Neurodivergence in the Workplace: A Growing Reality for Employers
by Tyla A. Swinton and Lucia Mead
Recently, I spoke to a friend of mine who serves as in-house employment counsel for a research facility. As in-house counsel, attorneys have to weigh overall company interests against human resource (HR) considerations, along with potential legal risks. However, a shift in the understanding and perception of “neurodiversity” has brought another consideration to the forefront. Like my friend’s employer, HR departments across the country are now being called to evaluate their internal functions to determine whether they are equipped to support and accommodate neurodivergent employees and, importantly, remain compliant.[1]
This shift is not happening in a vacuum. The rise of social media discourse and community-building around neurodivergence has expanded public awareness and contributed to broader diagnostic criteria, which in turn has led to an increase in neurodivergent diagnoses. For example, an estimated 10-20% of individuals worldwide are neurodivergent, encompassing conditions such as Attention-Deficit/Hyperactivity Disorder (ADHD), autism spectrum disorder, dyslexia, dyspraxia, and Tourette syndrome.[2] Greater awareness and acceptance of neurodivergence have also led to a corresponding rise of workplace accommodation requests, a trend employers should continue to expect.
As these requests become more common and neurodivergence becomes more visible, the structural limitations within traditional HR systems are now exposed. Hiring practices that rely on subjective “culture fit,” unstructured interviews, or informal communication norms may unintentionally exclude qualified neurodivergent candidates. Beyond recruitment, similar misalignment appears in performance evaluation systems, supervisory practices, and promotion pathways.
Addressing these gaps requires more than awareness; it requires a pivot toward neuroinclusion, or the practice of creating environments that support individuals with diverse cognitive and neurological differences. A central component of that effort is the provision of reasonable workplace accommodations. Under the Americans with Disabilities Act (ADA), employers must provide such accommodations, unless doing so would impose an undue hardship on the employer or if the accommodation would prevent the employee from performing essential functions of the role.[3], [4] The ADA also requires employers to engage in an interactive process, making accommodation an ongoing and individualized legal obligation rather than a one-time adjustment. Equal Employment Opportunity Commission (EEOC) regulations further frame this requirement as an informal, individualized dialogue between employer and employee to identify limitations and potential reasonable accommodations.[5] Consistent with that framework, EEOC guidance cautions that a breakdown in this process may itself result in a failure to provide reasonable accommodation.[6]
For many employers, this is where the challenge of addressing neurodiversity becomes more complex. While HR teams are generally trained and experienced in ADA accommodations that are centered around physical disabilities, neurodivergent requests are more nuanced, as the disability is typically nonvisible. Unlike traditional requests, neurodivergent accommodation requests are tied to the structure of the work itself, specifically how information is relayed and social interactions. In practice, however, many effective accommodations for neurodivergent employees are neither complex nor costly. For example, employees with autism may require sensory adjustments, such as noise reduction or lighting alteration, written instructions, advance notice of changes, remote or hybrid work schedules, and clearly defined expectations.[7] Employees with ADHD may require predictable scheduling to reduce cognitive overload, intermittent breaks to sustain focus, structured task lists or checklists, and prioritization guidance from supervisors.[8]
From a compliance perspective, failure to properly evaluate or implement reasonable accommodations may expose employers to liability under the ADA and EEOC enforcement guidance, particularly where employers do not engage in a “good-faith” interactive process or apply accommodations inconsistently.[9] Employers must remove barriers to requesting accommodations and pay more attention to statements made by employees that can “trigger” the need for such accommodation. An employee expressing having difficulty in large group settings or meetings, for example, or stating that they are stressed or overwhelmed should start the interactive process under the ADA for an accommodation.
The takeaway is practical: employers that take a more structured, proactive approach will be in a stronger position to comply with the law and avoid disputes. Employers that fail to do so increase their likelihood of encountering issues reactively, in the form of complaints or litigation, where the costs, legal, financial, and operational, are significantly higher. Organizations that adapt are more likely to retain and support diverse talent, improve innovation and problem-solving capacity, reduce legal exposure under disability law, and build more sustainable workforce systems.[10] The ADA and EEOC guidance make clear that accommodations must be handled thoughtfully and on an individualized basis, and courts have shown little patience for employers that rely on rigid or inconsistent approaches.
Central to this effort is collaboration; HR must engage with employees through open communication focusing on individual needs and recognize that effective accommodations for neurodivergent employees may require flexibility and creativity.
[1] Neurodiversity refers to anyone who is not neurotypical. Neurodivergent in a nonmedical term used to describe people whose brains develop or work differently. See Cleveland Clinic “Neurodivergent”.
[2] Deloitte, Neurodiversity in the Workplace: A Hidden Source of Talent (2023), https://www2.deloitte.com/us/en/insights/topics/talent/neurodiversity-in-the-workplace.html.
[3] 42 U.S.C. § 12112(b)(5)(A) (2018)
[4] 29 C.F.R. § 1630.2(o)(1), (o)(2) (2024)
[5] 29 C.F.R. § 1630.2(o)(3) (2024).
[6] U.S. Equal Emp. Opportunity Comm’n, Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (2002), https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada.
[7] Job Accommodation Network, Accommodation and Compliance: Autism Spectrum, https://askjan.org/disabilities/Autism-Spectrum.cfm.
[8] Job Accommodation Network, Accommodation and Compliance: ADHD, https://askjan.org/disabilities/Attention-Deficit-Hyperactivity-Disorder-AD-HD.cfm.
[10] World Health Organization & International Labour Organization, Joint Policy Brief: Disability Inclusion in the Workplace (2021)
This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Associate Tyla A. Swinton who counsels clients on employment, workplace investigations, compliance counseling, litigation strategy, and diversity and inclusion initiatives. Ms. Swinton is admitted to practice law in New York.