Disability Inclusion in Hiring – A Practical Guide for Talent Acquisition Professionals
We recently had the opportunity to speak with Craig Leen, a partner at K&L Gates in their Labor, Employment, and Workplace Safety Practice, where he focuses on disability and civil rights law. Craig previously served as Director of the Office of Federal Contract Compliance Programs (OFCCP), a federal civil rights enforcement agency.
Neurodivergent individuals represent approximately 20% of the potential workforce, and despite their extraordinary skills and numerous studies highlighting the productivity of neurodiverse teams, they remain among the most underemployed and unemployed groups. We hope the below key takeaways from our conversation with Craig prove useful and impactful as you pursue effective talent acquisition and retention strategies.
The full conversation is available on BroadFutures’ website HERE. While it does not constitute legal advice for any specific organization, the discussion is intended to offer actionable guidance for employers and talent acquisition professionals interested in disability-inclusive hiring, with a particular focus on neurodivergent talent. It addresses general considerations and common misconceptions that may prevent some employers from pursuing inclusive talent strategies.
As always, specific legal decisions should be made in consultation with qualified counsel.
Key Takeaways:
- Disability Hiring Programs Are Legally Sound and Provide Effective Risk Mitigation: Disability hiring programs are legally safe despite recent Executive Orders and associated activities targeting corporate DEI practices. Executive Order 14173 (the foundation for the Administration’s “anti-DEI” agenda) places limitations on DEI programs, especially those focusing on race and gender, subjecting them to heightened scrutiny. However, disability inclusion is explicitly excluded from this legal risk.
- Distinguish Disability Programs from Broader DEI Initiatives: When developing disability hiring programs, distinguish them in spirit and implementation from corporate DEI programs and associated initiatives. Avoiding this link mitigates unnecessary and potentially damaging political and legal exposure.
- Disability Inclusion is a Strategic Advantage: Disability inclusion is not just a compliance necessity but a strategic advantage for employers. By taking deliberate steps to create workplaces that are inclusive of disability, organizations can tap into a largely underutilized talent pool and position themselves as leaders in corporate responsibility.
- Equip Teams with Sufficient Resources: When addressing disability support, ensure your teams receive training on accommodations and reduce stigma toward neurodivergent and disabled individuals. Strongly consider partnering with third-party experts who specialize in helping employers build accessible workplaces. If you are unsure about your practices—or simply want to confirm compliance—always consult legal counsel.
Common Misconceptions About Disability Programs
Misconception #1: Disability Inclusion Programs Violate Anti-Discrimination Laws
Truth: Disability inclusion is explicitly protected under federal law, including Section 503 of the Rehabilitation Act. Unlike race or gender, the law permits targeted hiring efforts for individuals with disabilities. Properly designed disability inclusion programs carry minimal legal risk since “not being disabled” is not a protected class under anti-discrimination laws.
Misconception #2: Disability Hiring is Prohibited Under Recent Administration Guidance
Truth: Executive Order 14173’s (Ending Illegal Discrimination and Restoring Merit-Based Opportunity) scrutiny of DEI programs does not apply to corporate disability initiatives. Executive Order 14173 places limitations on DEI programs, especially those focusing on race and gender, subjecting them to heightened scrutiny. However, disability inclusion is explicitly excluded from this legal risk.
Misconception #3: Corporations that Support Disability Hiring Programs are Placing a Target on their Heads
Truth: Disability inclusion efforts consistently receive bipartisan legal and social support, minimizing political and legal risks. In fact, at time of publication of this document there has not been a single case of the current Administration targeting or threatening a company because of a disability hiring program.
When Developing a Talent Acquisition Program to Support People with Disabilities, Consider the Following Design Principles (note: these are not intended to be comprehensive):
- Voluntary Participation – Ensure all disability-specific hiring or resource group participation is opt-in.
- Separate Initiatives: Avoid labeling disability hiring as part of broader, scrutinized DEI initiatives to shield it from unintended political attention.
- Set Hiring Goals: It is legally sound to set hiring goals for people with disabilities; in fact, Federal contractors have a legally mandated 7% utilization goal for people with disabilities, as does the federal government under Section 501 of the Rehabilitation Act
- Reasonable Accommodations: Provide adjustments to the workplace to allow employees with disabilities to perform their roles effectively.
- Confidentiality – Maintain privacy regarding employees’ medical information and disabilities.
- Provide Pathways for the Non-Disabled– Be sure that there are pathways for people who do not have disabilities to enter your workforce, though importantly you can still have hiring programs designed specifically for people with disabilities.
- Seek Legal Counsel – Always seek your own corporate legal counsel when implementing a new program
Talent Programs Designed to Support People with Disabilities Lower Legal Exposure
The Americans with Disabilities Act (ADA), specifically Title I, requires among other things accommodations for people with disabilities in the workplace. Many companies have been sued for non-compliance with the ADA. In fact, disability discrimination is the second most common discrimination case under the ADA, after retaliation.
Implementing intentional programs to hire people with disabilities reduces ADA compliance risks – and thus legal exposure — by demonstrating that your company is proactively handling accommodations and providing a framework for equitable treatment. As concerns neurodiversity specifically, the associated conditions are common and often underreported due to stigma, so providing accommodations for neurodiversity and fostering an inclusive workplace for neurodivergent individuals can help lower legal risk (not to mention also increase productivity).
Federal Contractors Have A Legal Obligation to Hire Employees with Disabilities – and There’s a Reasonable Chance This Includes Your Company
If you are a federal contractor, you are legally obligated under Section 503 of the Rehabilitation Act to aspire for a 7% hiring goal for employees with disabilities. Section 503 programs offer additional legal protection and provide a clear framework for permissible affirmative action. A Federal Contractor is a broad term and companies that are considered federal contractors include anyone who does business with the federal government – which implicates upwards of 50% of total national economic activity. It’s possible that your company is considered a federal contractor even if only a small portion of your revenue comes from the federal government.
(Summary) Disability Employment in Today’s Environment: A Conversation with Craig Leen