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.”