Neurodiversity In The Workplace

Requesting an accommodation is a protected act. You CAN NOT fire someone for it. "But, Julie, what if their request literally says they are limited in doing the functions of their job?" Yes, of course it does. That’s how it works. They have to show their disability-related limitations to show they qualify under the ADA. The also need to show limitations specifically around their essential functions to show how and why they need help. "But, Julie, if they can't do the functions of their job, they aren't a qualified employee." They are qualified if they can do the job "with or without accommodations". If they can't do their job without accommodations, and are asking for accommodations that will enable them to do their job, they are a qualified employee. That is the entire point of accommodations. “But, Julie, what if we can’t meet their needs?” You engage in the interactive process. You discuss with the employee. You ask questions. You go to askjan(dot)org. You ask me. You find out. “But, Julie, what if the limitations are so significant it is impossible?” It may seem impossible to you, but it may not be. You still engage in the interactive process. You don’t just assume and skip straight to termination. If you are using an accommodation request to justify termination, YOU ARE WRONG. If your response to a (legally protected) request for support is concluding that the employee can't do their job, YOU ARE WRONG. If your response to a disability disclosure is assuming the employee isn't fit for their position, YOU ARE WRONG. If you think limitation equals disqualification, YOU ARE WRONG. Sure, there are times disability-related limitations would disqualify someone from a job even with accommodations. That is not what we are talking about. We are talking about firing someone who has been doing the job, only after they disclose their disability or ask for an accommodation.

This case started with a pair of Skechers, and will end with a jury trial. A cocktail server at MGM National Harbor, Rebecca Lopez-Duprey, suffered from foot conditions—Achilles tendonitis and Equinus deformity—that made wearing heels painful and medically inadvisable. Her doctor recommended she wear flat, supportive shoes. Eventually, MGM granted her an ADA accommodation to do just that. Lopez-Duprey wore Skechers-style black shoes for over two years without issue. Then came a policy change. In late 2021, MGM issued a memo updating the dress code and specifying which shoes were allowed, even for employees with ADA accommodations. Skechers weren't on the approved list. The company disciplined Lopez-Duprey multiple times, including once for showing up to work in her doctor-recommended sneaker. She protested internally, and her doctor even submitted another note, this time stating she needed those shoes permanently. MGM terminated her shortly thereafter for violating its appearance standards. Lopez-Duprey sued for failure to accommodate under the ADA. Last week, the court denied MGM's motion for summary judgment, sending the case to trial. The court found disputed facts on: 👟 Whether the sneakers she wore were consistent with the original accommodation; 👟 Whether MGM appropriately modified or revoked the accommodation; 👟 Whether she followed proper steps to update the request; and 👟 Whether the final doctor's note arrived before or after her termination. Here's the takeaway for employers: Approving a disability accommodation isn't a one-and-done task. It's a living process. When policies change or medical needs shift, employers must revisit, re-evaluate, and, if needed, adjust the accommodation. That means documenting every step and communicating clearly. The ADA doesn't require perfection. But it does demand effort—a real, ongoing dialogue rooted in good faith that doesn't just pay lip service to the interactive process. Sometimes it's not about the shoes. It's about the steps you take.

Over the past several years, I've written several times about ongoing #COVID19 risks*, employers' responsibilities to protect employees' health, and how accomodating the health concerns of the immunocompromised, disabled and others are a vital #DEI consideration. I predicted that stringent Return to Office (#RTO) policies would end up in courtrooms to determine if working in an office is truly a vital job requirement and whether employers are accomodating the diversity of health risks people face. Fortune's article notes, "After seemingly having won the return-to-office wars, employers may be walking into a legal storm by enforcing rigid return-to-office (RTO) mandates... Rigid RTO policies are disproportionately impacting disabled employees, mothers, and older workers–and could even, in certain cases, breach the law." The Americans with Disabilities Act is over 30 years old, but it pertains very much to our current age of ever-evolving COVID variants and repeated reinfections. The ADA’s reasonable accommodation obligation includes “modifying workplace policies” and “might require an employer to waive certain eligibility requirements or otherwise modify its telework program for someone with a disability who needs to work at home.” We know people with comorbidities face additional risks from COVID infections, thus some with disabilites are filing complaints to fight for accomodations from overly strict RTO policies. And it's not just people with disablities filing claims. "Companies are facing a rise in mental health disability discrimination complaints from employees who view remote work as a reasonable accommodation. The Equal Employment Opportunity Commission (EEOC) has observed a 16% increase in such charges between 2021 and 2022, particularly for conditions like anxiety, depression, and post-traumatic stress syndrome." Then there's older workers, who say they are more likely to retire due to forced to RTO (and less likely to do so when offered remote options.) "If RTO policies disproportionately affect older employees, either by forcing them into early retirement or by making their work conditions less favorable compared to their younger counterparts, employers could face age discrimination claims." The pandemic demonstrated companies can operate with workers remote and that employees can be productive and engaged in remote or hybrid work arrangements. Overly stringent RTO demands fly in the face of those lessons learned, and that is causing a rise in claims and lawsuits. Smart employers will consider what sort of flexibility it can offer to all employees, accomodate individual employee's unique health needs, and strive to make offices and workplace as safe as possible from the continued surges of COVID infections. *See the first comment for a note on ongoing COVID risks. https://lnkd.in/gyxYmuRA

The newly filed federal complaint against Meta (Does 1–26 v. Meta Platforms, Inc., N.D. Cal.) highlights an immediate risk for talent leaders and technology buyers: the direct exposure created when automated employee monitoring functions independently of core HR data. The plaintiffs - twenty-six employees affected by the company's May mass layoff - allege that Meta bypassed traditional manager reviews, instead routing termination selections through a centralized set of automated decision systems. The systemic breakdown described is ultimately a data pipeline error. Meta’s tracking tools monitored output volume continuously - tracking keystrokes, active interface time, and the use of internal generative AI systems. However, the platform lacked a protocol to adjust or mask these metrics for periods of protected family leave, pregnancy, or disability accommodations. When employees were legitimately away from their desks, their telemetry footprint naturally dropped. The algorithm interpreted this missing data strictly as underperformance, automatically placing leave-takers on the layoff list. For HR executives, the most instructive aspect of this litigation is its legal basis. While emerging, AI-specific regulations are frequently discussed, the core of this case (and the majority of other recents ones) rests entirely on decades-old civil rights and labor laws: The FMLA and Title VII: The plaintiffs argue that using unadjusted activity gaps caused by statutory leave as a negative factor in a layoff constitutes direct interference and disparate impact discrimination. The ADA and PWFA: By failing to insulate workers on approved accommodations from automated ranking penalties, standard productivity metrics functioned as an unlawful proxy for disability. Newer automated-decision frameworks are cited primarily to show a failure to test these models. The actual liability is driven by yesterday's civil rights legislation applied to today's data pipelines. The takeaway is operational, not legalistic. Performance algorithms cannot operate in a silo. If you use automated selection tools, they must programmatically integrate with your HRIS. When an employee is on approved leave, the tracking system must automatically mask or adjust the evaluation window. Without this engineering bridge, automated workforce management is simply an uncalibrated liability.

What if the biggest barrier to neuroinclusive work isn’t people… but the way we’ve designed work itself? Across my work in applied workplace neuroscience, I’ve noticed a clear pattern. The countries making the greatest progress in neuroinclusion aren’t treating neurodiversity as a compliance issue or a collection of individual adjustments. They’re recognising it as a brain health, performance and leadership issue. Australia is one of the strongest examples. Rather than expecting neurodivergent employees to adapt to environments that overload their nervous systems, many Australian organisations are redesigning workplaces around how brains actually function. In this carousel, I explore six neuroscience-backed approaches that UK leaders can begin implementing now: Reduce sensory load to protect executive function. Communicate clearly using multiple formats to reduce cognitive overload. View flexible working as a self-regulation strategy, not simply an employee benefit. Design roles around cognitive strengths rather than deficits. Continually review workplaces through a brain-health lens. Build genuine neuroscience-informed leadership capability, not just awareness. These aren’t simply neurodiversity initiatives. They’re evidence-informed leadership practices that improve psychological safety, cognitive performance, wellbeing and innovation for everyone. When we understand how the nervous system responds to threat, uncertainty and safety, we stop asking people to “fit” work—and start designing work that allows people to thrive. Because when we design for how brains really work, neurodiversity becomes a strategic advantage rather than a challenge to be managed. I’d love to hear your thoughts. Which of these six approaches do you think would make the biggest difference in your organisation? #Neurodiversity #NeuroInclusion #WorkplaceNeuroscience #Leadership #HR #PeopleLeadership #PsychologicalSafety #Neurodivergent #ADHD #Autism #InclusiveLeadership#Innovation #VictoriaEnglishWellbeing

Most workplaces are already neurodiverse. The real question is whether people feel safe enough to show it. Behind “doing fine”, you’ll often find: • Masking to fit in • Exhaustion from constant self-monitoring • Brilliant ideas shared too late or not at all • Talent working at half capacity Neurodiversity isn’t a niche issue. Around 1 in 5 people think, process, communicate, or focus differently. In inclusive workplaces, people don’t have to spend energy pretending. That energy goes back into: ✔ clearer thinking ✔ better problem solving ✔ creativity ✔ loyalty ✔ wellbeing Inclusion isn’t about lowering standards. It’s about removing unnecessary barriers. Small shifts make a big difference: • Clear expectations • Written follow-ups • Flexible ways to communicate • Time to think, not just react • Strength-based roles When people don’t have to mask, they don’t just survive at work. They contribute fully. If this resonates, please like, comment or reshare. The more we normalise neurodiversity, the safer work becomes for everyone. #Neurodiversity #Inclusion #Belonging #PsychologicalSafety #InclusiveLeadership

Neurodiversity isn’t a trend. It’s reality. This week, during Neurodiversity Celebration Week, many organizations will talk about awareness. Awareness matters. But awareness alone doesn’t change workplaces. Design does. Neurodiversity reminds us that there is no single “right” way for a brain to work, process information, communicate, or solve problems. Some people think in patterns. Others in systems. Some process deeply and quietly. Others move quickly and externally. Different does not mean less capable. Often, it means capable in ways traditional workplaces were never designed to recognize. And the data tells an important story: • 1 in 5 people worldwide are neurodivergent (including ADHD, autism, dyslexia, dyspraxia, and more). • 85% of autistic adults are unemployed or underemployed, despite many having the skills employers say they need. • Companies that intentionally hire neurodivergent talent report productivity increases of up to 30% in certain roles. • Teams that include cognitive diversity consistently outperform more homogenous teams in innovation and problem solving. The real question for organizations is this: Are we asking people to fit into our systems — or are we designing systems where different kinds of thinking can thrive? Because when workplaces make room for neurodivergent talent, something powerful happens: • Innovation increases • Problem solving improves • Teams become stronger • And belonging becomes real, not just aspirational Neurodiversity isn’t about accommodation alone. It’s about recognizing the full spectrum of human intelligence. Different minds. Different approaches. Better outcomes. #NeurodiversityWeek #InclusionAndBelonging #WorkplaceInclusion #Leadership #FutureOfWork #Neurodiversity #Belonging

Employer HR Issue of the Day: An employee has been on medical leave for over 6 months. Every few weeks, a new doctor’s note arrives, extending the leave. There’s no clear return date, and the team is stretched thin. The employer is ready to move on. They called me, hoping to get the blessing to send a termination letter and deactivate the employee in the payroll system. Here’s what I told them: ⚠️ Proceed with caution! Even if the employee has exhausted their FMLA or state leave entitlement, that doesn’t mean you’re in the clear to terminate. You still have to consider your obligations under the Americans with Disabilities Act (ADA) (and in California, the Fair Employment and Housing Act (FEHA)), which require employers to provide reasonable accommodations. An extended leave can be considered a reasonable accommodation. What to consider: - Has the employee requested additional leave as a form of accommodation? - Have you engaged in the "interactive process" to determine what’s reasonable? - Is continued leave creating an undue hardship, and if so, can you support that with documentation? Before taking any action, document every step of your interactive process. Evaluate whether additional leave is truly unreasonable, or if you are just tired of waiting. Don’t terminate the employee just because “it’s been long enough,” as that mindset can lead to costly discrimination claims. Take the time to walk through a proper analysis with expert guidance (hi!), run it past an employment attorney, and make an informed decision from there.

Autism inclusion at work means reimagining how we design roles, teams, and workplaces so Autistic people can sustainably work. When organizations intentionally design for neurodiversity, through flexible environments, predictable structures, removing ambiguity, and multiple options for communication, Autistic employees report better mental health, higher job satisfaction, and stronger commitment to their roles. Disability and neurodiversity initiatives also benefit the wider workplace by supporting innovation and cognitive diversity. Autism acceptance in the workplace means assuming variability in sensory and cognitive styles and designing with that variability in mind. Practical examples include peer mentors to help new hires navigate unwritten norms, advance notice of schedule or role changes, written follow ups after meetings, sensory breaks, quieter workspace options, and flexibility in where and when work happens. For me, having more control over my sensory environment and the ability to chase my curiosity have made the biggest difference in my relationship to work. Many of the shifts that make workplaces more neuroinclusive are low cost, high impact changes that reduce burnout and unlock the strengths Autistic employees bring without asking us to sacrifice our health. #AutismAcceptance #AutismAtWork #Neurodiversity #NeuroinclusiveWorkplace #DisabilityInclusion #WorkplaceInclusion #InclusiveDesign #ActuallyAutistic #AutisticAdults #Neurodivergent #NeurodiversityInTheWorkplace #PsychologicalSafety

Your job applicant sorting software may be automated decision making that may be prohibited in the EU and may require a bunch of things like a #DPIA and an opt out in the US - even if a hiring counsellor is making the final hiring decision! A new decision from the - per new decision from the Supreme Administrative Court of Austria follows the footsteps of the Schufa decision. In this case the controller, the Public Employment Service in Austria, used an algorithm to calculate the degree of probability for jobseekers to be employed for a certain number of days, based on: (1) age group, (2) gender, (3) country group, (4) education, (5) health impairment, (6) care responsibilities, (7) occupational group, (8) career history and (9) the regional labor market situation and the duration of cases at the controller. Based on this, the algorithm divided jobseekers into the following three groups: (1) Service jobseekers with high labor market opportunities, (2) Care jobseekers with low labor market opportunities, (3) Consultancy jobseekers with medium labor market opportunities. The result was used as a starting point for counsellors to work with jobseekers to assess their potential and any obstacles in the labour market integration. The algorithm itself was not used for job placement, but only for targeted support and assistance, Per the court: 🔹 The algorithm decided on the allocation of jobseeker’s group and thus has a legal effect on the jobseekers concerned or similarly significantly affects them. 🔹 The fact that the final decision on the jobseeker’s group assignment lies with the counsellor, does not prevent the algorithm from being classified as an automated decision under Article 22(1) GDPR. 🔹 The instructions and trainings that were provided to ensure counsellors would not accept the algorithm’s results unquestioningly could not exclude the possibility that the algorithm is ultimately decisive for the allocation. Really important in the US as well since automated decisions that affect the prospect of employment are considered "legal or similarly significant effects" under (most if not all) US State Privacy Laws. #dataprivacy #dataprotection #privacyFOMO #AIprivacy photo by vectorjuice for Freepik https://lnkd.in/eerj7SgW