This article was originally published in
Husch Blackwell's Labor and Employment Law Insights blog and is published here with the author’s permission.
While diversity, equity, and inclusion have slowly made their way to the forefront of many employers’ minds, two dimensions of diversity are often overlooked in these discussions –neurodiversity and ability diversity.
More than 1 billion people, 15% of the global population, live with a disability. Thus, employers must ensure that neurodiversity and employees and applicants with disabilities are properly represented in DEI initiatives.
First, it is helpful to understand the history and background of the term neurodiversity to create an informed foundation of the topic. A
movement transpired in the 1990s that aimed to increase acceptance and inclusion of all people through understanding neurological differences. It was during this time the term neurodiversity was coined by an Australian sociologist, Judy Singer. John Elder Robison, a neuroscience scholar described neurodiversity as “the idea that neurological differences like autism and ADHD are the result of normal, natural variation within the human genome.” Much as different styles of art such as Impressionism, Surrealism, or Renaissance can be appreciated for their own merits, differing neurology should also be recognized for its virtues. For example, certain neurodivergent employees may have
higher-than-average abilities in pattern recognition, memory, or mathematics (such as those with autism or dyslexia), which is beneficial in certain job categories and industries.
Catarina Colón, U.W. 2019, is a labor and employment associate with
Husch Blackwell, where her practice focuses on primarily on diversity, equity, and inclusion consulting and general labor and employment counseling.
Neurodiversity is often seen as falling under the disability umbrella. According to the World Health Organization, disability is an umbrella term that covers impairments, limitations, and restrictions on participation and the Americans with Disabilities Act defines disability as a “physical or mental impairment that substantially limits one or more major life activities.” The Act defines what falls under “major life activities” as seeing, hearing, speaking, walking, breathing, performing manual tasks, learning, caring for oneself, and working. The ADA prevents employers from discriminating “against qualified individuals on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” Because the term
disability is far more complex than simply physical health, employers must ensure that their workforce is inclusive of neurodiverse employees and must provide accommodations for those employees when appropriate.
A recent case is demonstrative of the legal penalties employers can face when they are insensitive to the needs of neurodivergent employees.
A jury awarded an employee $450,000 after his employer ignored his request to not throw him a birthday party because it would result in a panic attack due to his anxiety disorder. The party was held during his lunch hour, and he promptly left the workplace and ate his lunch in his vehicle. The following day, the employee was “criticized” for his reaction to the party and was told that he stole his coworkers joy, which triggered another panic attack. Several days later, the employee was terminated via email, in which the company cited concerns regarding his behavior during the meeting following the unwanted birthday celebration. The employee sued his employer, alleging failure to accommodate, disability discrimination, and retaliation. The jury found in the employee’s favor and awarded him the hefty sum noted above for lost wages and mental anguish.
So, what are best practices to ensure neurodivergent and individuals with disabilities are provided equal and fair opportunities in the workplace? Here are a few places to start:
Review and revamp your hiring practices. Make sure your job postings are welcoming to neurodivergent and applicants with disabilities by advertising when a position has accommodations like flexible hours or telework options. Use phrasing such as, “Ability to complete tasks with or without reasonable accommodations,” or “Access to reliable transportation,” as opposed to “Access to your own vehicle.” Train interviewers on how verbal and non-verbal responses should be interpreted and encourage direct questions as opposed to open-ended questions.
Creative inclusive work environments. Use subtitles for all webinars and presentations, ensure physical spaces are accessible. Review your website for compliance with the ADA and enable screen reader capabilities for all online content. Provide noise-canceling headphones or quiet spaces for those with sensory needs. Maintain large print physical copies of company policies and employee handbooks. Create or encourage the creation of an employee resource group for neurodivergent or disabilited employees. Regularly seek collaboration with and input from neurodivergent employees.
Provide reasonable accommodations. This requires creativity on the part of employers, but more importantly an open and honest dialogue with employees that may need accommodations. It is best to go to the source to understand what accommodations may be the most beneficial. Some examples of reasonable accommodations might include remote working arrangements, interpreters, modified equipment, fragrance-free environments, imaged-based task lists, or part-time/modified work schedules.
As with any reasonable accommodation made for an employee with a disability, accommodations do not require lowering performance standards or eliminating essential job functions. Instead, it means modifying the work environment, or the way in which tasks are completed, to help employees successfully perform their job duties. The world is wonderfully diverse and as such, employers must strive to make their workplaces as inclusive and welcoming as possible.
The Husch Blackwell Labor and Employment team wishes to gratefully acknowledge the significant contribution of Masroor Ahmad, a summer associate.