Accounting for neurodivergence is important in a workplace probe

“The concept of neurodivergence is a hot topic right now,” she tells LegalMattersCanada.ca. “It certainly has some application in my job as a workplace investigator in terms of the way people are presenting their story and how we assess that evidence in a way that is fair and inclusive.”

‘Part of the process is educating people’

“Part of the process is educating people about neurodivergence,” Herfst adds. “And, for our part as investigators, understanding how neurodivergence relates to credibility.”

According to the Canadian Centre for Diversity and Inclusion, the “idea behind neurodiversity is that it is acceptable for people to have brains that function differently, and that there is not a ‘right’ way to think, learn, and behave.”

The Centre states that people who are neurodivergent do not necessarily consider themselves to have a disability and that “neurodivergence and disability are separate concepts.”

“It depends on lots of things, including individual perceptions of disability and themselves,” according to the Centre.

Common types of neurodivergence include:

• Dyslexia: A learning disability that disrupts how the brain processes written language.
• Autism Spectrum Disorder (ASD): a neurological and developmental disorder that affects how people interact with others, communicate, learn and behave.
• Attention Deficit/Hyperactivity Disorder: A persistent pattern of inattention and/or hyperactivity-impulsivity that interferes with functioning.

Common misconceptions examined

Herfst says the AWI annual conference examined some common misconceptions about neurodiverse communication.

Myth: Nonverbal communication is a good indicator of credibility. Reality: Some behaviours, such as failing to make eye contact, fidgeting, repetitive body movements, long pauses before answers, may be standard for neurodivergent people.

Myth: Neurodiverse people have inferior memory or are more suggestible. Reality: While some individuals may recall or narrate experiences differently, that does not reflect a memory deficit.

Myth: Neurodivergence is another word for autism or mental illness. Reality: People’s brains can work very differently and processing differences are not the same as mental illnesses.

“The concept of neurodiversity is new to many people. It has been gaining traction recently and is an umbrella for many things,” says Herfst. “However, it is essential to know how to deal with neurodivergence in an investigation especially when we get to the point of actually assessing someone’s evidence or weighing their credibility, that is the point where we have to be especially cautious.

‘Might not be an issue of credibility’

“The fact that someone has been very limited in their details or that their answers are all over the place might be characterized as evasiveness,” she explains. “Someone might attribute that to poor credibility. But because we have some knowledge about neurodivergence, we begin to see that it might not actually be an issue of credibility.”

Recognizing and accounting for neurodivergence introduces one more layer to an investigation, Herfst says.

“It can make things a bit more difficult because you may have to add another lens in terms of assessing a participant’s evidence,” she says. “It drives us to focus on different factors in their credibility, such as corroborating what they have said with documents or other witness evidence.”

There is a danger in not properly assessing how a neurodivergent person interacts with an investigator during a workplace investigation, Herfst says.

“Negatively assessing someone’s credibility or not giving them opportunities in an interview to answer in different ways and provide information in a way that suits them really limits the way they are participating,” she explains. “That can result in findings that are skewed. Any skew in an investigator’s final report is damaging to our clients because they are facing liability.”

Herfst says it is not just about knowing what questions to ask.

“Perception is a key piece,” she says. “We also have to consider the style of questioning knowing that, for example, someone may be having difficulty with focus or attention.

May have to narrow scope of questions

“We may have to repeatedly go back to ask them the same questions again or narrow the scope of our questions. That can be necessary to give them a fair opportunity to respond.,” adds Herfst. “Knowing how we can structure our questioning to better accommodate the various forms of neurodiversity introduces an additional dimension to our work.”

To be effective as investigators, she says it is essential to keep up with the growing body of research on neurodivergence.

“The research outlining the types of patterns, behaviours and styles of communication that are associated with these conditions is helping to inform us of what might be related to neurodivergence as opposed to issues with someone’s credibility,” says Herfst.

“More research and medical knowledge about how these traits or conditions manifest themselves in terms of verbal or informational processing can, of course, help us better understand the impact it has on that person’s evidence.”

She says recognizing neurodiversity in the workplace is important because “it helps drive inclusivity.”

“All establishments should strive to better understand the impact of people’s unique requirements and support needs so that we can navigate employment relationships equitably,” Herfst says. “It is not necessarily about leniency. Accommodating an individual who is neurodivergent still allows us to be critical about someone’s evidence as long as we can ensure that it is based on something that is fair to them.

Vital that people are assured they will be treated fairly

“A workplace investigation can be uncomfortable to go through. While investigations are important, they can be very taxing emotionally for participants and hard on a workplace,” she adds. “To ensure everyone has really meaningful participation so the hardship is worthwhile, it is vital that people can be assured they are going to be treated fairly.”

It should also be noted that to be equitable and effective, an investigation requires depth and thoroughness, Herfst says.

“I remind participants who are upset about the length of time the investigation process takes that we want to get it right the first time,” she says. “The issue with doing a quick and suboptimal job and not considering all relevant aspects, such as issues with neurodiversity, is that the results can be impugned.

“Then the investigation may have to be conducted all over again by another party to ensure that it is fair,” Herfst adds.

She says her firm, Mortimer Khoraych PC, believes that the time and work associated with continuing professional development is crucial to their effectiveness as investigators.

“It is vital to keep learning and growing,” Herfst says. “It is crucial to stay on top of concepts and issues such as neurodivergence to make sure that we are doing things fairly and correctly. Understanding and considering society’s collective knowledge allows us to improve our craft, get the most equitable results for everyone, and deliver answers that matter.”

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