Neurodivergence Discrimination

Often, yes. Although neurodivergence is generally not considered a disability per se, neurodivergence can be considered a disability pursuant to the ADA because it falls under the category of “mental impairment” and is therefore protected by The Act. Whether specific neurodivergent conditions are qualifying disabilities under the ADA will depend on whether the individual’s condition meets the definition of a disability. This means that the individual must establish that they not only have a mental impairment but that the condition substantially limits one or more of the major life activities.

Individuals with neurodivergent conditions often experience unique challenges in a world primarily designed for neurotypical individuals, especially when finding and maintaining satisfying employment. For this reason, the protection of the ADA is of immense importance to the neurodivergent community.

The ADA prohibits discrimination based on an individual’s disability and requires employers to provide reasonable accommodations to those with disabilities, usually including individuals with neurodivergent conditions.

“Reasonable accommodation” means any modification or adjustment to your job or the work environment that will allow you, as a qualified employee with a disability and/or neurodivergent condition, to do the essential job functions.

The first place to look is to see if there is a written job description as part of an employee handbook, training manual, or advertising material. Obviously, if a company or employer does not list the job function in such materials, it cannot be an essential job function. Absent such material, this may become a question of fact based on the testimony of other employees that have performed the job and the supervisor in that department. A question of fact always favors the employee because that means the debate should be settled by a jury as opposed to the judge.

Your employer is only required to provide a reasonable accommodation for a “know” neurodivergent condition. Typically, the requirement to provide a reasonable accommodation will be initiated as a result of a request by a neurodivergent worker for the accommodation. If you have not requested an accommodation for your neurodivergent condition, then your employer does not have to provide one. Moreover, because your supervisors may lie about it later, it is always best to make your requests in writing and send it to your supervisor or Human Resources in a way that delivery can be confirmed, such as email or fax.

No. Your employer is not required to provide your requested accommodation if that accommodation would cause an “undue hardship” on the company’s business operations. “Undue hardship” is defined as “an action requiring significant difficult or expense” when considering the nature and cost of the accommodations as compared to the size, resources, nature, and structure of the company that you work for. This analysis must be individually considered on a case-by-case basis. If your employer believes that the accommodation requested by you creates an undue hardship, the company must work with you to identify different possible accommodations that would not create such a hardship. This is called an interactive process. You should also note that if your employer points to a significant cost as the basis of the undue hardship, you must be given the opportunity to pay for the cost above the point where it becomes an undue hardship.

Accommodations in the workplace can significantly support the inclusion and success of individuals with neurodivergent conditions. Here are some examples of accommodations that can be made: 

• Flexible Work Arrangements: Allowing flexible work hours, remote work options, or alternative schedules can help accommodate the specific needs of neurodivergent employees.
• Sensory Considerations: Creating a sensory-friendly environment by minimizing noise levels, providing noise-cancelling headphones, offering designated quiet areas, or adjusting lighting can help reduce sensory overload and improve focus and comfort for those with neurodivergent conditions.
• Clear Communication and Instructions: Providing clear and concise instructions, utilizing visual aids or written communication, and offering opportunities for clarifications or written summaries can support neurodivergent individuals who may struggle with verbal or auditory processing.
• Assistive Technologies: Offering assistive technologies or software tools such as text-to-speech software, speech recognition tools, or specialized applications can assist with reading, writing, organization, and task management for those with neurodivergent conditions.
• Job Task and Environment Modification: Modifying job tasks or responsibilities to align with individual strengths, adapting the physical workspace, or providing privacy options to optimize the work environment for neurodivergent employees.

If you have a neurodivergent condition and your employer denies you any one of these (or similar) accommodations without proving that the accommodation would cause an undue hardship, you may have a claim for neurodivergence discrimination and may be entitled to damages.

• Structured and Organized Work Environment: Your employer can create a structured work environment for you that could help minimize distractions. This can include assigning you a dedicated workspace, minimizing noise and visual distractions by your workspace, and establishing clear procedures for behavior near your workspace.
• Assistive Technology: Your employer can provide assistive technology tools to support your productivity. This may include access to specialized software, time management apps, or organizational tools that can help with task management and focus.
• Breaks: Your employer can implement structured breaks or offer flexible scheduling for breaks to keep you focused and on task.
• Workplace Coaching or Mentoring: Your employer could provide you with workplace coaching or assigning you a mentor who can assist you in managing your ADHD symptoms and develop strategies for you to improve your performance and productivity.

• Communication Methods: Your employer can offer you alternative communication methods. This could include utilizing email or instant messaging for communication, allowing for written responses instead of verbal ones, or providing a communication buddy for important meetings.
• Workspace Customization: Your employer can allow you to personalize your workspace to create a comfortable and calming environment. This can include bringing in familiar objects or sensory items, adjusting desk and chair heights, or using visual cues to organize and label items.
• Sensory Breaks: Your employer can create designated sensory break areas or provide access to sensory-friendly spaces where you can engage in activities to self-regulate and relax. This can include quiet rooms, sensory rooms, or areas with soothing lighting and sensory tools.
• Sensory-friendly Policies: Your employer can implement policies such as reducing fluorescent lighting, minimizing strong odors in the workplace, provide you with noise-cancelling headphones, or offering flexible workspaces to accommodate sensory needs.

• Extended Time for Tasks and Assessments: Your employer can all you to have additional time to complete assignments, tasks, and other projects. This accommodation can help you manage your dyslexia and ensure that you have enough time to demonstrate your abilities.
• Reading Assistance: Your employer can arrange for access to audiobooks, screen readers, or the availability of someone who can read aloud written materials when needed. This will help you to access written information more effectively.
• Proofreading Assistance: Your employer can provide you with proofreading and editing support, either through colleagues or external resources, to ensure that written materials are free of spelling or grammatical errors.
• Alternative Formats: Your employer can allow for alternative formats of materials, such as audio recordings or accessible electronic documents, to accommodate difficulties in reading or deciphering text. Providing accessible formats can facilitate comprehension and information processing.

• Private Workspace: Your employer can provide you a private or semi-private workspace that allows you to work in a more secluded area, reducing exposure to crowded or busy environments. This can help alleviate anxiety triggered by excessive social interactions or distractions.
• Gradual Exposure: Your employer can develop a plan for you to gain gradual exposure to social situations that cause anxiety. This can include gradually increasing involvement in team meetings, presentations, and networking events, allowing for a step-by-step approach to building comfortability.
• Alternative Meeting Formats: Your employer can set up smaller group meetings for you to attend or one-on-one discussions to minimize the number of people present to create a more welcoming work environment.
• Supportive Human Resources Policies: Your employer can create policies that reflect a supportive stance on mental health and social anxiety. This can include promoting mental health awareness, providing resources for mental health support, and offering other helpful mental health services.

If an employer refuses to engage in the interactive process, it has violated the law. Many bosses, manager, and supervisors have argued that there was no reason to engage in the interactive process because all accommodations would be unduly burdensome to the employer. This argument will not prevail for the employer as the Americans with Disabilities Act and Ohio law require the employer to at least have some dialogue about accommodating your neurodivergence.

Under the ADA and Ohio law, you are only required to have the ability to do the essential job functions. You will not be found unqualified just because of difficulty performing smaller or incidental job functions. If you are qualified to do the essential job functions except for the limitations due to your neurodivergent condition, you employer is required to evaluate if you could do the job with reasonable accommodations. If you are otherwise the best candidate for the position, you should get the job.

While trying to fill a position, a potential employer is not permitted to ask an applicant anything about a neurodivergent condition or a perceived neurodivergent condition. This means that the interviewer cannot ask questions about the nature or severity of your neurodivergent condition. An interviewer is permitted to ask neurodivergent applicants about the ability to perform specific job functions. This may include questions that require the applicant to describe or even demonstrate how to perform essential job functions.

Companies are not permitted to force or even ask an applicant for the position to undergo even a single medical examination before making a job offer. However, if required of all new employees in the same job category, a company may make a job offer contingent on the applicant passing a post-offer medical examination. A post-offer required medical exam can only disqualify an applicant if the company can show that continuing through with the offer would pose a significant risk of substantial harm to the health or safety of the applicant or other workers; and that substantial risk cannot be eliminated or reduced to an acceptable level with reasonable accommodations.

Unfortunately, some employers will fire you before or after providing an accommodation. Our employment law attorneys have provided as much information as we possibly can on this website, but an evaluation of your particular chances to prevail on a claim for neurodivergence discrimination and wrongful termination cannot be done without a discussion regarding the particular facts relating to your termination and employment situation. Because our employment law attorney fight for employees’ rights every day, we offer a free initial consultation. It is not worth guessing about your possible rights and claims when a call or a form submission can get you the appropriate answer for free.