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Season 3, Episode 11: Neurodiversity in the Workplace: Embracing Differences, Enhancing Inclusion
From Lawyer to Employer: A Shipman Podcast
In this episode of From Lawyer to Employer, host Dan Schwartz welcomes back Shipman's Claire Pariano for a thoughtful conversation on neurodiversity in the workplace. They explore what neurodiversity means, legal protections under the ADA and FMLA, common employer pitfalls, and practical steps organizations can take to create truly inclusive environments for neurodivergent employees. With insights into reasonable accommodations and inclusive hiring practices, this episode offers both legal guidance and a call for empathy and awareness.
Host: Welcome to From Lawyer to Employer, a Shipman podcast, bringing you the latest developments in labor and employment law, offering you practical considerations for your organization. You can subscribe to this podcast on Apple, Spotify, or wherever you listen. Thank you for joining us, and we hope you enjoyed today's episode.
Daniel Schwartz: Welcome back to From Lawyer to Employer. I'm your host, Dan Schwartz, a partner in the Labor Employment and Education Group at Shipman & Goodwin. On today's podcast, we're going to talk about neurodiversity in the workplace and joining me today, and I'm bringing her back, it's my colleague Claire Pariano, who wrote about this issue a few months back.
Welcome back to the podcast, Claire.
Claire Pariano: Thanks, Dan. Happy to be here.
Daniel Schwartz: So, before we dive into this, I want to set this discussion up from something I saw recently on TV. And for those who know me, I've been a big fan of the TV show Survivor for all 48 seasons. I listen to their podcast as well, and yes, that's a lot of time - but it's a remarkable show that brings together people from all walks of life and this season features a young woman with autism named Diva, and in a recent episode, she struggled with part of a challenge and was ultimately consoled by another participant. As a result of that, she opened up about her autism, and she said this, which I wanted to quote, she said “I've never viewed my autism as a roadblock to success. It's not something to work around. It's just part of who I am. It's nothing bad about it”. And I thought that was a great place to sort of bring our discussion in and it's an important perspective to bring. So, Claire, having set that up, let's start with some basics, which is, what is neurodiversity?
Claire Pariano: So, neurodiversity is a term that describes people whose brains develop or work differently.
It's the idea that people experience and interact with the world around them in many different ways, and there's no right way of thinking or behaving. It's often used in the context of the Autism Spectrum dDsorder, as you mentioned, as well as other neurological or developmental conditions, so that's ADHD, dyslexia and other social anxiety disorders, and it's coming to light more recently with the focus instead of trying to fix these difference, the neurodiversity approach focuses on understanding, accepting and supporting people with different brain types in their daily life.
Daniel Schwartz: Yeah, and that's a great, great point, and I think we've seen a lot more awareness about it. Let's bring it into the workplace. Why should employers care about neurodiversity in the first instance.
Claire Pariano: Well, first and foremost, it impacts around 15 to 20% of the population today. So neurodiverse individuals make up a large portion of today's workforce.
There are also many other reasons why an employer should take notice. Including compliance with legal rules, which is why we're here today. But beyond that, these types of individuals are often credited with exceptional skills, so that includes attention to detail, sharpened concentration, pattern recognition, creativity, and elevated problem-solving skills that can also provide competitive advantages for an employment opportunity.
Daniel Schwartz: Yeah, so we talk a lot on this podcast about the Americans with Disabilities Act and some of the state law equivalents that Connecticut has that protects people with disabilities. So how does the ADA define an protect neurodivergent employees, and sort of, I guess, related to that, what conditions would typically fall under this protection?
Claire Pariano: The ADA does have established protections for the basic rights of disabled individuals and prohibits the discrimination of these disabilities. It covers individuals who have a physical or mental impairment that substantially limits one or more major life activity, which can include neurological differences such as autism and dyslexia, as we touched on earlier and similar conditions when they significantly impact thinking, concentrating, or communication of an employee. It's important to note that there's no definitive list of protected conditions, and oftentimes it depends on how these conditions affect an individual's functioning in the workplace. So, it's, it's an individual assessment.
Daniel Schwartz: Yeah, so I think to that point, to qualify for ADA protections, employees must still be able to sort of perform the essential functions of the job with or without an accommodation, right?
Claire Pariano: Exactly. Yes, that's exactly correct.
Daniel Schwartz: Alright, so what might constitute a reasonable accommodation for neurodivergent employees? And you know, how might this differ from what I think employers are traditionally comfortable with, which is employees that have a physical disability.
Claire Pariano: Exactly. I think employers are used to seeing physical accommodations for employees, and these often include equipment-based accommodations while neurodiversity accommodations frequently involve workplace processes, communication methods, and environmental adjustments. So, these accommodations that you might see include flexible schedules to allow individuals to work at peak hours for individual assessment, noise canceling headphones, which is in incredibly important in more of a common workplace where there are shared cubicles, modified lighting, written instructions, or private workspaces.
Daniel Schwartz: I think to that point, the interactive process is going to be particularly important in this situation because these accommodations are probably pretty specific to the individual that you know, much like the rest of us, people who are neurodivergent may have different needs that need to be adjusted to them. So, I don't think a one size fits all approach is going to work here, right?
Claire Pariano: Yeah, and I think employers should consider traditional and peer mentoring to sustain employment for these individuals and really reach out to them to see what accommodations can be made to help them succeed.
Daniel Schwartz: So, as we're thinking about it, what would be the types of mistakes that employers might make when handling these requests?
Claire Pariano: Yeah, and because this is different from a physical impairment, as we touched on earlier, employers can often make the mistakes of dismissing these invisible disabilities. Or assuming the employee is simply being difficult. As we touched on earlier, it's different from a physical impairment, so it's not as always keen to the eye. You can't see it right away. Failing to engage in a robust interactive process, the employer must, must engage and identify effective accommodations for these individuals.
Daniel Schwartz: Yeah, I think on that point, the failure to engage in a robust, interactive process, I really can't emphasize that enough. And I think sometimes employers think, well - I've talked to them once, I should be good.
And really it has to be sort of a tennis match, right, going back and forth between that. So let me switch gears just for a second and talk about the FMLA. So, the Family and Medical Leave Act that might also apply to this situation as well, maybe to employees who need, let's say intermittent leave or therapy or treatment.
Claire Pariano: Exactly, yes, the FMLA or the Connecticut state equivalent covers intermittent leave for therapy or treatment related to neurological conditions that qualifies a serious health condition. Employers should obtain documentation for this leave, including oftentimes a certification from healthcare providers.
Daniel Schwartz: So that's sort of the basics, I suppose, on the legal obligations here. But we were also, I think talking with employers about trying to create a really inclusive workplace for those individuals. So, as they're thinking about that, how might they adjust their approach to this issue?
Claire Pariano: So, the legal compliance represents the minimum standard that an employer must take while in comparison to an inclusive practice, it extends beyond the legal requirements to create an environment where neurodivergent employees thrive.
So, we recommend that employers who are seeking to build a more inclusive environment may consider offer additional training sessions that dive deeper into the understanding of neurodiversity and its implications in the workforce.
Daniel Schwartz: So, let's think of a situation an employer hears from an employee and the employee reveals probably with a little bit of trepidation that they are on the spectrum. How does an employer sort of deal with that situation?
Claire Pariano: So, as with any other disability requests employers must treat all disability related information, even with neurodivergent individuals as confidential. So, this includes medical records and disclosure of these requests should be limited to those individuals who need to know, such as an employee, supervisor, or individuals in HR. And as always, we recommend that medical records relating to disabilities are kept in a separate medical file from a personnel file.
Daniel Schwartz: It's a great point to keep this information confidential, that just because someone's disclosed it to you doesn't give the employer the right to relay this to the workplace. And I think one of the worst things an employer could do is, hearing from an employee and then sending out an email going, ‘hey - Joan has autism and I just want everyone to know about it’. I think with all types of medical conditions, you want to treat it with some level of discretion there. So, you were talking about sort of medical records and documentation, so is there a type of medical documentation that an employer can legally request to verify a condition and what might cross the line into a privacy violation here?
Claire Pariano: So employers can request documentation. It must relate to the existence of a disability and the need for an accommodation. But employers should not demand the full medical records or detailed diagnostic information that really goes beyond the scope here and just another plug - employers should keep the medical records separate from all personnel file information.
Daniel Schwartz: Yeah, one of the other questions we sometimes get on neurodiversity in the workplace is managing performance. And obviously in the workplace, managing performance remains paramount, right? So, how should employers think about it here, where an employee might be struggling in some areas, but excelling in others?
Claire Pariano: So, employers should be certain to distinguish between an employee's essential and non-essential job functions, the focus should really be on essential job functions to determine whether or not they're struggling in certain areas, and review these to determine what reasonable accommodations can be made.
Daniel Schwartz: I mean, I think with the performance issues coming up, they're really going to present themselves in different situations, right?
Like some employees might need their performance requirements written out to them, like, need to know, ‘here's what you need to be doing’. Other employees are going to be fine. A conversation is fine. And I think as you mentioned before on some accommodations, you know, the accommodations for people with neurodiversity might involve written instructions. So that isn't the worst thing in the world, and frankly, it's probably a good practice to have anyways. You know, as we sort of wrap this up here, let's go back to sort of big picture of the legal risks that they face here. So, let's suppose they have, you know, sort of an attendance policy that is, you know, supposedly strictly construed. So, what types of legal risks are present here?
Claire Pariano: Similar to other claims brought under the ADA, employers may face disparate impact claims if facially neutral policies disproportionately affect neurodivergent employees. So, I think a good example is prohibiting the use of headphones in the workplace. As we mentioned, they might be more impacted by sounds, and these headphones help. Employers may also be subject to hostile work environment claims if neurodivergent employees face harassment within the workplace. Finally, employers should be aware of hiring practices that may screen out qualified neurodivergent candidates and consider accommodations to assist neurodivergent friendly interviews such as fewer interviewers in a single setting.
Daniel Schwartz: And one of the concerns I've heard recently is that with the rise of AI assisted interviews, where you know they may be looking for facial patterns of employees, you need to be aware that type of system could disproportionately impact those with autism who may not take those social cues that others get. So, it's a great point to be aware of on the hiring practices. So, great. Claire, I really appreciate you joining me for this episode. As always, we'd love to hear from you. If you have any questions that you would like to see addressed on a future podcast, love to hear from you. My email is dschwartz@goodwin.com. But otherwise, we will wrap up this episode and hope to see you again on the next podcast.
Host: Thank you for joining us on this episode of From Lawyer to Employer, a Shipman podcast. This podcast is produced and copyrighted by Shipman and Goodwin, LLP. All rights reserved.
The contents of this communication are intended for informational purposes only and are not intended or should not be construed as legal advice. This may be deemed advertising under certain state laws. Subscribe to our podcast on Spotify, apple Podcast, or wherever you listen. We hope you'll join us again.
Claire Pariano: So, neurodiversity is a term that describes people whose brains develop or work differently.
It's the idea that people experience and interact with the world around them in many different ways, and there's no right way of thinking or behaving. It's often used in the context of the Autism Spectrum dDsorder, as you mentioned, as well as other neurological or developmental conditions, so that's ADHD, dyslexia and other social anxiety disorders, and it's coming to light more recently with the focus instead of trying to fix these difference, the neurodiversity approach focuses on understanding, accepting and supporting people with different brain types in their daily life.
Daniel Schwartz: Yeah, and that's a great, great point, and I think we've seen a lot more awareness about it. Let's bring it into the workplace. Why should employers care about neurodiversity in the first instance.
Claire Pariano: Well, first and foremost, it impacts around 15 to 20% of the population today. So neurodiverse individuals make up a large portion of today's workforce.
There are also many other reasons why an employer should take notice. Including compliance with legal rules, which is why we're here today. But beyond that, these types of individuals are often credited with exceptional skills, so that includes attention to detail, sharpened concentration, pattern recognition, creativity, and elevated problem-solving skills that can also provide competitive advantages for an employment opportunity.
Daniel Schwartz: Yeah, so we talk a lot on this podcast about the Americans with Disabilities Act and some of the state law equivalents that Connecticut has that protects people with disabilities. So how does the ADA define an protect neurodivergent employees, and sort of, I guess, related to that, what conditions would typically fall under this protection?
Claire Pariano: The ADA does have established protections for the basic rights of disabled individuals and prohibits the discrimination of these disabilities. It covers individuals who have a physical or mental impairment that substantially limits one or more major life activity, which can include neurological differences such as autism and dyslexia, as we touched on earlier and similar conditions when they significantly impact thinking, concentrating, or communication of an employee. It's important to note that there's no definitive list of protected conditions, and oftentimes it depends on how these conditions affect an individual's functioning in the workplace. So, it's, it's an individual assessment.
Daniel Schwartz: Yeah, so I think to that point, to qualify for ADA protections, employees must still be able to sort of perform the essential functions of the job with or without an accommodation, right?
Claire Pariano: Exactly. Yes, that's exactly correct.
Daniel Schwartz: Alright, so what might constitute a reasonable accommodation for neurodivergent employees? And you know, how might this differ from what I think employers are traditionally comfortable with, which is employees that have a physical disability.
Claire Pariano: Exactly. I think employers are used to seeing physical accommodations for employees, and these often include equipment-based accommodations while neurodiversity accommodations frequently involve workplace processes, communication methods, and environmental adjustments. So, these accommodations that you might see include flexible schedules to allow individuals to work at peak hours for individual assessment, noise canceling headphones, which is in incredibly important in more of a common workplace where there are shared cubicles, modified lighting, written instructions, or private workspaces.
Daniel Schwartz: I think to that point, the interactive process is going to be particularly important in this situation because these accommodations are probably pretty specific to the individual that you know, much like the rest of us, people who are neurodivergent may have different needs that need to be adjusted to them. So, I don't think a one size fits all approach is going to work here, right?
Claire Pariano: Yeah, and I think employers should consider traditional and peer mentoring to sustain employment for these individuals and really reach out to them to see what accommodations can be made to help them succeed.
Daniel Schwartz: So, as we're thinking about it, what would be the types of mistakes that employers might make when handling these requests?
Claire Pariano: Yeah, and because this is different from a physical impairment, as we touched on earlier, employers can often make the mistakes of dismissing these invisible disabilities. Or assuming the employee is simply being difficult. As we touched on earlier, it's different from a physical impairment, so it's not as always keen to the eye. You can't see it right away. Failing to engage in a robust interactive process, the employer must, must engage and identify effective accommodations for these individuals.
Daniel Schwartz: Yeah, I think on that point, the failure to engage in a robust, interactive process, I really can't emphasize that enough. And I think sometimes employers think, well - I've talked to them once, I should be good.
And really it has to be sort of a tennis match, right, going back and forth between that. So let me switch gears just for a second and talk about the FMLA. So, the Family and Medical Leave Act that might also apply to this situation as well, maybe to employees who need, let's say intermittent leave or therapy or treatment.
Claire Pariano: Exactly, yes, the FMLA or the Connecticut state equivalent covers intermittent leave for therapy or treatment related to neurological conditions that qualifies a serious health condition. Employers should obtain documentation for this leave, including oftentimes a certification from healthcare providers.
Daniel Schwartz: So that's sort of the basics, I suppose, on the legal obligations here. But we were also, I think talking with employers about trying to create a really inclusive workplace for those individuals. So, as they're thinking about that, how might they adjust their approach to this issue?
Claire Pariano: So, the legal compliance represents the minimum standard that an employer must take while in comparison to an inclusive practice, it extends beyond the legal requirements to create an environment where neurodivergent employees thrive.
So, we recommend that employers who are seeking to build a more inclusive environment may consider offer additional training sessions that dive deeper into the understanding of neurodiversity and its implications in the workforce.
Daniel Schwartz: So, let's think of a situation an employer hears from an employee and the employee reveals probably with a little bit of trepidation that they are on the spectrum. How does an employer sort of deal with that situation?
Claire Pariano: So, as with any other disability requests employers must treat all disability related information, even with neurodivergent individuals as confidential. So, this includes medical records and disclosure of these requests should be limited to those individuals who need to know, such as an employee, supervisor, or individuals in HR. And as always, we recommend that medical records relating to disabilities are kept in a separate medical file from a personnel file.
Daniel Schwartz: It's a great point to keep this information confidential, that just because someone's disclosed it to you doesn't give the employer the right to relay this to the workplace. And I think one of the worst things an employer could do is, hearing from an employee and then sending out an email going, ‘hey - Joan has autism and I just want everyone to know about it’. I think with all types of medical conditions, you want to treat it with some level of discretion there. So, you were talking about sort of medical records and documentation, so is there a type of medical documentation that an employer can legally request to verify a condition and what might cross the line into a privacy violation here?
Claire Pariano: So employers can request documentation. It must relate to the existence of a disability and the need for an accommodation. But employers should not demand the full medical records or detailed diagnostic information that really goes beyond the scope here and just another plug - employers should keep the medical records separate from all personnel file information.
Daniel Schwartz: Yeah, one of the other questions we sometimes get on neurodiversity in the workplace is managing performance. And obviously in the workplace, managing performance remains paramount, right? So, how should employers think about it here, where an employee might be struggling in some areas, but excelling in others?
Claire Pariano: So, employers should be certain to distinguish between an employee's essential and non-essential job functions, the focus should really be on essential job functions to determine whether or not they're struggling in certain areas, and review these to determine what reasonable accommodations can be made.
Daniel Schwartz: I mean, I think with the performance issues coming up, they're really going to present themselves in different situations, right?
Like some employees might need their performance requirements written out to them, like, need to know, ‘here's what you need to be doing’. Other employees are going to be fine. A conversation is fine. And I think as you mentioned before on some accommodations, you know, the accommodations for people with neurodiversity might involve written instructions. So that isn't the worst thing in the world, and frankly, it's probably a good practice to have anyways. You know, as we sort of wrap this up here, let's go back to sort of big picture of the legal risks that they face here. So, let's suppose they have, you know, sort of an attendance policy that is, you know, supposedly strictly construed. So, what types of legal risks are present here?
Claire Pariano: Similar to other claims brought under the ADA, employers may face disparate impact claims if facially neutral policies disproportionately affect neurodivergent employees. So, I think a good example is prohibiting the use of headphones in the workplace. As we mentioned, they might be more impacted by sounds, and these headphones help. Employers may also be subject to hostile work environment claims if neurodivergent employees face harassment within the workplace. Finally, employers should be aware of hiring practices that may screen out qualified neurodivergent candidates and consider accommodations to assist neurodivergent friendly interviews such as fewer interviewers in a single setting.
Daniel Schwartz: And one of the concerns I've heard recently is that with the rise of AI assisted interviews, where you know they may be looking for facial patterns of employees, you need to be aware that type of system could disproportionately impact those with autism who may not take those social cues that others get. So, it's a great point to be aware of on the hiring practices. So, great. Claire, I really appreciate you joining me for this episode. As always, we'd love to hear from you. If you have any questions that you would like to see addressed on a future podcast, love to hear from you. My email is dschwartz@goodwin.com. But otherwise, we will wrap up this episode and hope to see you again on the next podcast.
Host: Thank you for joining us on this episode of From Lawyer to Employer, a Shipman podcast. This podcast is produced and copyrighted by Shipman and Goodwin, LLP. All rights reserved.
The contents of this communication are intended for informational purposes only and are not intended or should not be construed as legal advice. This may be deemed advertising under certain state laws. Subscribe to our podcast on Spotify, apple Podcast, or wherever you listen. We hope you'll join us again.