‘ADA Generation’ Fuels Rise in Neurodiverse Employee Bias Claims

Disability discrimination claims from neurodiverse employees with conditions like autism are growing along with increased diagnoses, presenting employers with opportunities for inclusivity that come with potential pitfalls around violating workers’ rights.

There were 488 autism-related Americans with Disabilities Act charges filed to the US Equal Employment Opportunity Commission in fiscal year 2023, compared to just 53 filed ten years earlier and only 14 in 2003, according to EEOC data.

The spike correlates with greater awareness, especially among Gen Z workers, of many neurodivergent conditions, like dyslexia and attention deficit hyperactivity disorder. As neurodivergent employees become more visible, employers are reckoning with how to modify workplace practices accordingly.

“It’s not that employers need to be more fearful of this; employers need to do their due diligence and educate themselves on accommodations, on disability rights, and not just be ignorant at best and discriminatory at worst,” said Haley Moss, an attorney and autism advocate. “It’s so easy to fall into that fear trap when really it’s just a lack of understanding.”

Title I of the ADA protects neurodiverse people from workplace bias and requires reasonable accommodations to enable a qualified individual with a disability to perform the essential functions of their job. The law defines a disability as a physical or mental impairment that substantially limits one or more major life activities, including learning, communicating, and interacting.

‘ADA Generation’

Disability advocates call the youngest members of the workforce the “ADA Generation” because they cannot remember a time when the landmark 1990 law didn’t exist.

They “tend to have more of a baseline expectation of inclusion and accommodation,” said Zoe Gross, director of advocacy for the Autistic Self Advocacy Network.

“They see this as something that’s their legal right, their civil and human rights. And so that’s different from a previous mentality, which may have been people with disabilities should be happy just to have the job and shouldn’t make waves,” Gross said.

Gen Z is significantly more likely than any other cohort to report having learning and thinking differences, according to an April survey from nonprofit Understood.

Some 42% of Gen Z adults surveyed reported asking an employer for accommodation, compared to 27% of Millennials, 21% of Gen X, and 13% of Boomers.

The ADA generation’s entrance into the workforce has accompanied an uptick in adult diagnoses of neurodivergent conditions. Annual autism diagnosis rates between 2011 and 2022 were highest among younger age groups, but the relative increase in diagnosis rates in that period was generally greater among older groups, according to a study published in JAMA Open Network.

The Covid-19 pandemic move to remote and hybrid work was another driver of increased visibility by showing how traditional workplace set-ups often disadvantage neurodivergent workers, advocates and attorneys said. Remote work has since been the most commonly requested accommodation for neurodivergent employees under the ADA and similar state laws because it provides control over their work environment, they said.

“If you have someone who doesn’t do well in public settings and prefers to work in an isolated environment or they’ve got lighting or temperature concerns” these needs can be more easily accommodated at home, said Sheila M. Abron, a partner at Fisher & Phillips LLP.

As a result, employers face challenges in understanding how these factors impact their workforce as return-to-office policies gain ground, she said.

Interactive Process

Recently there have been big year-over-year spikes in autism-related EEOC charges, including a jump of 180 from 2022 to 2023 alone. The EEOC data doesn’t break down charges based on other neurodiverse conditions.

Between 2018 and 2024, the commission filed at least 12 ADA cases claiming discrimination against workers with neurodiverse conditions. Allegations included employers denying accommodations, such as time off for counseling, and terminating or rescinding job offers based on diagnoses.

In a case the EEOC filed in 2022 and ultimately settled, a Subway franchise discriminated against an autistic person who also had ADHD working as a sandwich-maker. The company allegedly didn’t provide the requested accommodations to give specific enough instructions on work tasks, along with redirection and follow-ups, and fired the employee after only four shifts.

There’s little appellate-level ADA case law on workplace neurodiversity, but district courts have often ruled for workers whose conditions are explicitly covered by the statute and denied reasonable accommodations, attorneys said.

But companies have occasionally prevailed, including in 2021 when the US Court of Appeals for the Fifth Circuit ruled Microsoft Corp. wasn’t legally obligated to provide personal assistants for an executive with Autism Spectrum Disorder.

Offering assistants to translate his verbal communications into writing, record meeting notes, and conduct other administrative tasks invalidated his ADA claim as they would exempt him from performing essential job functions like client communication and managing complex projects, the court said.

Companies are required to engage in a good-faith interactive process with ADA-qualified workers seeking accommodations.

Discussions with neurodivergent workers about accommodations should be personalized, and approval of their requests should be tailored to their specific needs, Abron said.

Hiring practices must recognize these individuals may not always perceive or conform to typical social cues, so employers must prioritize assessing their skills, experiences, and accomplishments, she said.

“Sometimes well-meaning inclusion efforts can cross the line like inappropriate medical inquiries” to determine accommodations, she said. There’s a “very delicate balance when gathering information” to both follow the ADA and keep the environment inclusive.

The broad range of potential accommodations for workers with neurodiverse conditions include allowing them to have a timer on their desks to help with time management, allowing for more frequent breaks, or letting workers wear headphones.

Some changes may require “rethinking what professionalism is and how it looks at your company,” like adjusting expectations about employees’ behavior during large meetings so “the person who can’t sit still with their feet on the floor looking at the speaker for two hours straight is not going to be stigmatized or set apart,” Gross said.