Some employers do—and more employers should—track neurodiversity as part of their DEI efforts. But in-house attorneys would be wise to pay attention to neurodiversity for reasons that go beyond DEI. The Equal Employment Opportunity Commission is paying attention too—and it’s receiving a growing number of disability discrimination charges based on neurodiverse conditions.
Neurodiversity refers to differences in the ways the brain processes information and includes neurological conditions like autism, attention deficit hyperactivity disorder (ADHD), and dyslexia. Some researchers and advocates include psychiatric/mental health disabilities under the neurodiversity umbrella too. Neurodiverse employees may perform some tasks better, more efficiently, and more creatively than neurotypical employees, making them valuable contributors to a diverse workforce.
Some neurodiverse workers will be considered disabled under the Americans with Disabilites Act or under state and local laws. Qualified, disabled neurodiverse workers may be entitled to reasonable accommodations that look different than those for neurotypical workers. Written-down deadlines, more predictable schedules, company-issued headphones, and personal coaches are some examples.
The EEOC is watching. It tracks disability charges by basis, and since 2016, an increasing percentage of them have been based on a condition that could be considered neurodiverse. In 2020, that percentage was 38%, up from 36% in 2019. The conditions cited in the charges vary. In 2020, the largest number of charges (10%) were based on anxiety disorder, while less than 1% were based on autism, according to EEOC data.
Lawsuits involving neurodiverse plaintiffs have been filed by the EEOC (and private litigants) for years, and claims will continue as awareness and diagnosis of neurodivergent conditions like autism increase, along with awareness of the neurodiversity movement both inside and outside U.S. workplaces. Employers should embrace neurodiverse employees, afford them the same nondiscrimination and reasonable accommodation protections they provide other disabled employees, avoid stereotyping, and think creatively about ways to support them during the hiring process and beyond.
Bloomberg Law subscribers can find more information about disability discrimination on our Disability Discrimination & Accommodation practical guidance page.
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