Continuing the exploration of interviewing for “cultural fit” as a form of illegal employment discrimination, today’s post looks at one of the less obvious categories of discrimination created by this hiring trend: discrimination against applicants with autism spectrum disorders (ASD).
Employers are already cautious about actions that tend to harm larger classes of applicants, women and racial minorities. I’ll touch on the impact of “cultural fit” interviews on those groups later, but for now you can get a taste here and here.
How could “cultural fit” interviews inappropriately impact the employment opportunities for autistic applicants?
Under the most nefarious yet common definition of “cultural fit,” candidates must be able form a nascent personal bond with the interviewer(s) during the course of a short, one-time meeting. The criteria focuses not an applicant’s ability to do the actual job, but meeting the interviewer’s preference for “hiring someone they feel comfortable with and would like to hang out with.”
This kind of “cultural fit” standard would likely have a discriminatory effect against qualified autistic applicants. According to the American Psychiatric Association’s revised DSM-5 revised standards:
People with ASD tend to have communication deficits, such as responding inappropriately in conversations, misreading nonverbal interactions, or having difficulty building friendships appropriate to their age. In addition, people with ASD may be overly dependent on routines, highly sensitive to changes in their environment, or intensely focused on inappropriate items. Again, the symptoms of people with ASD will fall on a continuum, with some individuals showing mild symptoms and others having much more severe symptoms.
Even high functioning people with autism have difficulty making the kinds of social connections, a skill necessary for demonstrating so-called “cultural fit,” and doing so in a short one-off interview would certainly prove extremely difficult. The spread of this kind of “cultural fit” interviewing will have the effect of blocking people with ASD from employment opportunities, despite their ability to meet actual job requirements.
Diagnoses of ASD have increased significantly. In 2000, the rate was about 1 in 150 kids. By 2008, it reached about 1 in 88. So a growing number of people could be shut out from the opportunity to work to their full potential by employers insisting on discriminatory forms of “cultural fit” interviews.
Do Autistic applicants have any protection?
People with ASD are covered under the Americans with Disabilities Act, which does provide some protection against employment discrimination, including at the interview stage.
The justification of this protection is deftly outlined in the appendix of Section 1630:
The purpose of this provision is to ensure that individuals with disabilities are not excluded from job opportunities unless they are actually unable to do the job. It is to ensure that there is a fit between job criteria and an applicant’s (or employee’s) actual ability to do the job. Accordingly, job criteria that even unintentionally screen out, or tend to screen out, an individual with a disability or a class of individuals with disabilities because of their disability may not be used unless the employer demonstrates that those criteria, as used by the employer, are job related for the position to which they are being applied and are consistent with business necessity. [emphasis added]
Interviewing for “cultural fit” is a standard that screens out people with disabilities. The employer now has the burden of showing that it is job related and consistent with business necessity. That seems like a high standard to meet in order to take advantage of the exception. Another post will be necessary to show how courts have interpreted this language, and how it could be used to combat employment discrimination from “cultural fit” interviews. Stay tuned for Part II.