By Alison Preece | May 13, 2021 | Lawyer Limelights
Thirty-one years ago, The Americans with Disabilities Act (“ADA”) was passed, which federally mandated equal access for people with disabilities to all aspects of public life.
The year was 1990, which was “shockingly late” for basic civil rights to be extended to that population, says Eve Hill, who graduated law school just before the Act was passed. She was immediately drawn to the nascent practice, taking one of the first available trainings on disability rights law as a young associate.
Her career since has been one of symbiotic growth with the application of the ADA, as she’s weaved between the Department of Justice and private practice, setting case law and providing guidance for institutions “to go beyond compliance” and build truly inclusive structures for people with disabilities.
Tapped early on to spearhead the DOJ’s ADA Mediation Program, Hill returned to Main Justice in recent years as part of the leadership of the Civil Rights Division. She’s now in private practice at Brown Goldstein & Levy, with judicial aspirations down the line.
Hill made her mark early in her private practice with a case against Los Angeles County when they had to cut hospital costs due to budget cuts, and chose to close the only hospital that specialized in helping people with disabilities. It was an untested argument at the time, and her successful advocacy in district court and the Ninth Circuit laid an essential precedent about what constitutes discrimination in this area.
Her early work boiled down to “taking the meaning of the ADA and making it real” for companies, nonprofits, state and local governments, and individuals with disabilities, Hill says. Over time, her focus has become helping these groups actively increase their inclusion of people with disabilities.
“Disability has traditionally been thought of as a compliance issue. Comply with the law, reasonably accommodate, done,” says Hill. “But it's really a diversity and inclusion issue. How do we make being a person with a disability in a job or a college a complete experience and not a lonely one? Because it’s not just about getting invited to the party. It's about getting to dance.”
Lawdragon: You seem to have been at the forefront of disability rights throughout your career, really helping define and shape the scope of the ADA and how it gets applied. From your perspective, how’s our country doing in this area?
Eve Hill: We’ve come a long way, to be sure, but the work is far from over. There are a couple of different ways to look at the ADA. One of them is to do the bread and butter discrimination: physical access, denials of interpreters, denials of braille, those kinds of things, for individuals. Another is to explore the systemic aspects of the law. That includes things like, why are so many people with disabilities in institutions, when the law says they can't be unnecessarily segregated? Why are so many people with disabilities being arrested or killed or injured by police? Why are so many kids with disabilities being segregated or disciplined out of school? What's going wrong with the system that leads to these outcomes over and over, and how does the ADA fit in there?
That was our focus while I was at the DOJ – the big systemic work. We got tens of thousands of people out of institutions and worked with states to set up their healthcare and housing systems so that people with disabilities could get services in their communities. We did a lot of work with police departments on how to interact with people with disabilities. We did a lot of work on accessibility of websites, because everything is online these days, but if the website isn’t accessible, then blind people and others with print disabilities can’t use it. They’re boxed out.
LD: You left the DOJ at the end of the Obama administration. Did the change of guard at the White House impact the work you were doing there?
EH: The Trump administration did more of the bread and butter work, which is certainly legitimate work. My perspective is that we should each do what is within our capability. An individual lawyer can do a physical access case, or an interpreter case – and there are great lawyers and organizations doing that important work to make the ADA work on the ground for individuals with disabilities. A protection and advocacy organization or a disability rights nonprofit can do a more systemic case across a big entity. But there are some things that few but the Justice Department can effectively do at the scale that they need to be done, like taking on an entire state public health system or an entire criminal justice system.
My perspective is that DOJ needs to be doing the things that are systemic and big and complex. And once they're done, once DOJ sets the standard, the rest of us can pick it up from there. The career staff at the DOJ is excellent, and the Biden administration is picking very progressive leadership, so I expect to see a shift back to that big systemic work.
In the last administration, many of us, regular disability rights lawyers, were having to pick up where DOJ left off and punch above our weight. My team had to do almost a dozen big matters involving inaccessible absentee voting in the last year, which normally the DOJ is very engaged in. I was involved in 10 or 12 of them.
LD: Absentee voting was such a red-hot issue, too, with the pandemic.
EH: Exactly. It was essential. Literally life or death. The pandemic caused a lot of discrimination and exacerbated a lot of existing discrimination, especially in the technology space, where we have no choice now but to rely on the technology.
LD: Can you walk us through the key issues with accessible voting?
EH: States have been required to make their absentee voting accessible for some time. It’s illegal not to. My client, The National Federation of The Blind, wrote to every Secretary of State in the country back in the fall of 2019, and said, "Hello, your absentee voting is supposed to be accessible. Please make sure it is. Let us know how we can help." Well, they got crickets in response.
Then the pandemic hit, and it became no longer optional to vote absentee, especially if you had another health condition or were going to have to use public transportation, as blind people do, to get to the polls. It was disappointing, but we had to litigate it and saw over and over again how important it was. I had people call me after cases in their states and tell me, “This is the first time I've ever voted absentee independently.” Over and over again, people said, "This was such a meaningful experience, because I got to do it myself, and I didn't have to tell anyone my vote.” It made me cry more than once.
LD: I’m tearing up just listening. It's terrible that it took a pandemic to get there, but it’s great that you were ready to pounce once it became urgent. What other sorts of matters have you been working on since joining BGL?
EH: I’ve been doing some consulting work for Monroe County, Ind. They wanted a real deep look at why so many people with mental illness and substance use disorders are ending up in their jail and what they could do about it. I'm working on that analysis, where the disconnects are, what’s missing, what’s siloed. It's really interesting and so fulfilling to have a jurisdiction say, "Hey, we believe this can be better. We don’t want to wait until we get sued. What can we do to make it better?"
LD: That’s so encouraging that they came to you proactively. And with all your experience at the DOJ, they can really trust your insights.
EH: One of other the things I did at DOJ the last time was applying the Olmstead Integration Mandate to employment and education. We challenged Rhode Island and Oregon and other states to reform their systems so that people with disabilities could get real jobs. A lot of states rely on sheltered workshops to employ people with disabilities. It’s like a factory or a warehouse, and they work there all day on whatever contracts the entity has. They mostly get paid below the minimum wage at those places. But people with disabilities can do all kinds of jobs, integrated, right alongside people without disabilities, for real pay. We helped state and local governments, and the nonprofits that serve them, figure out, how do you help people with disabilities get competitive, integrated jobs instead of segregated, sub-minimum wage jobs? So yes, now I’m in a good position to help in this area.
We’ve also been working with higher education institutions, which is an interesting area for me because colleges and universities have sort of mostly figured out how to provide extra time on tests, how to make their dorms, classes and facilities accessible, and how to handle service animals. But there's a new set of disabilities among students coming to campuses and higher education hasn't understood so well how to deal with those. They've had trouble with emotional support animals. They've had trouble with accessible educational technology. Too many students with mental illnesses get disciplined out of higher education. Usually not even under real discipline, but a kind of, "we don't want you to hurt yourself” discipline.
They think they're being helpful, but they're also excluding someone from their education. I just put out a guide through the Institute for Educational Leadership, on these emerging types of disability issues and how higher education is can meet them.
We also consult on criminal justice reform, accessible technology and diversity and inclusion.
Accessible technology seems like a hurdle for some companies because they think they need to outsource it, and the cost is a burden. I help them build accessibility into their web development, and their procurement, development and audit practices. We find ways to build it into their own systems so they’re not relying on a third party and it becomes integrated into their business.
LD: Is your work mostly consultancy these days? Or is it a mix with litigation?
EH: It’s a mix. We’re suing the Social Security Administration because they won't accept electronic signatures. They require people who are blind or have other print disabilities to read and sign a physical piece of paper. E-signatures have been required by federal law for over a decade, but Social Security didn't want to do it. So during the pandemic, when it became really important not to have to go out to your lawyer's office and physically sign a document, and when Social Security offices were shut down, and when e-signatures were so widely available, accessible, and secure, it just made no sense that SSA required wet-ink signatures. What’s worse, it was literally putting my clients' lives in danger. So we sued. That case is ongoing.
We are also suing the Maryland Board of Elections over accessible voting at the polling places.
LD: And you mentioned criminal justice reform, any current cases there?
EH: We’ve got a lawsuit involving a man with schizophrenia who was accused of murder and the Washington, D.C. police interrogated him while he was in a mental health crisis. Based on that interview, where the police officers were asking trick questions and it was clear that he was not able to respond, they arrested him and kept him in a psychiatric hospital for over five years. He wasn’t a danger to anyone and he was innocent of the charges. He was eventually acquitted. But he lost over five years of his life because the police didn’t take his mental illness into account when interviewing him. The ADA requires accommodations, especially in a situation as important as a criminal interrogation.
But criminal justice reform isn’t just about how police treat the public. There are many levels of the system that need reform. In Washington, DC, when a police officer is injured, whether on the job or off the job, Police Department policy is that you can be on light duty or on leave for up to 172 days in any two-year period. If you go beyond 172 days, you're retired on disability, immediately, mandatorily. Many people, and my clients in particular, were going to be ready to go back to full duty within a limited time, or were fully qualified to do some other job other than police officer. But D.C. doesn't allow that. If the 172 days are up, you're out. It doesn't matter if you're going to be back to full duty in six weeks, or if you could easily do another job that they have open. None of that. They mandatorily retire you. So we're challenging that, which is clearly against the law.
LD: Do you have any current cases in the education sphere?
EH: We’re challenging Fairfax County Public Schools. The pandemic actually improved things for our clients in this particular case. Fairfax County restrains and secludes children with disabilities, particularly kids with autism and kids with communication disabilities. So these students can't say, "I am hurting. I feel bad. This is wrong. This is a problem for me." They can't express it in words. So they often express it in behavior. And Fairfax County schools routinely either restrain or segregate them. They are required by law to respond in other ways to a child’s communication-related behavior.
LD: When you say they restrain them…?
EH: As in, headlocks, or pinned on the ground. Or they put them in segregation rooms, which are these little booths that they put the kid in. One of my clients, a child with autism, was restrained over 700 times and was forced to clean up his own urine when he soiled himself in the seclusion room.
LD: Wow, that’s awful. So when the pandemic hit, these kids were probably so relieved to not have to go into school.
EH: Exactly. When you're virtual-learning, you don't have to go deal with those teachers anymore, you don't get restrained and secluded. And guess what, your behavior gets better because you're not so scared of going to school and being, frankly, abused.
LD: You have such a breadth of experience in this area. Many of our readers are leaders at their law firms or legal groups. What advice could you give them on fostering disability inclusiveness at their firms?
EH: Reach out to law schools and colleges, disability groups and disability student services offices. Say, "We want people with disabilities. We want to reflect the full diversity of our community. We welcome you." That goes a long way, “We welcome you."
Count us. You're not allowed to ask about disability randomly, but as part of an affirmative action program you're allowed to ask voluntarily, how many people with disabilities do we have? Then you can track your progress and see how you’re doing on recruiting, on outreach, on inclusion.
Then, incorporating employees with disabilities takes some advanced work. Is your website accessible? What technologies do you use? Are they accessible? Have you ever asked? Is your physical space accessible? Call your independent living center, many of them can do a review for you.
What are your events like? I heard from a law student intern saying, “Yeah, I was at this firm for the summer and it was fine, except I found out later they had a summer associate event and they didn't invite me to it because it wasn't accessible." That's so not okay. Or, “There was a training session and I couldn't understand any of it because they didn't want to provide an interpreter because it was free and they didn't want to spend any money.” Well, it’s part of the cost of doing business.
And what people don’t always realize, too, is that any costs here will pay back dividends. I’ve worked with incredibly talented people with disabilities, including law students and lawyers, very effective people, and they’re representing a portion of our population that doesn’t always get represented. It pays back dividends to accommodate us into your firm.