Legal Updates

Neurodiversity Discrimination: Key Issues And Practical Solutions

Neurodiversity recognizes natural variations in how people think, learn, and process information. Managed well, neurodiversity can be a competitive strength; managed poorly, it drives legal risk around disability discrimination and the duty to make reasonable accommodations.

In recent years, employers have faced an increasing number of discrimination charges and lawsuits based on neurodivergent conditions, many of which have resulted in costly outcomes. As those cases underscore, it is critical that employers understand their responsibilities in this emerging legal arena.

Background

Under the Americans With Disabilities Act (“ADA”) and analogous state laws, employers must engage in a good‑faith, interactive process to identify reasonable accommodations for employees and applicants with disabilities.

This responsibility extends to many neurodivergent conditions that substantially limit major life activities, including autism, attention deficit hyperactivity disorder (“ADHD”), dyslexia, dyspraxia, and Tourette’s syndrome. Neurodivergent persons – estimated to comprise as much as 15–20 percent of the population – can excel in many fields, such as technology, analysis, and creative problem‑solving.

Reasonable accommodations for neurodivergent conditions may include measures such as flexible schedules, written instructions, time-management technology, clear communication protocols, noise‑canceling headphones, and structured breaks. For autism in particular, appropriate accommodations may include quiet workspaces, clear written instructions and checklists, predictable routines and advance notice of changes, sensory adjustments to lighting and noise, mentorship or job coaching, task modifications, and assistive technology.

Risk Landscape

Autism‑related ADA charges filed with the federal Equal Employment Opportunity Commission (“EEOC”) rose to 488 in FY 2023, up from 53 a decade earlier and only 14 in 2003. Between 2018 and 2024, the EEOC filed at least 12 ADA lawsuits involving workers with neurodiverse conditions, often alleging denials of accommodations or adverse actions based on diagnoses.

A number of workplace issues have driven these claims. In particular, as stigmas surrounding neurodivergent conditions have faded, employees – particularly younger workers – have been increasingly willing to identify themselves as neurodiverse and request accommodations.

Many employers, however, have not adapted their policies and practices to such requests. According to one survey, only about half of managers reported understanding the value of neurodiversity, and even fewer felt confident supporting neurodivergent colleagues. These lags can contribute to preventable misconduct and disciplinary escalations for the employees affected.

Additionally, during the COVID-19 pandemic, many neurodiverse employees benefited from remote or hybrid work policies, which gave them greater control over environmental factors. As employers have increasingly returned to in-office work requirements, this has created friction.

Case Examples

A few recent cases illustrate the risks employers face in connection with neurodiversity accommodation issues:
 

• A newly hired Subway employee with autism and ADHD asked for clear task instructions, redirection, and follow‑up from managers. After working four shifts without accommodation, he was fired, leading to an ADA claim and an eventual $30,000 settlement.

• In an interview, a Party City hiring manager told an autistic applicant who requested a job coach that the company had had “bad experiences” with applicants requiring job coaches. Party City ultimately agreed to pay $155,000 to resolve a discrimination claim brought on the applicant’s behalf.

• A Honda dealership paid $100,000 to resolve ADA claims after it discharged an employee who disclosed that she had ADHD and had been prescribed Adderall.

Tips For Employers

There are a number of steps employers can take to comply with their accommodation responsibilities and reduce the risk of neurodivergence-based ADA claims.
 

• Build neuroinclusive systems. Employers should update their anti-discrimination trainings to include neurodiversity, coach managers on how to have supportive conversations with neurodiverse employees and applicants, and review job advertisements and job descriptions for language that may appear to put up barriers against such workers.

• Follow the ADA interactive process. Employers should explore accommodation requests on an individualized basis and focus on essential functions and outcomes rather than neurotypical norms.

• Address recruitment and interviews. Employers should ensure that hiring managers recognize that some candidates may not conform to typical social cues, and emphasize to managers the need to avoid inappropriate medical inquiries or comments during interviews.

• Be flexible with in‑office work policies. Remote work is frequently requested by neurodivergent employees because it allows for greater environmental control. While remote work is not feasible for many positions, employers faced with such accommodation requests should evaluate them on an individualized basis, based on the essential functions and requirements of the position.

Conclusion

The legal trendline is clear: filings and enforcement attention on neurodiversity discrimination are rising, while the accommodation playbook is well‑understood and actionable. By embedding robust, individualized interactive processes, training managers, tailoring recruitment and performance-management systems, and documenting good‑faith accommodations, employers can reduce liability risks and unlock performance benefits. The alternative—denials, delays, or one‑size‑fits‑all practices—invites costly disputes and lost talent.

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Schwartz Hannum’s experienced employment attorneys can assist your organization in addressing neurodiversity accommodation and discrimination issues and complaints. Please feel free to reach out to us if we can help.