Staying on solid legal ground when seeking brain diversity in the workforce

The benefits of diversity in the workplace are nearly universally touted. Human resources professionals are eager to assemble teams representing a variety of races, ethnicities, genders, and ages. But now another kind of diversity is gaining recruiters’ attention: brain diversity. 

A December 2014 article on the Fortune website reports that companies are beginning to seek out candidates with conditions such as autism, attention deficit hyperactivity disorder (ADHD), and dyslexia for jobs that are particularly well-suited to the abilities and strengths people with those conditions often exhibit. For example, people with ADHD often excel at jobs requiring energetic, creative individuals, and people with autism often excel at detail-oriented jobs dealing with large amounts of data.

Author and leader in the neurodiversity movement John Elder Robison, a neurodiversity scholar-in-residence at The College of William & Mary, expects HR to be giving increasing thought to dealing with and capitalizing on brain differences in the years to come.

“Neurodiversity, from the standpoint of a human resources department, is poised to be the next civil rights frontier that will have to be dealt with,” Robison was quoted as saying in the Fortune article.

ADA concerns

Employers may want to recruit for neurodiversity, but the task can get tricky. They can hope a diverse set of candidates will apply for openings, but they can’t ask an applicant if he or she has a particular condition. They can carefully interview to assess skills and cultural fit, but those with brain differences don’t always come over well in interviews and therefore may not effectively communicate what kind of employees they can be.

So recruiting and hiring for brain diversity requires extra planning from HR and careful interviewing to avoid unlawful practices.

“Probably the major legal hazard for employers actively seeking neurodiversity is for the employers to make medical inquiries of job applicants or employees in an attempt to discern whether the person has a brain difference that would enable that person to better perform the specific job tasks,” says Jonathan R. Mook, a partner at the DiMuroGinsberg, PC law firm in Alexandria, Virginia.

Under the federal Americans with Disabilities Act (ADA), employers are limited in when they may make medical inquiries of applicants and employees. “Employers who are too nosy about asking employees about their being diagnosed with autism, ADHD, dyslexia, etc. are engaging in conduct that may well be unlawful under the ADA,” Mook says.

The law allows employers to make medical inquiries or require medical examinations after making a conditional offer of employment, “but I certainly would counsel against an employer having job applicants with conditional offers of employment undergo a neurological exam to determine whether or not they have brain differences that could enable them to better perform—or potentially not perform—a job,” Mook says.

When employers are dealing with the downside to someone’s brain difference, such as a problem communicating and working with coworkers, the employer “should deal with the problem in a concrete fashion” Mook says, rather than sending the employee to a neurologist to determine whether the employee has autism or some other condition, since such an action would violate the ADA.

So interviewers need to be trained on the do’s and don’ts included in the ADA when seeking neurodiversity, but the law doesn’t prohibit employers from reaching out to people with certain conditions. While employers likely wouldn’t be tempted to run an advertisement for a demanding, detail-oriented position by saying, “only the autistic need apply,” the law doesn’t stop them from working with advocacy groups for the autistic or those with other differences to increase the likelihood of attracting applicants.

“An employer certainly can reach out to various advocacy groups for persons with disabilities, including those with mental disabilities, to increase the applicant pool,” Mook says, adding that Section 503 of the Rehabilitation Act now requires federal contractors to have a goal of having 7 percent of their workforce made up of individuals with disabilities.

Recruiting challenges

Employers trying to recruit people with autism and other conditions meeting the definition of disability under the ADA don’t have to worry about “reverse discrimination” claims when candidates without disabilities are passed over in favor of someone with a brain difference, but employers must be careful not to disclose or reveal to other employees someone’s neurological condition.

“I believe it is best if HR focuses on whether an individual, given that person’s skills and attributes, can perform the job, rather than focusing on whether the person has some type of neurological difference,” Mook says.

Certain conditions complicate the hiring process because a candidate’s condition may make his or her skills or abilities difficult to determine in a typical job interview. The Fortune article mentions that hiring managers at Freddie Mac, one of the employers actively seeking neurodiversity, were coached to be open to adapting screening practices “so autistic candidates could shine.”

Mook has no problem with that strategy, but “the focus should be on being open to adapting screening practices—not on whether or not the individual has autism or another type of brain disorder,” he says. “Applicants should not be categorized by what an employer perceives to be their neurological condition. An employer will get into trouble by viewing applicant John Jones as the ‘autistic applicant.’ That’s the type of stereotyping that the ADA was meant to combat.”

• Tammy Binford
  Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR Web and print publications. In addition, she writes for Diversity Insight, which can be found on HRHero.com.