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With offices in Cleveland, Cincinnati, Columbus, Toledo and Youngstown, Ohio, as well as offices in Detroit, Michigan, Raleigh, North Carolina, and Louisville, Kentucky, the employment lawyers at Spitz, The Employee’s Law Firm, are experienced at fighting neurodivergence discrimination.
To combat discrimination against disabled Americans, Congress enacted the Americans with Disabilities Act (“ADA”). The ADA prohibits workplace harassment and employment discrimination based on an individual’s neurodivergent condition, as well as employer retaliation against employes who report or complain about discrimination against those who are neurodivergent. This means that your boss, manager, or supervisor cannot make fun of you, demote you, or wrongfully fire you because you are neurodivergent or perceived to be neurodivergent.
Many employees do not fully understand if they are covered by the ADA, and if so, what their neurodivergence discrimination rights are. The ADA requires that employers make reasonable accommodations to the known physical or mental limitations of employees with neurodivergent conditions or perceived neurodivergence. Under the ADA, a reasonable accommodation may include the elimination or modification of a nonessential job duty or the transfer of a nonessential job duty to another employee or coworker.
What is Neurodiversity and Neurodivergence?
Neurodiversity is the concept that recognizes and embraces the natural variation in the human brain and that no two individuals think, process information, learn, interact, behave, or perceive the world the same. Neurodiversity emphasizes the need to move away from the view that neurological conditions are primarily negative or problematic. Instead, neurodiversity promotes the idea that neurological conditions are simply normal variations in the human brain rather than disorders or deficits.
Neurodivergence refers to the condition or state of having a neurological difference or being outside of what is considered neurotypical. Neurotypical refers to the variation in the human brain that falls within the norm. Neurodivergence is not inherently negative or indicative of a disorder. Neurodivergent individuals have unique perspectives, strengths, and challenges that can contribute to the diversity and richness of the human experience. About 15 to 20 percent of the United States’ population is neurodivergent. It is important to treat neurodivergent individuals with respect and to provide them with reasonable accommodations when necessary to thrive in the workplace.
What are considered neurodivergent conditions?
Neurodivergence encompasses a range of conditions, including but not limited to autism spectrum disorder (ASD), attention deficit hyperactivity disorder (ADHD), dyslexia, dyspraxia, Tourette syndrome, bipolar disorder, obsessive-compulsive disorder (OCD), social anxiety, and schizophrenia.
The Steps of a Neurodivergence Discrimination Claim
The first issue is always whether you work for a covered employer. Your employer is only bound by the ADA if it has 15 or more employees but is covered under Ohio law if there are only four or more employees.
One of the biggest and most significant changes to the ADA was the inclusion of employees that the employer regards as disabled and/or neurodivergent. This is by far the easiest way to establish a claim.
As a result, you can be covered under the ADA if you fall into any of these categories: (a) you have a physical or mental impairment (i.e., a neurodivergent condition) that substantially limits your major life activities; (b) you have a neurodivergent condition that may or may not substantially limit your major life activities, but your employer treats you as if you do; (c) you have a neurodivergent condition that substantially limits major life activities only as a result of the attitudes of others towards your neurodivergent condition, or (d) you do not have a neurodivergent condition that substantially limits your major life activities, but your employer treats you as if you do.
To qualify as a neurodivergent condition that limits your major life activities, the neurodivergent condition must prohibit or significantly restrict your ability to perform activities such as caring for yourself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working, sitting, standing, lifting, thinking, concentrating, and interacting with others.
Regarding the ability to work, your neurodivergent condition substantially limits your ability to work if it prevents or significantly restricts you from performing a class of jobs or a broad range of jobs in various classes as opposed to your specific job, which you still need to be able to perform with some accommodations.
When Should You Suspect Discrimination?
If you find yourself saying or thinking one of the following about your job or employer, you could have a neurodivergence discrimination claim for damages:
- I was fired today because of my ADHD.
- My supervisor teases and harasses me about my social anxiety.
- My boss makes fun of me because I have ASD.
- I get harassed because my manager and supervisor think that I have dyslexia even thought I don’t.
- My manager makes employment decisions based on my ASD.
- My job will not hire other bipolar workers.
- My boss pays me less than neurotypical employees with less skill and/or less experience.
- I want to sue my company for employment discrimination at work.
- My supervisor gave me bad reviews that I don’t deserve and then fired me because of my ADHD.
- My boss said he will not waste time training OCD employees because we can’t do the job anyway.
- My job will not accommodate my dyslexia.
- My employer will not give me an easy accommodation to help me do my job.
- My boss replaced neurodivergent workers with neurotypical employees.
Frequently Asked Questions Around Neurodivergence Discrimination
When someone suspects their neurodivergence was the reason they were rejected from a job, fired or put on a reduced schedule, there are many questions that arise including:
Are neurodivergent individuals protected under the ADA?
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.
Under the ADA, what is a “reasonable accommodation”? What does my company have to do to help me do my job if I am neurodivergent?
“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.
How do I know what are the essential functions of my job?
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.
Does my company have to make a reasonable accommodation to allow me to do my job with my neurodivergence?
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.
Does my employer have to give me the accommodation that I ask for?
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.
What Accommodations Can Be Made in The Workplace for Those with Neurodivergent Conditions?
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.
What accommodations can be made in the workplace by my employer for my ADHD?
- 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.
What accommodations can be made in the workplace by my employer for my ASD?
- 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.
What accommodations can be made in the workplace by my employer for my dyslexia?
- 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.
What accommodations can be made in the workplace by my employer for my social anxiety?
- 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.
What if my company will not work with me to identify a compromise workplace accommodation for my neurodivergence?
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.
Can I be fired or denied a position because my neurodivergent condition prevents me from doing smaller parts of the job?
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.
What types of questions can an interviewer ask a neurodivergent applicant? Can I be asked about my neurodivergent condition during an interview?
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.
Can a job that I am applying for make me undergo medical examinations for my neurodivergent condition?
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.
I was fired because of my neurodivergent condition; can I sue? Do I have a claim for neurodivergence discrimination or wrongful termination?
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.
Do you have more questions about neurodivergence discrimination at your job? Talk to an attorney today.
To Start Exploring Your Options, Make Sure to Call the Right Attorney™
If you have a neurodivergent condition or believe that you have been wrongfully harassed or discriminated against in violation of the ADA, please contact Spitz, The Employee’s Law Firm. We are very experienced in neurodivergence discrimination cases, and we will use the ADA, as well as other federal and Ohio statutes to help you protect your rights. If you think your ADA rights have been violated or that your employer may be discriminating against you, then call the right attorney today.
Because we know that many clients are not able to afford the costs of litigation upfront, we take on more cases on a contingency fee basis than most firms. Contingency fee agreements mean that the client need not pay any fee for legal services unless and until our employment attorneys recover money and/or results on your claim.