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ADA Considerations for Neurodiversity Hiring Programs

By Linda Hollinshead and Michael Bernick
August 3, 2022

ADA Considerations for Neurodiversity Hiring Programs

By Linda Hollinshead and Michael Bernick
August 3, 2022

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Employers are well aware of their ongoing obligation to reasonably accommodate individuals with disabilities, including neurodivergent candidates and employees, consistent with the Americans with Disabilities Act and state and local law.

However, targeted neurodiversity employment programs represent a rapidly growing and proactive approach to seek out and retain talent and to mitigate implicit bias against individuals with disabilities.
Neurodiversity programs target individuals with autism and other neurodiverse conditions, such as severe ADHD, dyslexia and Tourette syndrome.

Companies have been hiring adults with these conditions for some time. What is different with the new wave of neurodiversity programs is that they are intentional and structured.

These programs do not focus on individuals' limitations, but rather focus on their strengths.[1] The programs affirmatively target individuals with neurodiverse conditions and often provide alternative interviewing and selection processes.

For example, Neurodiversity @ Work Employer Roundtable,[2] a collection of employers committed to neurodiversity-focused hiring initiatives, recently rolled out the Neurodiversity Career Connector,[3] a career portal for neurodivergent job seekers.

These programs also focus on retention strategies involving ongoing support structures such as providing mentors, job coaches and ongoing training of supervisors.

This article discusses key considerations for implementing a neurodiversity hiring program.

The ADA does not prohibit a targeted neurodiversity hiring program.

Employers interested in utilizing a more intentional, focused program will be encouraged to know that the ADA does not prohibit an employer from implementing a recruitment effort targeting neurodivergent people.

Although the ADA prohibits unlawful discrimination in all aspects of the hiring process, the ADA does not prohibit a private employer from implementing an affirmative action program, even voluntarily, that includes preferences for applicants with disabilities, a percentage or numerical goal for hiring people with disabilities, or advertising jobs as reserved or prioritized for applicants with disabilities.[4]

Both the ADA itself and its implementing regulations make clear that an individual without a disability cannot bring a claim for discrimination under the ADA.[5] In other words, the ADA does not make it unlawful to discriminate against an individual when the individual does not have a disability.

However, an employer must be careful not to unintentionally direct neurodivergent applicants to only apply for positions through the targeted program. Doing so could lead to potential "steering" claims by implying that individuals with certain disabilities may only apply for certain types of positions and, therefore, are not entitled to be reasonably accommodated, regardless of the position.

Notably, employers' efforts to better understand their capacity to reach and accommodate neurodivergent applicants has led to placements within organizations in information technology, legal, finance and human resources.
Moreover, utilizing a targeted neurodiversity hiring program does not eliminate an employer's overall obligation to reasonably accommodate all applicants with disabilities, regardless of how they choose to seek entrance into an organization's employ, whether through a well-publicized specific screening process or through standard recruitment initiatives.

A targeted neurodiversity program may invite individuals to self-identify their disabilities.

Many neurodiversity hiring programs involve offering a separate hiring platform or process — typically involving alternate interview and selection processes — that neurodivergent applicants may utilize to explore potential job opportunities within an organization.

In creating such processes, employers need to balance potential privacy considerations with the benefits of their affirmative efforts to attract and retain diverse talent, and specifically, individuals with disabilities.

Employers are well aware of the basic tenet of the ADA that an employer may not inquire as to an applicant's medical condition prior to making a conditional job offer and that, after making a conditional job offer, the ADA permits an employer to make an inquiry under only very limited circumstances.

However, the U.S. Equal Employment Opportunity Commission has long recognized that employers may ask job applicants to voluntarily self-identify as individuals with disabilities, either in connection with affirmative action programs undertaken to comply with federal, state or local law or, most relevant to employers implementing targeted neurodiversity programs, when undertaken voluntarily to benefit individuals with disabilities.[6]

Thus, it is permissible for an employer's targeted neurodiversity hiring program to invite individuals with disabilities to self-identify — in other words, to self-select into the program.

Employers that provide applicants the opportunity to self-identify, however, must make clear that the information is being used solely in connection with the voluntary affirmative action efforts; that it is being requested on a voluntary basis; that it will be kept confidential consistent with the ADA; that refusal to provide it will not subject an applicant to adverse treatment; and that it will be used only in accordance with the ADA.[7]

Employers can further minimize any potential privacy considerations by not actually asking applicants for medical information when they opt into the neurodiversity hiring process and simply accepting their self-selection.

While this could, in theory, result in an individual without disabilities seeking to use a process not intended for that individual, most employers would not be as concerned about the downside of an applicant having access to more resources during a hiring process in light of the overwhelming upside of having developed an onboarding program that provides meaningful employment opportunities and decreases bias against people with disabilities.

And, on the rare occasion an applicant realizes that they did not mean to opt into the neurodiversity hiring program — e.g., they are not neurodivergent — that applicant can be redirected to apply for the same or similar position through alternate hiring channels within the organization.

Of course, as with any employee who has revealed medical information, upon hiring, an employer must maintain the confidentiality of any medical information known about the employee and may share only on a need-to-know basis, typically just with those managers who are involved in implementing any agreed-upon reasonable accommodations.

The accommodations and supports that are helpful to some may need to be offered to others.

The well-publicized display of flexibility and support structures offered within targeted neurodiversity programs can often be contagious. Other employees with disabilities in an organization may seek out those same resources, if only out of a sense of fairness, or maybe because they had not previously considered what accommodations they needed or were available to be successful.

Regardless of whether an employer offers a targeted neurodiversity program, employers must remember that the ADA requires all employers to provide reasonable accommodations to qualified individuals with disabilities that do not constitute an undue hardship.

It is only after an employer conducts an individualized assessment that it can determine whether a requested accommodation is reasonable with respect to a particular employee. These requirements apply with respect to an employer's interactions with all employees with disabilities, independent of the existence of any targeted programs.

There is no general requirement under the ADA to provide all employees, or even all employees with disabilities, with similar supports simply because it would be "fair" to do so, or because they are offered to individuals with disabilities within a targeted program.

However, very often, an employee with disabilities who is not participating in an employer's targeted program will identify the availability of a particular resource offered through that program.

Through an individualized, interactive process involving the employer and one's healthcare provider, it may be determined that the very same resource is a necessary and reasonable accommodation for the individual with disabilities outside of the targeted program.

The end result: Two employees end up with the same or similar accommodation, just through two different processes. This is not a bad result at all when your goal is to support your employees with disabilities, consistent with the ADA and applicable state and local law.

In general, implementing targeted neurodiversity programs does not diminish employer progressive discipline.

In general, the existence of a targeted neurodiversity program does not change an employer's ability to establish and maintain performance standards, even for individuals with disabilities. The employer must be prepared, however, to provide reasonable accommodations to enable employees to attempt to meet those standards.

Similarly, in many situations, an employer is permitted to hold a disabled employee accountable to follow uniformly applied conduct standards, regardless of whether that employee participates in a targeted neurodiversity program.

Lawfully managing these performance and conduct standards depends upon being consistent with their enforcement, but also being careful to avoid making stereotypical presumptions as to an individual's ability to improve.

One of the biases often experienced by neurodivergent employees is an unfair assumption that certain personality traits are indicative of misconduct or poor performance, or that the absence of certain skills will prevent them from effectively performing the position — for example, missteps with social cues, or challenges with maintaining eye contact or interacting one-on-one.

One of the benefits of intentional, targeted neurodiversity programs is that they take a critical look at what is actually needed to perform a position and identify various modes of acceptable communication.

In doing so, these programs help to redefine and expand what it means to be successful in a position, narrowing the definition of what is poor performance and increasing the opportunity for success. Ongoing education in these areas reduces the unintentional bias that may cause managers and supervisors to misinterpret differences for deficiencies.

Positive outcomes from targeted neurodiversity programs extend beyond neurodivergent talent.

Employers are seeing positive outcomes from these programs as they drive talent to their organization. Successful programs, however, focus on much more than hiring, and expand their structured supports to focus on activities that can improve retention — job coaches, mentoring, additional visual and written guides and instructions.

When employers make it known that employees with disabilities outside of the neurodiversity program are not prohibited from availing themselves of similar resources if needed as a reasonable accommodation, the program serves as a baseline for success, not a competitive advantage for only a few.

The value these programs place on respecting differences and moving past implicit bias to focus on ways individuals can successfully contribute to the organization also has a positive impact on neurotypical employees.

When supervisors improve their skills in managing neurodivergent employees, those very same competencies — increased patience, recognition of alternate learning and communication styles, appreciation of the value of direct and consistent feedback — improve supervisor capability and effectiveness with respect to all employees.

The operational benefits of an appropriately structured program not only enhance the talent pool, but also have the potential to reduce the likelihood of ADA discrimination and failure-to-accommodate claims due to the increased sensitivity to the applicants' and employees' needs and the appreciation for the successes that can be driven by the reasonable accommodation process.

Reprinted with permission of Law360.