Why the ADA Might Not Always Work for People with High-Functioning Autism

August 23, 2023Miriam Edelman

Disclaimer - For ease of comprehension, this post uses the "high-functioning" label, although this label is problematic because it dismisses the very real challenges that people with high-functioning autism live through on a daily basis.

In light of the 33 rd anniversary of the Americans with Disabilities Act (ADA) last month, it can be valuable to shine a light on how this landmark civil rights law does not always work for people with high-functioning autism (HFA). This population can be harmed by ableism and misjudgments during being hired and while employed. Main autism symptoms relate to difficulties with social communication and interaction. It is unclear whether people with autism automatically are covered by the ADA, as some say that whether people qualify as having a disability is resolved on a case-by-case basis.

Reform Jews strongly believe in full inclusion of people with disabilities. Leviticus 19:14 teaches that we must not "insult the deaf, or place a stumbling block before the blind." Judaism obligates us to remove barriers. Yet often, people with disabilities are left behind due to barriers that occur because of no fault of their own. Indeed, Pirkei Avot 4:27 cautions us, "Do not look at the container, but what is in it." We need to look beyond autism-related challenges and fully accept people with HFA.

According to the ADA, people with actual or perceived disabilities cannot be discriminated against due to their disability. However, since many people with HFA can be misdiagnosed or undiagnosed, they might not qualify under the ADA's definition of disability. Even if they have the autism diagnosis, they might not want to disclose their diagnosis for fear of stigma and being perceived as a problem. They also might not know their ADA-protected rights.

People with HFA can be valuable employees, if they are given a chance and not be expected to conform to neurotypical behavior and communication standards. They can contribute at work in many ways that others cannot. Employees with HFA can be 140 percent more productive at work than neurotypical workers . They also can be valuable to their co-workers, " including (but not limited to) understanding complex systems, independently focusing on tasks, reliability, and loyalty."

People with autism have higher unemployment rates than people with disabilities in general. On average, half to three-quarters of autism are underemployed or unemployed in the U.S. Although 35 percent of people with autism go to college, just 15 percent are employed, a much smaller percent that the general population. While the employment rate for HFA is 12 percent, the employment rate for low-functioning autism is two percent (these percentages might be different because different data could be used to calculate rates.). Even after excelling academically, people with HFA can still struggle in getting meaningful employment.

People with autism can struggle with interviews. Conversational and nonverbal elements of interviews disadvantage individuals with HFA. 43 percent of hiring managers view aspects such as "poor" body language (some autism symptoms) as a dealbreaker. Although people with HFA could be valuable employees, they are often not given a chance.

Potential employees with HFA might never know the real reason why they are not hired. Employers might never be forced to say their real reason for rejecting those people, as many offices do not get back to people they interviewed but do not hire and often do not let the applicant know the real reason for the rejection. Often, lawyers tell offices not to tell applicants those reasons because they can cause legal problems. Some real reasons can be "you had bad social skills," "you didn't communicate clearly," "you were long-winded in an environment where you'd need to be more concise," and "you came across as really cold." Those reasons can, but not necessarily, result from HFA and can be why people with autism have low employment rates.

Even when people with HFA get employed, they can still suffer, experiencing "stigmas, discrimination and bullying from their colleagues." According to Kedushim 70a, "When a person insults someone else, it is their own defect they are revealing." A 2014 study reported that 45 percent of adults with autism were overeducated for their job. Often, their skills are improperly used. These inappropriate positions could cause resentment and workplace problems.

Some people with autism have autism-related issues, including excessive e-mails, asking too many questions, and speaking up. An " atypical communication style" of an employee with HFA (EHFA) can cause the EHFA to send many e-mails, which can frustrate their neurotypical colleagues. The office might want the EHFA to conform regarding communication, letting that worker know that their "natural style is a deficit to compensate for."

The EHFA's much questioning can cause problems. Many people with autism are detail-oriented and have much disorder through an intake of more information than neurotypical people. They ask many specific questions. Employers might get irritated and not realize that some people with autism need more context when being assigned work or being given an explanation.

Offices can misinterpret the EHFA's behavior. Speaking up could be seen as challenging authority when the EHFA merely tries to help. These problems and the office's responses show that employers do not accept the EHFA. Research shows that not being accepted can harm the EFHA's mental health.

The ADA stipulates that employers is required to give "reasonable accommodation" (RA) unless the employer can show the RA would be a hardship. When requesting an accommodation (which EHFA might do after having negative feedback at work for autism-related performance problems), they merely have to say "that she requires the employer to provide her with an adjustment or change at work due to a medical condition." The Equal Employment Opportunity Commission says, "Generally, it is the responsibility of the employee to inform the employer that an accommodation is needed." However, some employers might refuse proper requests for RAs.

Other offices can implement RAs incorrectly. The employer has the final say on what the reasonable accommodations will be with two caveats: the employer should give primary consideration to the EFHA's preferences (as the employee often knows what the best accommodation is, as he/she knows the barriers that their disability causes), and the employee does not have to accept the employer-chosen RA. The employer "should have a prepared reason for denying the request to give to the employee," but in reality, an employer sometimes does not provide such a reason. In addition, the employer can bully the employee into accepting that RA and disclosing their autism to the entire office to get that RA (despite that employee not wanting that RA). The employer can also months later blame the EFHA for a delay in getting that RA that the EFHA did not want. The employer and EFHA should continue to talk to see if the RA works and made adjustment accordingly. However, in reality, an EFHA can disagree about how to use the RA, and the employer informs the EFHA when giving the PIP months later that the RA has not been used correctly. The employer should have acted immediately when he/she knows about the improper use of the RA.

An EHFA who receives RAs can still have major problems. They still might face resentment and disgust from coworkers. While RAs are meant to help that individual, they could perceive it as being othered. Employers can stop providing such RAs. They can also change views about that worker's autism-related problems. Co-workers can exclude the employee with HFA in work due to worry that there would be many e-mails and questions.

Stereotypes unfairly limit an EHFA can do. The employer can also misjudge what a person with HFA can and cannot do due to autism. The employer might think it is too difficult to work with that employee, incorrectly thinking that every new task would be difficult.

The employer can use a performance improvement plan (PIP) "to attempt to avoid liability for what's coming in a couple of months: termination." However, the PIP can have unattainable and illegal goals, setting up the person with HFA to fail and be fired for performance even though the real reason is autism (The employer does not want to say it cannot handle working with the limitations of a person with HFA.).

A PIP given to an EHFA can involve ADA-prohibited indirect disability discrimination, which is when an employer policy places workers with disabilities at disadvantages. In the case of an EHFA, the PIP can mandate that that employee must have the same (or even a smaller) communication level than their neurotypical employees (even when the office knows that that worker consistently has had a higher volume of e-mail than others). This stipulation is akin to saying a person with a broken leg must walk up the stairs as his/her able-bodied colleagues do.

Even if the EHFA works hard to maintain employment, it might not be enough if the employer always meant to fire that worker. Sometimes, the EFHA might not be working from a fair baseline. At a PIP meeting, an employer can exert ableism by unfairly comparing the EHFA with co-workers and attacking the person. The EHFA can be traumatized.

The EHFA can even be fired for being autistic. The firing letter can mention performance, communication, and at-will employment as reasons for firing. Performance could just be an excuse. Communication relates to autism. At-will employment means that the employee and/or the employer can end employment at any time without providing a reason, but at-will employees with disabilities have ADA legal protections that prevent employers from discriminating against employees with disabilities.

How can people with HFA succeed with employment? Hire them. Follow your ADA obligations. Accept them for who they are, as it is not enough to just be aware of autism. Do not force them to completely conform. Be open to their ideas, as they know themselves the best and thus could know what could help them at work. Or in other words, follow Proverbs 22:6 "Teach a child according to their way" (i.e. according to their needs and abilities). Handle reasonable accommodations accurately. Focus on their strengths. Be less judgmental. Give them grace. Treat them as you would like to be treated. Do not misinterpret their actions. Do not set them up for failure. Contact your Member of Congress, advocating for stronger and more inclusive ADA protections. Ensure that the ADA always covers autism so there is no doubt.

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