Duties and functions

Creating Inclusive Workplaces for Neurodivergent and Disabled Employees | Husch Blackwell LLP

While diversity, equity and inclusion have slowly made their way to the forefront of the minds of many employers, two dimensions of diversity are often overlooked in these discussions: neurodiversity and diversity of ability. More than one billion people, or 15% of the world’s population, live with a disability. With so many people in neurodiverse categories or with different abilities (disabilities), employers need to ensure that these people are properly represented in DEI initiatives.

First, it is helpful to understand the history and context of the term neurodiversity to create an informed foundation on the subject. A movement transpired in the 1990s that aimed to increase acceptance and inclusion of all people through understanding neurological differences. It was around this time that the term neurodiversity was coined by an Australian sociologist, Judy Singer. John Elder Robison, a neuroscientist, described neurodiversity as “the idea that neurological differences like autism and ADHD are the result of normal, natural variation within the human genome.” Just as different art styles such as Impressionism, Surrealism, or the Renaissance can be appreciated on their own merits, different neurology should also be recognized for its virtues. For example, some neurodivergent employees may have above-average abilities in pattern recognition, memory, or math (such as those with autism or dyslexia), which is beneficial in certain job categories and industries.

Neurodiversity is often considered a disability. 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 significantly limits one or several major life activities. The law defines what are “main activities of life” such as seeing, hearing, speaking, walking, breathing, performing manual tasks, learning, self-care and working. The ADA prevents employers from discriminating “against qualified persons on the basis of disability with respect to job application procedures, hiring, promotion or termination of employees, compensation of employees , vocational training and other terms, conditions and privileges of employment”. Because the term disability is far more complex than just physical health, employers must ensure that their workforce includes neurodiverse employees and must provide accommodations for such employees where appropriate.

A recent case is illustrative 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 not to throw him a birthday party because it would lead to a panic attack due to his anxiety disorder. The party was during his lunch hour, and he quickly left the workplace and ate his lunch in his vehicle. The next day, the employee was ‘criticized’ for his reaction to the party and told he had stolen his co-workers’ cheer, triggering another panic attack. A few days later, the employee was fired via email, in which the company raised concerns about his behavior at the meeting following the unwanted birthday celebration. The employee sued his employer, alleging improper accommodation, 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 the best practices to ensure that employees who are neurodivergent and with different abilities have equal and fair opportunities in the workplace? Here are some starting points:

  • Review and revamp your hiring practices. Make sure your job postings are welcoming to candidates who are neurodivergent and have different abilities by advertising when a position has accommodations like flexible hours or telecommuting options. Use phrases such as “Ability to perform duties 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 and inclusive work environments. Use captions for all webinars and presentations, ensure physical spaces are accessible. Check your website for ADA compliance and enable screen reader features for all online content. Provide noise canceling headphones or quiet spaces for people with sensory needs. Keep large-print physical copies of company policies and employee handbooks. Create or encourage the creation of an employee resource group for neurodivergent or differently abled employees. Regularly seek collaboration and input from neurodivergent employees.
  • Provide reasonable accommodation. This requires creativity on the part of employers, but above all an open and honest dialogue with employees who may need accommodations. It is best to go to the source to understand which accommodations may be most beneficial. Some examples of reasonable accommodations may include remote work arrangements, interpreters, modified equipment, scent-free environments, image-based to-do 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 tasks are performed, to help employees perform their tasks successfully. The world is wonderfully diverse, and as such, employers should strive to make their workplaces as inclusive and welcoming as possible.

The Labor and Employment team would like to thank Masroor Ahmad, a summer associate, for his important contribution.

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