In this podcast, JAMS neutrals Stephen H. Sulmeyer, J.D., Ph.D.; Robin H. Gise, Esq.; and Maurice Q. Robinson, a member of the 2022–2023 class of the JAMS Diversity Fellowship Program, discuss neurodiversity and the workplace. Their conversation starts by defining neurodiversity and delving into traits that can be common with neurodivergent individuals. This includes highlighting strengths and challenges that may be present within the workplace. The conversation then focuses on how neurodivergence should fit into a company's diversity, equity and inclusion (DE&I) strategy and how companies can best create a workplace culture that recognizes, supports and celebrates neurodiversity and neurodivergent employees, which relies heavily on proper education.
From there, the podcast guests discuss areas where challenges may emerge for companies when working with neurodivergent employees and the conflict resolution approaches that can be valuable when handling related disputes. These approaches include prioritizing connecting with the individual, active listening and finding opportunities to provide the level of support that the employee needs. The group concludes by highlighting the key takeaways when working with neurodivergent employees, including creating an inclusive environment, prioritizing education for all staff and making time to understand employees on an individual level.
[00:00:00] Moderator: Welcome to this podcast from JAMS. In this episode, we're discussing neurodivergence in the workplace: what it is, how to incorporate it into your company's DE&I plans and how to engage and support neurodivergent employees. We're also exploring how mediation can resolve conflicts related to neurodivergence. We're joined today by three guests. Stephen Sulmeyer, a clinical psychologist and JAMS neutral who has helped resolve employment, workplace, family, probate, and business disputes. Robin Gise, a former litigator turned JAMS neutral with extensive experience in resolving employment and workplace disputes, and Maurice Robinson, a member of the 2022-2023 class of JAMS Diversity Fellows. Maurice is an Assistant Director of Workforce, Diversity, and Equal Employment Opportunity Compliance for the Port Authority of New York and New Jersey.
[00:00:54] So, thank you all for joining us today. Stephen, can you start with some basics? What is neurodiversity, and what is neurodivergence?
[00:01:02] Stephen Sulmeyer: Sure. Those two terms are used interchangeably. I think the first thing I'd like to say is that neurodivergence isn't a diagnosis. It's really more of a social theory. It's just a way of trying to understand the natural diversity of ways in which people's brains and behaviors differ within any population.
[00:01:23] There is no clinical standard for a neurodivergent brain. Any more than there is a standard for a neurotypical brain. So, it's really important when we're talking about neurodivergence to understand that it is attempting to make a distinction between people who can pass as normal, as it were, and people who can't. And when I say "pass for normal," what I mean is that neurotypical people aren't all the same. Just as people who are so-called neuro-atypical, or neurodivergent, are also not all the same. So, "neurotypicality," if I can coin a word, masks a great deal of diversity. You can ask my wife if you don't believe me.
[00:02:10] So that's the first point I want to make as we further break this down. We talked about neurodivergent individuals. We're talking about differences in mental functioning, in learning styles, in sensory processing, communication styles and different kinds of behaviors that differ from what we call the "norm"—and again, there is huge variety within the norm—but the folks that we're talking about tend to struggle, as compared to the norm, with soft skills, so-called soft skills such as like emotional intelligence, social intelligence, ability to work effectively in a group, ability to adhere to nonverbal social norms. There can also be marked differences in terms of physical behaviors, like not understanding or getting the unspoken physical distance that people in our culture usually stand between one another or speaking too loudly or not loudly enough or self-soothing actions like rocking back and forth or irregular hand movements, these kinds of things.
[00:03:20] There are so-called disorders that fit within what we're calling neurodivergence. This would include autism spectrum disorder, things like ADHD, attention deficit hyperactivity disorder, ADD, which is attention deficit disorder, a slight variation on that. Nonverbal learning disorder, NLD, is something my son was diagnosed with. Basically, it means difficulty with the nonverbal social cues. And then there's the things like dyslexia, dysgraphia, dyscalculia. These are difficulties with reading, difficulties with writing, difficulties with numbers. And the "dys," D-Y-S, that is the prefix of those last conditions that comes from the Greek, meaning hard, bad, unlucky, defective, deranged.
[00:04:15] It's actually quite a pathologizing term. The point I really want to make at the outset is that we need to "depathologize" these conditions. I think the better, more helpful way as a culture and also when we're talking about employers—it's really more useful as a practical matter to think about a very wide spectrum of differences in mental functioning and cognitive capacity and in behaviors.
[00:04:45] And then within that large group of diversity, we can talk about what might be working and what might be working less well, and then also refraining from diagnosis because diagnosis is kind of pathologizing, "otherizing" people. And it masks so many of the strengths that are typical among the so-called neurodivergent population.
[00:05:12] And that's—that's an important thing for every—every one of us to know. Strengths include, for example, with ADHD individuals, an ability to hyper focus. We also see that sometimes with people with what used to be called Asperger's syndrome—enhanced sensory capacities, ability to hear particularly well. I don't just mean hear sounds, but hear differences in sound.
[00:05:34] Some people can have ADHD, for example, and hear incredibly subtle differences in different recordings of the same symphony. People with dyslexia, who I've known personally, have difficulties in writing and reading but can be great, talented, big-picture thinkers. They can excel at art and visual processing.
[00:05:57] They tend to have great spatial awareness and be very, very creative. So, there are a lot of hidden strengths that we don't want to miss when we are thinking about neurodivergent populations.
[00:06:09] Moderator: OK. Very helpful. Thank you, Stephen. Maurice, Stephen talked about the hidden strengths of so-called neurodivergent people. How should neurodivergence fit into a company's DE&I strategy?
[00:06:22] Maurice Robinson: Well, I think we need to take a step back and look at why do we have the DE&I strategy, right? What's the purpose of that strategy? And often it's really to promote diversity, to foster this sense of inclusivity and really to enhance the idea of equity within the organization.
[00:06:38] In doing that, we really aim to create workplaces that value and respect differences that provide equal opportunities for those differences and really rectify the disparities that we see when those differences come in. In order to promote this idea of innovation, we want to attract more talent. We want to boost employee morale and productivity. We want to reduce bias and discrimination, and we really want to align the organization with whatever global trends that are happening and whatever exceptions that are occurring in the market. So, incorporating neural diversity into your strategy becomes pivotal. It becomes a required thing that should be done because this is really talking about another way of thinking, a diverse way of thinking. And that's what we want. That's what our strategies are aiming for. It gives us a richer workplace culture. It involves really creating policies that allow those neurodivergent people to feel like they belong in the workplace, to put them in an environment where they can best contribute and actually invest in the workplace like everyone else.
[00:07:41] And it allows them to celebrate that diversity and difference that they have and recognize that they are included and feel belonging in those spaces. And not just like they're there as a representation of a number. Echoing Stephen that they should not be looked at as always having a disability per se.
[00:07:59] But when we talk about neurodiversity, we're talking about a whole spectrum and a whole different way of thinking. And that's ultimately what we want when we want diversity in the workplace. We want to have people coming from different backgrounds, thinking about our problems very differently and thinking about our solutions in very different kinds of ways.
[00:08:18] Moderator: And just following up on that, Maurice, how have you seen the experience of neurodivergent employees play out? Any experiences of their colleagues and managers?
[00:08:28] Maurice Robinson: So, I think for neurodivergent individuals, it may mean processing information differently or having a unique communication style. And that may sometimes cause conflicts with colleagues or managers. And that's where education really needs to come in. I think colleagues and managers need to understand and accommodate these differences to foster that inclusive environment that we're looking for to capitalize on the capabilities of those neurodivergent individuals. There's also a lot of stereotyping and bias and prejudices that happen for this neurodivergence because, again, this is something that people don't understand fully. They haven't always approached this with a learning mindset, where they've gotten the necessary information. And companies haven't always provided the training and education in this area like we have done in some of the other diverse work that we've done. So, people are just really looking at, well, what do I know about neurodivergence, or what have I heard about these people?
[00:09:23] Calling them "these people"—and there, again, separating and othering them without taking the time to say, "How can I create the environment for them to best foster and develop the kind of change we want to see?" The other big one I've seen in the workplace is social interaction for some individuals that are neurodivergent. Social interactions can be the most challenging. How they socialize can be stigmatized. They can be seen as unfriendly or uncooperative due to some difficulties in communication. They can be seen as inflexible sometimes, leading to a lot of misconception about their performance and their abilities, and I think that's the key thing is sometimes it's not a performance issue; it is the environment and the tools that I've been given are not setting me up for success. As managers and supervisors, that's ultimately our job, for any employee to [be] set up with the tools and skills and knowledge and environment they need to be most successful.
[00:10:23] Moderator: You mentioned education. What are some of the other challenges that companies may face with neurodivergent employees?
[00:10:31] Maurice Robinson: Well, because of some of that stigmatization and that prejudice about them, you may not know your employee is actually neurodiverse. They may not disclose their neurodiversity for fear of how they're going to be treated, for fear of isolation in the workplace, for fear of having a lack of support in the workplace. Not seeing those proper mechanisms, those proper accommodations, if it does amount to a medical need being put in place and having processes that are fair and equitable for them to take advantage of that isolation and that sense of "I don't belong here" also makes it really hard for them to fit into the traditional workspace and understand the social dynamics that happen in that workplace, which, again, allows for them to kind of retreat or maybe not perform in the way that's expected.
[00:11:19] Moderator: Well, we've established that neurodiverse individuals have lots of talents. What can companies do to celebrate neurodiversity?
[00:11:28] Maurice Robinson: Well, I think to celebrate it is really to showcase how neurodiversity can really impact business in a positive way. We talked a lot about neurodiversity, and Stephen talked about the "dys" conception that you're dyslexic, you're dysphobic. All of these dys-es are really looking from a negative kind of what you can't do or what you do differently perspective. A lot of times, neurodivergent individuals have something that they are very good at. They may be able to look at a spreadsheet and identify the problem much more quickly than a neurotypical person. They may be able to see the problem differently, and we need to celebrate that because that brings about innovation in the workplace that allows for us to maybe solve problems a lot quicker, that allows us to see problems from different directions and then create solutions that we may not have had in the past or what wouldn't be a typical solution to get us to that inline a lot more quickly. So, we want to be flexible. We want to allow people to put their best foot forward and create those environments where we truly recognize that neurodiversity is a positive aspect of the workforce and can bring us some positive impacts.
[00:12:37] Moderator: Well, no doubt tensions can arise among colleagues who have different work styles. Are there any specific steps or measures companies should consider taking to prevent those different styles from resulting in conflict?
[00:12:51] Maurice Robinson: I think there are a number of different things that can happen at companies at different levels. When we're talking about at the company level or the agency level, it really is, you know, having an implemented accommodations policy tailored to address workplace adjustments that support the different needs of people. It's about having structured processes and developing clear workflows to minimize any ambiguity that may be there. At the department level, it's about building a culture that values those diverse approaches, that focuses on shared goals and really reaching our ultimate shared goal together, having communication in those environments.
[00:13:30] And I think at the individual level, especially at the manager level, it's about cultivating a comfortableness with not knowing. I think managers and supervisors often feel they need to know everything, and that's how they solidify their leadership status. But understanding that I may not know about this or I may not know the best environment for this, so let me have that conversation. Let me educate myself to foster that awareness about this neurodiversity that this person is dealing with, and how I can best be an asset, a support system, with them and deal with conflict in a different kind of way. I think one of the key things that can also happen is just having a conflicts resolution process built into your workplace environment. I deal from the legal side with a lot of EEO complaints, and one of the key things there is that not everything may amount to an EEO complaint, but it really is impacting your culture and your climate at your workplace. And having a mechanism where people can talk about these issues, explore these in a safe and comfortable environment, where they can feel comfortable disclosing and work out some type of resolution through something like a mediation program or a corporate ombudsman program, really allows people to put their kind of neurodiversity out on front and say, "Hey, here's what I specifically need for me to be great here."
[00:14:49] Moderator: Robin, of course, you are no stranger to workplace disputes, but can you talk through what types of disputes you typically see when they do involve neurodivergent employees?
[00:15:02] Robin Gise: Sure. You know, from where I sit as an employment mediator, the disputes around neurodiversity in the workforce typically arise in terms of claims that reasonable accommodations have not been given, that the process has failed, the employee has not been supported and not been able to bring their best self, resulting in poor performance evaluations or conflicts or something that results in termination or a claim that, you know, they couldn't work there anymore. And that's really sort of the legal lens through which I see issues of neurodiversity in the workforce, which is obviously not a good one. It's not a place that you want to be. And it definitely shows it's usually a larger picture than the accommodation not working out. For example, in the case of an employee with ADHD, a request for accommodations might be made to include, you know, instructions being given in writing or more time to complete assignments. And for whatever reason, you know, most certainly there was not enough support and training at the manager level or among colleagues to really understand what the neurodivergence was and what this employee needed. Looking at that alone doesn't usually tell the full story. There may be, as Maurice pointed out, difficulties in social communication or communication styles that haven't really been properly addressed in the accommodations process.
[00:16:37] Neurodiverse people can have other mental health conditions—anxiety, depression—that may impact their work performance, no doubt, you know, having been exacerbated by sort of societal lack of understanding of their condition. So, when you get to the mediation, it's a difficult process. It's certainly emotional, it's multilayered, it's complex and—and quite challenging.
[00:17:03] Moderator: Oh, no doubt. Do you take a special approach to resolving these kinds of disputes?
[00:17:08] Robin Gise: On one level, I, you know, approach all mediations by trying to, you know, at the outset, hear from the parties, make connections with the parties and their counsel so that I can be effective as a conflict resolver. But I think in the case of neurodivergent employees, if it's a claim that an accommodation isn't working out or hasn't worked out, I'd make it, you know, my business to try to educate myself. If I do want to make a pitch, I do think in the mediation world generally, there should be more education about neurodiversity to avoid some of the biases that people may have. And in speaking with the person, I'm mindful or I try to be mindful of that in—in the context of our case, the neurodivergence is viewed more likely than not from a deficit-based paradigm rather than a strength-based paradigm.
[00:18:01] It may be there was something this person was really good at that wasn't captured in this particular employment situation. If I'm having trouble communicating with a neurodiverse mediation participant, I might try to speak to their counsel privately or do something so that I can make sure that their perspective is being heard.
[00:18:24] I mean, that certainly is, as Maurice alluded to, a benefit of mediation in dealing with issues of neurodiversity because, you know, the goal of a mediation at a very basic level is that everybody is respected and that everybody is heard. So as a tool for resolving workplace conflicts, usually, you know, preferably before the employment relationship has ended—it can be a very powerful tool if there's sufficient education around the issues.
[00:18:53] Moderator: Stephen, from your perspective as a psychologist, lawyer and mediator, what are some considerations mediators and lawyers should think about when working with neurodivergent individuals in an employment mediation?
[00:19:07] Stephen Sulmeyer: I think it's probably the same in mediation as it actually would be within the workplace. I don't see it as being particularly different. I think, as Robin said, education is a really key component, but specifically to answer your question about what it might look like in mediation, I think what's really important, in my experience, is connection.
[00:19:27] Every conflict, every dispute, without exception, always has a legal component and an emotional component, despite what some lawyers may tell us. And when we're talking about someone who is complaining of either discrimination or a lack of adequate accommodation, there's going to be feelings involved. And it's very important that the mediator or even the employer, if we haven't quite got to mediation yet—you need to connect. When it comes to the legal aspect, the goal is to reach some kind of an agreement, whether that's around accommodation or what have you. But when we're talking about the emotional component, the goal isn't agreement; the goal is connection. And these two coexist like yin and yang in every mediation, in every conversation around these topics.
[00:20:15] So, some kind of a top-down, imposed set of rules or understandings about what we might do better in the future, whether that's in mediation or out, is probably less likely to work than one that is co-created by the individuals involved. And that really means listening. It really means dialogue with perhaps groups of people who may share similar attributes in terms of their neurodivergence or the individuals themselves, but really finding out what is your experience? What do you need? What do you think would work given your needs and my need to work together in a collaborative way to produce a solution to a problem really mirrors exactly what Maurice was talking about.
[00:20:59] That's the kind of, sort of corporate culture that we want to encourage: where people's voices are heard, where they're participants in resolving the kinds of speed bumps that just inevitably happen whenever people are working together.
[00:21:12] Moderator: All right. Stephen, Maurice, Robin. I want to thank all three of you for a really important discussion. Before we leave, though, I do want to allow one last thought from each of you. Maurice, any final thoughts that you'd like to leave our listeners with?
[00:21:29] Maurice Robinson: Well, one, I would just say that what's been highlighted through this podcast right now is that education is critical and key, and that if we take these steps to really look at accommodations for neurodivergent individuals, I have seen in my experience that it often doesn't just help the neurodivergent individual. It's basic things about creating culture, creating a climate, creating a workplace where everyone feels like, "what I need to be my most successful is given to me in a way that I can accept and receive it," and that we are creating environments where people are being set up for success and not identified for their failures.
[00:22:06] Moderator: Robin, final thoughts?
[00:22:08] Robin Gise: In listening to this dialogue about, you know, something Stephen said in the beginning, you know, in terms of how we think about our workplace interactions, that neurotypicality includes a wide range. I think we all probably know this from our personal experiences and from our families that we make adjustments. Everybody must make adjustments, and in the workplace, you know, there are certain norms—that communication needs to be X way or Y way—that are decided by somebody, but not necessarily encompassing the whole. So, I think having a broader-based understanding of what neurotypicality means will go a long way hopefully to creating the kinds of, you know, inclusive and supportive workplaces that Maurice has been describing.
[00:22:55] Moderator: Stephen, I'll give you the last word.
[00:22:57] Stephen Sulmeyer: Thank you. I so rarely get that. I guess what I would say is—and I'm speaking to the employers now—don't think about DEI and neurodivergence as a means of avoiding legal liability or necessarily even coming up with an accommodation. This is a human issue before it's a liability issue. I'm not saying there is no liability issue, but prior to that, on a deeper level, there's the human issue. How do we want to walk in the world as an organization and within the organization? So, given that, I would say, don't make assumptions, find out who individuals are on a one-to-one basis, find out what their preferences are, their needs, their goals. In other words, be kind, be patient, be curious, and I would also recommend intervening earlier. Don't wait for it to become a problem.
[00:23:51] Moderator: All right. We'll end it there with those wise words. Stephen, Robin, Maurice, thank you so much. You've been listening to a podcast from JAMS, the world's largest private alternative dispute resolution provider. Our guests have been Stephen Sulmeyer, Robin Gise and Maurice Robinson. For more information about JAMS, please visit www.jamsadr.com. Thank you for listening to this podcast from JAMS.
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