chevron-down Created with Sketch Beta.
June 02, 2023

Including Neurodiversity is Key to More Inclusive Workplaces

Craig Leen

If your field is labor and employment law, there is a good chance you’ve been asked to provide counsel in developing Diversity, Equity and Inclusion (DEI) programs. DEI programs are extraordinarily important in helping promote important principles such as equal employment opportunity, pay equity, and inclusive workplaces, to name a few. They are also subject to legal limitations found in laws like Title VII, so legal advice related to DEI is necessary as well. One point that is not often raised about DEI programs is that they usually do not include any focus on disability. Indeed, according to the Harvard Business Review, only about 4% of DEI programs include disability. This is concerning as people with disabilities are significantly underrepresented in the workforce, facing low labor force participation rates, higher unemployment rates, and a material pay gap. Indeed, when looking at numbers from the Bureau of Labor Statistics, it becomes clear that individuals with disabilities are the largest source of underutilized skilled labor in the United States. This is why it is important to add the A for Accessibility to DEI, to help ensure that disability is included in DEI, and that individuals with disabilities are fully included in the workforce. Thankfully, the current federal guidance in this area establishes a federal commitment to DEIA, including Accessibility, through Executive Order 14035.

Taking this analysis one step further, it is even more infrequent for DEI programs to include neurodiversity. What is neurodiversity, you may ask? The best definition I’ve seen is provided by the Neurodiversity in the Workplace resource from the Employer Assistance and Resource Network on Disability Inclusion (EARN), a resource provided by the U.S. Department of Labor. Here is what EARN says: “Neurodiversity describes the natural way that people think, learn, perceive the world, interact and process Including information differently. Different ways of thinking, learning, perceiving the world and interacting with others helps organizations thrive, as a workforce that includes people with a variety of perspectives, backgrounds and experiences can improve creativity, innovation and problem solving. Neurodivergent people include autistic people; people with attention deficit hyperactivity disorder (ADHD), post-traumatic stress disorder (PTSD) and other mental health conditions; and people with learning disabilities. This group also includes people with other intellectual and developmental disabilities and a wide range of conditions that can shape thinking, learning and perceiving the world. In contrast, people whose brains and nervous systems function ‘typically’ are known as neurotypical people. A workplace that supports all types of ways to think, learn, interact and perceive the world supports neurodiversity.”

As indicated by EARN, approximately 15-20% of the US population is neurodivergent. That is literally tens of millions of people. Including neurodiversity in DEIA helps include these many individuals in DEIA, also helping ensure that many non-apparent disabilities that are often not spoken about in the workplace are no longer stigmatized. This creates an environment where neurodivergent employees may feel more comfortable seeking supports and accommodations without fear of retaliation, helping increase productivity as well as enhancing inclusion and belonging.

In terms of the legal profession in particular, it is notable that only 1.41% of lawyers at law firms self-identify as having a disability (according to the 2022 NALP Report on Diversity in U.S. Law Firms). Yet a 2016 study from the Journal of Addiction Medicine indicated that far higher numbers (well over a majority of attorneys in total) reported having ADHD or mental health conditions such as anxiety, depression, panic disorder, and bipolar disorder, all of which are considered to be disabilities within the definition of neurodivergence.

These numbers show that many attorneys with non-apparent disabilities are not disclosing them. The point is that as much as any workplace, law firms should strongly consider Neurodiversity in the Workplace programs. These programs can help encourage attorneys to be more open to self-identifying and seeking support and accommodations that will help them thrive in the workplace and in life. I would like to conclude with a personal anecdote. My 18-year old daughter Alex is profoundly autistic with an intellectual disability, and she often uses a wheelchair in public places. Some things she loves are the outdoors, restaurants, music, Disney movies, and participating as a Duo Team with me in the Marine Corps Marathon (which is such an incredibly accessible marathon and we’ll be competing together for the third time this year!). When we are going to visit a place, we often check online to see if they have a Neurodiversity or Autism Inclusion program, as well as whether it is an Accessible space where she will feel included and welcomed. We’ve done this at movie theaters, restaurants, and even a family cruise vacation. It is amazing how much you can learn about a place, company, or law firm from its website, and from whether it has a DEIA program that includes disability and neurodiversity. Take the important steps to have a DEI program, to include the A, and to include neurodiversity, and let your workforce know you are dedicated to having a most welcoming workplace for everyone. 

Craig Leen

Partner, K&L Gates

Craig Leen is a partner at K&L Gates in the Labor, Employment and Workplace Safety practice group, practicing out of its DC office. He served formerly as Director of the Office of Federal Contract Compliance Programs at the U.S. Department of Labor, and previously as City Attorney of the City of Coral Gables. Craig is a Professor of Government Lawyering and Professorial Lecturer in Law at George Washington Law School and serves on various boards and committees, including in the disability inclusion area, and as Chair of the Civil and Human Rights Committee of the Bar Association of the District of Columbia

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.