be a victim of racism, even implicitly, just like he can’t fully appreciate my experience. But we can relate. That’s where I think we can find advocates and sponsors.