neurodivergent workers, top neurodiversity speaker

How the Law Supports a Neurodiverse Workplace

There are countless reasons why it’s a good idea to create more neurodivergent-friendly workplaces. Research has proven that a neurodiverse workforce increases productivity and gives businesses a creative cutting edge by harnessing the entire spectrum of human thought processing.

There is, however, one really important factor that a lot of people in the neurodiversity movement tend to skip over.

The law.

Obviously, neurodiversity initiatives implemented out of awareness and a spirit of inclusion are ideal. But the fact of the matter is that if you don’t have them, you may be unintentionally violating your neurodivergent employee’s rights under the Americans with Disabilities Act (ADA) of 1990. And if you happen to be a company that works with the federal government through contracts, you are also held to the requirements laid out in the recently added (2014) Section 503 of the Rehabilitation Act of 1973. More recently, President Biden issued Executive Order 14035, laying out ways for increasing diversity, equity, inclusion, and accessibility (often referred to by the acronym DEIA), for those who work for the federal government itself.

So what do these laws say about legal accommodations for neurodivergent workers? What legal requirements exist to encourage neurodiverse workplaces?

Protecting Neurodivergent Workers: What does the Law Say?

I really don’t like complicated legalese. But, some things are worth knowing.

Section 503 states, “… the party contracting with the United States shall take affirmative action to employ and advance in employment qualified individuals with disabilities.

The intention of this law is to help close the gap between employed and unemployed disabled workers. For the businesses that fall under the domain of section 503, they should have a stated goal for 7% of their workforce to fall into the “disabled” category, and a verified affirmative action system in place to help meet this goal. Compliance with this law is necessary if a company wants to get a contract with the federal government.

The ADA, which is broader and serves as a protection for all disabled Americans, is not quite so easy to quote. To keep it brief, it basically states that Americans with disabilities have a right to “reasonable accommodations,” not only to do their job, but also to the interview process to get that job, and to “enjoy equal benefits and privileges of employment.”

But wait a minute… I feel like there is something here that needs to be clarified before we go any further.

Neurodivergent people are not necessarily disabled, right? Neurodivergence isn’t a disability. I have said it time and again.

But, and this is a very big BUT…

It cannot be denied that neurodivergent conditions create certain difficulties for those trying to make their way as independent adults in a neurotypical world. This is especially true when trying to hold down fulfilling employment. This is why the protection of the ADA is so important to the neurodivergent community.

For legal reasons, the ADA defines a disabled person as someone who:

  • “Has a physical or mental impairment that substantially limits one or more major life activities;”
  • “Has a record of such an impairment; or”
  • “Is regarded as having such an impairment.”

Under the law, neurodivergence may be considered a disability because it falls under the category of “mental impairment.” Divergent thinkers, depending on their circumstances, are protected by the ADA and have the right to “reasonable accommodations.”

Universal Accommodations: Be Compliant with the Law through “Accommodations” for Everyone

I have spoken to many business leaders who balk at the idea of implementing a “Neurodiversity Inclusion Plan”. They immediately see red tape, paperwork, and a reworking of their entire HR system. There is an unfortunate misconception that welcoming and accommodating neurodivergent employees is complicated.

I am happy to tell you that this is not true.

There is one simple and single-handed way to make sure your company is in complete compliance with all the laws protecting neurodivergent workers: create a company culture (and the policies to support it) where accommodations once reserved for certain individuals are universal. I like to call this Dynamic Workplace Design.

Neurodiversity initiatives should have the goal of making every individual worker feel safe, accepted, and supported in their work environment.

If you are going to offer noise-canceling headphones for one worker, why not make them available for everyone?

If you are going to create workspaces that limit sensory stimulation for sensitive individuals, ask yourself if it is possible to extend that option to any employee that may benefit from that kind of workspace.

This being said, if a neurodivergent worker does need to request a specific accommodation, they have a right to do so under the ADA. This requires them to disclose their condition. The employer must authorize the requested accommodation unless it would create unreasonable hardship for the company. In that case, it is recommended that an alternative arrangement be made that both meets the employee’s needs and is within the reasonable capabilities of the company.

The thing is, most neurodivergent workers rarely choose to reveal their divergent condition. This is especially true in the workplace, where stigma, misunderstandings, and prejudice against divergent thinkers are particularly common and have dire consequences. It may only be when problems arise, and an employee feels backed into a corner, that they decide to reveal their diagnosis and ask for accommodations.

At this point, there may be conflict between the worker and management. This could lead to allegations of discrimination and potential legal actions.

Complicated situations like these can be avoided by intentionally creating a company culture that values neurodiversity in both words and actions. Universal “accommodations” are an easy way to avoid red tape, legal complications, and unnecessary paperwork by making sure your entire workforce feels supported and empowered.

Self-Disclosure: Why it’s Important for Compliance with the ADA and Section 503

One of the fundamental pillars of the ADA and Section 530 is confidentiality. All workers who disclose their neurodivergent condition in order to request accommodations or participate in affirmative action type hiring programs must be able to trust that their medical information will be held in strict confidence.

There are countless reasons why divergent thinkers may opt to never self-disclose their neurodivergent condition. One of these is the fear of being called out publicly for their “differences” and held up as an “example” of the company’s neurodiversity initiatives. This can be humiliating. For those who have carried the weight of a stigma-laden label around for their entire school lives, the workplace can serve as an opportunity to leave that baggage behind. Many divergent thinkers prefer to stay in the shadows, mask, and pass as neurotypical to the best of their ability.

When workers refuse to self-disclose their condition, it can create some potential problems. Companies may struggle to meet that 7% goal as laid out by Section 503. Without self-disclosure, there is no way to measure the success of neurodiversity initiatives. This makes it difficult to monitor and track progress when it comes to an organization’s DEIA programs.

How can a company promote self-disclosure by neurodivergent workers?

  • Have clearly defined policies that respect absolute confidentiality.
  • Promote a company culture free of bullying, stigma, or shame surrounding accommodations and neurodivergence.
  • Offer accommodations to all, through Dynamic Workplace Design, without the requirement of self-disclosure.
  • When on-boarding new employees, encourage them to voice their needs early on and educate them about the procedures and policies surrounding voluntary self-disclosure and accommodation requests.
  • Appoint a dedicated accommodations officer, allowing employees to voice their needs to someone other than their immediate supervisor or manager.

Self-disclosure by neurodivergent workers benefits businesses when it comes to meeting diversity and inclusion targets. And if complying with Section 503, it’s required by law. So why not create a work environment where divergent thinkers feel safe, supported, and inspired to reveal a very private part of their identity.

Best Practices to Protect the Rights of Neurodivergent Workers

In addition to all the steps I outlined above, there are some complementary actions that can be taken to guarantee compliance with the law while going above and beyond to create a neurodivergent-friendly workplace.

  1. Conduct an annual internal audit to determine the success of your neurodiversity initiatives. Is your business in compliance with its own policies?
  2. Reach out to state and local advocacy organizations. How can they help you create a more neurodiverse workplace?
  3. Review for pay gaps. Are your neurodivergent workers earning less than their neurotypical counterparts?
  4. Create an employee resource group made up of neurodivergent workers and allies to promote inclusion, equality, and advocacy in the workplace.
  5. Take advantage of public resources such as JAN (Job Accommodation Network) and EARN (Employer Assistance and Resource Network on Disability Inclusion) when you need assistance or advice on accommodations or legal matters.

Protecting the Rights of All Workers

Slowly but surely, as our understanding of the human mind evolves, society is learning to leave harmful stereotypes in the past. Understanding is beginning to replace stigma. Empathy is overtaking judgment. But it is still an imperfect world, and the protections provided by the ADA and Section 503 continue to be necessary to protect the rights of workers, especially those with seemingly invisible disabilities.

Where Dynamic Workplace Design and universal accommodations are a reality, the law becomes an afterthought. Legal compliance is a natural consequence of a work environment and company culture organized to respect the unique needs of every employee.

Resources and Recommended Reading

Leen, Craig E. Neurodiversity and the Law: A Beginner’s Guide to Workplace Compliance. A course offered by Lawline, Production Date, Dec. 13, 2021. Retrieved April 5, 2022 from <https://www.lawline.com/course-center/neurodiversity-and-the-law-a-beginners-guide-to-workplace-compliance-2/on-demand>

Neurodiversity and Psychological Safety at Work

Neurodiversity Definition

Neurodiversity: this term refers to a general diversity of minds. It includes people who are neurotypical and neurodivergent. When I talk about promoting neurodiversity in the workplace, for example, I am referring to creating a diverse workforce representative of the broad spectrum that exists when it comes to ways of thinking, processing information, communication, and learning. Some employees may be “normal” or neurotypical while others may have ADHD, Dyslexia, Autism, or trauma impacted ways of thinking. I am not referring to any particular label or diagnosis, but rather, the concept of an environment where a diversity of minds coexist.

Neurodiverse: This word is pretty much the same as neurodiversity, but should be used as an adjective. You can say, for example, that your workplace is neurodiverse.

Be careful though, because you should never describe a person as being neurodiverse. Individual people should be described as neurodivergent.

Neurodivergent: This word describes an individual whose way of thinking falls outside of society’s defined version of normal. Oftentimes you will see it abbreviated as ND.

Many times, neurodivergent people will have a diagnosis or label you may recognize, like autism, dyslexia, or ADHD. But neurodivergent people are also those with epilepsy, different kinds of brain trauma, or simply a unique way of thinking that may not have a specific diagnosis.


Photo by Tingey Injury Law Firm on Unsplash


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