Your firm’s key matters included creating a program to provide pro bono unemployment benefits counseling to workers displaced by Covid-19 and working with the National Association of the Deaf to provide American Sign Language interpreters for White House Covid briefings during the Trump administration. How did your firm strategize on how to approach these matters?
In March 2020, large portions of the US economy shut down. The restaurant industry, among others, was particularly hard-hit. We sought to quickly launch a program to assist impacted workers who had lost their source of income overnight. Key strategic considerations included quickly getting up to speed on new and evolving pandemic-related unemployment laws, building a multi-office team that could handle a large volume of requests for assistance, making contacts at the relevant regulatory agencies, and partnering with referral sources.
After learning in the summer of 2020 that the White House during the Trump administration was refusing to provide American Sign Language interpreters for its Covid-related press briefings, we quickly connected with the National Association of the Deaf to develop a potential litigation strategy. We knew seeking an injunction against the president would be difficult, so we were meticulous—before filing suit—in gaming out all possible claims and all possible defenses the White House could throw at us.
What were the most innovative aspects of these matters in your view? And who took the lead on driving innovation with the work?
The unprecedented job loss resulting from the pandemic posed new needs that exceeded the scope of existing programs. Perhaps most innovative was our effort to launch a multijurisdictional unemployment program from scratch. We reached out and obtained the guidance of established subject matter experts, while at the same time using both non-traditional and traditional referral sources. For example, the James Beard Foundation spread the word among its restaurant network. In addition, Legal Aid of D.C. and other legal services providers made regular referrals. Informal referral networks quickly evolved, with clients referring their co-workers.
The program was designed to be agile and evolve in response to the changing needs of unemployed workers. While originally focused on restaurant workers, the program quickly expanded to assist workers in a wide range of industries as the impacts of the pandemic expanded. Likewise, we increased our service offerings to include not only assistance in obtaining benefits but also defending against agency actions seeking repayment for alleged overpayments (which often resulted from agency mistakes). Dan took the lead in establishing the program and has litigated many cases, and Rebecca was central in running the program and assisting many clients.
In our National Association of the Deaf lawsuit, when virtual hearings were scheduled, we were intentional in asking the court to allow ASL interpreters into the hearings to allow our deaf clients to access the hearings, and we coordinated with court personnel to accomplish it. This helped demonstrate to the court the ease with which ASL interpreters can be integrated into important settings. Ian then took the lead in several virtual hearings, seeking to frame the dispute with the White House in the broader civil rights context. When the government argued that using ASL interpreters at press briefings would break White House norms, he responded: “Every advance of civil rights is preceded by ‘this has never been done before,’” to which the judge said: “Right, exactly.”
Tell us more about the impact of the matters on the local, national, and/or global level.
Our pro bono unemployment benefits program has assisted over 800 individuals across the country. While its initial focus was on unemployed restaurant workers, due to demand we quickly expanded to workers in all industries. We received countless messages from individuals stating that they were only able to pay their rent or feed their children because of our help.
The National Association of the Deaf lawsuit led to historic change at the White House. A few weeks after the court issued its ruling, a presidential press briefing was interpreted live in ASL for the first time. When the Biden administration took over a few months later, the White House began providing ASL interpreters for all press briefings, not just about Covid-19. The White House then hired a full-time team of interpreters, including a hearing and deaf interpreter. For tens of thousands of deaf Americans, these changes have unlocked a new level of accessibility to their government.
Why do you think your team ultimately achieved successful results?
The team was willing to respond to a massive need for pro bono services by creating a new program from the ground up. More than 100 attorneys from a wide-range of practice groups stepped up to work with individuals throughout the country who had lost their jobs. These lawyers applied their expertise in working within complex regulatory regimes and using negotiation and, where necessary, litigation to solve clients’ problems.
In the National Association of the Deaf case, creative and aggressive lawyering in favor of a righteous cause led to success. In the legal briefing, we proactively addressed cases that appeared to undermine our claims. In the argument, we invited questions from the judge and sought to reassure him that adding ASL interpreters was feasible and non-disruptive. We were also helped by the fact that many states’ governors were already providing ASL interpreters for their Covid briefings, further demonstrating that it was doable.
Take us back to the time the matters were resolved. What did you do to celebrate?
There is nothing like that call from your client when they tell you through tears that they had given up all hope and they cannot thank you enough for resolving their benefits claim. Knowing that our assistance would allow a family to pay their bills is deeply rewarding. Several clients actually asked for a bill for our services or offered to share their recoveries. It was a great joy to remind them that we were doing the work pro bono and would not be seeking any payment.
Ian Hoffman celebrated by taking screenshots of the first press briefing with an ASL interpreter in the frame. He also shared the news with his father-in-law and mother-in-law, both of whom are deaf and had been following the case. The National Association of the Deaf and our individual clients were thrilled with the outcome, and it was extremely rewarding to help them advance the cause of accessibility for the deaf.
Responses provided by Arnold & Porter partners Dan Cantor and Ian Hoffman and counsel Rebecca Gordon.
—With assistance from Kibkabe Araya.