By EmilyBartekoske, Esq.

SouthLaw,P.C. *

USFN Member (IA, KS, MO, NE)

            Most people, myself included, when asked to think about integrating topics of diversity, equity, and inclusion into our workplaces immediately go to a handful of areas: race, gender, physical disability, sexuality, and sexual orientation. In fact, until I was presented with the opportunity to write this article, I can say that I had never given much thought to applying diversity, equity, and inclusion efforts in the workplace to the way people think. That realization came as a surprise, considering that I am a neurodivergent person.

            So what does it mean to be neurodivergent? Neurodivergent is an umbrella term first coined in the 1980’s that embraces the natural range of variation in human brain function and processing.  Essentially, neurodivergent individuals think and process information differently than the average, or neurotypical, person. People are neurodivergent if they have certain developmental, intellectual, learning, or mental health disabilities. Examples of well-known neurodiverse conditions include autism spectrum disorders, dyslexia, dyspraxia, and attention deficit hyperactivity disorder (ADHD).  Some other conditions that can sometimes cause people to be neurodivergent are Tourette syndrome, post-traumatic stress disorder, schizophrenia, and depression.

            While the vast majority of people in corporate America and in the legal profession are neurotypical, the percentages of neurodivergent employees have been increasing. In fact, a 2016 study from the Hazelden Betty Ford Clinic and American Bar Association found that 28% of lawyers suffer from depression, 19% suffer from anxiety, and 12.5% have ADHD.  Additionally, experts typically agree that the number of professionals who are neurodivergent is vastly underreported, as many professionals choose not to disclose their conditions due to fear of reprisal at work or fear of being seen as “weak” or “dumb.” Legally, the conditions that cause neurodivergence are considered disabilities, and thus, affected employees are protected under the Americans with Disabilities Act.

            While there are obviously many conditions that fall under the umbrella of neurodiversity, I want to focus mostly on ADHD, as is it one of the most common conditions that we are likely to see in our neurodiverse employees and coworkers. Furthermore, it’s one of the conditions I am most familiar with, having been diagnosed with ADHD in 2014.

            Let’s talk about what it means to be a neurodivergent person with ADHD in the workplace. First, we must dismiss the stereotype that all people with ADHD are hyper-active and disruptive. While that is one way for ADHD to present in people, there is a second way that ADHD can present which is best summed up as inattentiveness. This includes symptoms such as struggling to pay attention, difficulties with organization, forgetfulness, and being easily distracted. At the core of both presentations of ADHD are difficulties with executive function.

             Executive function is a term used to describe a group of skills that enable humans to plan, focus attention, remember, execute tasks, and multitask. While all of us struggle with these skills sometimes, people with ADHD struggle with these issues daily.  When a neurotypical person is given a newly assigned project at work, they typically will jump right in and get to work, moving fairly easily toward the final product. When a person with ADHD is given a new project, they will often feel paralyzed and unsure of where to begin. They struggle to conceptualize how long things will take, what steps are involved, what outcomes may happen, or how to even imagine what the final product will look like.  The overwhelming uncertainties can be debilitating and can make it impossible to even start the task at hand.  As a result, people with ADHD can be branded as lazy, procrastinators, and even incompetent.  Many professionals with ADHD try to hide their struggles and appear "normal" to avoid such labels, even though doing so creates internal stress, anxiety, and fears of their struggles being discovered.

What is important for both neurodivergent people and employers to understand is that in many ways, people who are neurodivergent actually can be some of the most valuable employees and assets a business can have. Studies have repeatedly shown that as a group, neurodivergent people tend to be diligent, loyal, detail-oriented, and creative problem solvers. The fact that they think differently than most other employees allows them to identify issues that typically go unnoticed. Some benefits that neurodivergent employees can bring to their careers are:

·        Attention to detail: Neurodiverse people excel at zeroing in on details that often go overlooked by others. This can mean finding additional information in documents that might otherwise be missed, or noticing patterns in data that were previously unnoticed.

·        Focus: Struggles to focus and avoid distractions are common for employees with ADHD. However, when someone with ADHD is working with a project or subject matter that interests them, they have the tendency to ‘hyperfocus.’ This can translate to them having a highly focused attention on what they’re doing for a long period of time without being distracted by other things happening around them.

·        Creativity: Studies consistently show that neurodivergent people are more creative on average than neurotypical people. When executive function is working at its best it is difficult to slow down, let thoughts wander freely, and really think about the process. Since neurodivergent people have lower executive function, they are more likely to engage in creative problem-solving and thinking outside of the box.

·        Work well under pressure: Neurodivergent people, especially those with ADHD, are used to completing tasks at the last minute because their executive function often doesn’t allow them to start a task until it absolutely has to be done. While this means that these employees won’t often be handing in projects early, it also means that when there is a crisis or a deadline that would make most people feel frantic, neurodivergent people often are calm and collected in those moments and have the ability to work quickly and efficiently.

With each of these benefits, there of course are potential downfalls. To avoid these, employers should be proactive about communicating with neurodivergent employees and providing accommodations to help these employees succeed. While there is no “one size fits all” when it comes to accommodations, implementing and allowing some simple, common things could make a big difference in the performance of neurodivergent employees. Some examples of accommodations include:

·        Flexible working arrangements: Sometimes an office setting is too distracting for neurodivergent people. Allowing employees to work from home or in their optimal environment will allow them to focus better on the work they are doing.

·        Sensory friendly environments: Many neurodivergent people also are prone to sensory overload. Things like background noise from HVAC systems or the brightness of fluorescent lighting can be very distracting. To accommodate this, employers should try to ensure workplaces are sensory friendly by using neutral colors, soft lighting, and ensuring regular maintenance of mechanical systems in the office.

·        Allowing use of headphones to minimize distractions.

·        Providing blocks of uninterrupted work time: Neurodivergent employees often have trouble getting back on track when they are interrupted in the middle of a task. Providing set times for work with no interruptions from coworkers or phone calls allows employees to work more efficiently.

·        Allow use of fidget devices: Using things such as fidget spinners, stress balls, or similar tools allow neurodivergent people to focus the hyperactive areas of their brains on the device so that the rest of their focus can be on their work.

While this list is far from exhaustive, it is a good place to start for employers who want to create a work environment that is welcoming and inclusive of its neurodivergent employees. In a society that is increasingly valuing diversity and a workforce that is increasingly valuing individuality, right now is the time for employers to be intentional about considering neurodiversity in their business plans and recruitment efforts.

@Copyright 2022

April e-Update

by Marcy Ford
Trott Law, P.C.
USFN Member (MI, MN)

Unconscious biases, also known as implicit biases, are the underlying attitudes and stereotypes that people unconsciously attribute to another person or group of people that affect how they understand and engage with a person or group. Unconscious bias is different than structural or system racism, but it is just as damaging in discriminating against a person or group. It may be even more damaging when you consider that unconscious bias is hard to prove, difficult to measure, and many people are unwilling to acknowledge that they have a bias.

Just like a lawyer (that may be a bias!), I need to deliver a waiver clause. I am a white, middle-aged woman writing an article about a topic which is important to me, but one where I am absolutely part of the problem. I have biases, some that I acknowledge and am okay with, such as my bias in believing that Michigan Wolverine fans are far superior to Ohio State Fans.  I have some biases that I acknowledge, and I am working on, and some that I am not even aware of – at least until one of my children points out that I have put my foot in it. While later in my life than I would wish, I have been working for about two years with a small group to actively become aware of my biases, take ownership of them, and then work to change those that impact my work, my social network, my relationships, and all those that happen to be part of all of those groups. It is a work in progress that I expect will never end because these biases are ingrained, built over several generations, passed down like grandma’s pierogi recipe, and rarely acknowledged or discussed.

While unconscious bias in your personal life may lead to a less interesting existence, unconscious bias in the workplace robs worthy individuals of opportunity, decreases the diversity and richness of the work environment, and may result in decreased revenue where the marketplace demands not just equality, but equity in the ranks and in leadership.  If, as a business owner, I do not acknowledge and eliminate my unconscious bias there will be a direct impact on both hiring and retention. When looking for outstanding candidates to become associate attorneys and/or future partners and I look only to my former university, which is predominately white, get recommendations from my friends, who are predominately white, and advertise in a newspaper whose readership is mostly suburban, I have engaged in a form of unconscious bias known as affinity bias.

I make the presumption that because a candidate has similar background and experiences as me and knows people, I know that they will fit into the organizational culture and do a great job. By my unconscious biases I have eliminated other qualified candidates from even applying for this position - others that would add diversity, bring different ideas and experiences to the table, and be perhaps even better prepared for the difficult work we do.  The seemingly innocent decisions that were made on where to find candidates eliminated almost any opportunity to draw a diverse candidate pool, let alone hire someone who looks and thinks different than I do. Likewise, when looking at retention of a diverse workforce we must consider what factors we are utilizing for promotion and leadership opportunity. Are employees being mentored by individuals who value the skills and experience that the diverse employee/attorney brings to the firm? Have we allowed employees the ability to structure their schedule such that they can participate in special projects, social engagement opportunities, and networking? For example, parents, especially single parents, may not be able to participate in early morning or evening activities. If we schedule the majority of activities that foster leadership development during those times, we will have limited the growth and contribution of those employees and likely find that they will quickly be looking for another employer who will better foster their individual development.

There are many common conscious and unconscious biases in the workplace. Ageism, racism, gender bias, beauty bias, and name bias, are a few unconscious biases to be aware of and actively work to correct. In an interview, it would be prohibited for the interviewer to eliminate a prospect because the applicant is black or brown. But frequently a first or last name on a resume can at least suggest that the candidate is of a specific racial or ethnic group. Is that person less likely to even be granted an interview, thus eliminating opportunities for career advancement, economic security, and family stability?  The answer is yes. Some studies suggest that white names received 50% more callbacks for interviews than African American names and that Asian names were around 30% less likely to get a callback. 

Eliminating unconscious bias takes work. The first step is to acknowledge that we all have these biases.  Step two is to accept that the biases have a mostly negative impact on the person or group that is being assigned the stigma associated with the bias and therefore it is important to eliminate the unconscious biases.  Step three is to begin working towards the elimination of the bias. They cannot and should not be ignored. In the workplace examples above, the employer could activity solicit resumes from diverse colleges and universities, such as a historically black colleges and university, and not rely on referrals from personal relationships with people of similar characteristics.  Additionally, to eliminate name and personal identity bias applicant applications could be scrubbed of personal information through a numbering system or a third-party unbiased person.

Recognizing and eliminating implicit bias in the workplace is work, but it is necessary work.  To learn about some of your own biases I encourage you to take the Harvard Implicit Association Test (IAT) at implicit.harvard.edu.  It is possible you won’t like the outcome, but if we, both individually and as a society, do not recognize the damage of implicit bias and start with ourselves, we will never effectuate lasting change.

Copyright © 2021 USFN. All rights reserved.

Summer 2021 USFN Report