As workplaces increasingly recognise neurodiversity, HR and legal professionals face new challenges in understanding how neurodiverse employees perceive and process the world. Research shows that individuals on the autism spectrum often process social and emotional cues differently, particularly in interpreting others’ intentions. Differences in brain function and the ability to recognise that others have perspectives and motives different from one’s own — can make workplace interactions more complex.
Key Takeaways
- Neurodiverse employees may interpret social cues and workplace gestures differently, which can lead to misunderstandings or misperceptions of intent.
- Workplace stressors, sensory overload, and reliance on unspoken social rules can make communication and interactions more challenging for neurodiverse staff.
- Legal frameworks, like the “reasonable person” standard, may not fully account for neurodiverse perspectives, complicating harassment and discrimination cases.
- Employers should implement clear, inclusive communication policies, provide training, and make proactive workplace adjustments to support neurodiverse employees.
- Regular review of policies and collaboration between HR, legal teams, and employees helps create genuinely inclusive workplaces that value neurodiversity and reduce misunderstandings.
Navigating Social Interpretation and Behaviour in Neurodiverse Employees
Individuals on the autism spectrum may experience differences in social understanding, sensory sensitivity, and communication styles, which can shape how they interpret workplace gestures.
A gesture that a supervisor or colleague intends as supportive, such as a reassuring touch on the shoulder, may be understood in a literal rather than social context, leading to confusion or discomfort about the gesture’s meaning or appropriateness.
Actions intended as supportive or compassionate could sometimes be misread as inappropriate or even as sexual harassment, making it essential for employers to understand these differences in order to create inclusive and legally compliant workplaces.
Conversely, some neurodiverse individuals may have decreased sensitivity to social boundaries and may not recognise when their own behaviour might be perceived as inappropriate by others.
In some cases, a neurodiverse person may want to retaliate after feeling bullied or excluded, which can lead them to act out intentionally. This shows that neurodiverse people may react differently to feeling rejected or disrespected.
Challenges of Workplace Communication and Social Cues for Neurodiverse Employees
The workplace can make these situations more complicated because so much communication depends on unspoken signals, body language, and shared social rules that may not be obvious to everyone.
Research shows that neurodiverse employees may find it difficult to distinguish between different types of workplace relationships and understand the behaviours expected in each, making social interactions at work particularly challenging
High levels of stress, sensory overload from noisy or busy open-plan offices, and pressure to fit in with typical social expectations can all make it harder to read and respond to social cues. As a result, neurodiverse employees may misread other people’s intentions, or their own behaviour might be misunderstood by others.
The ‘Reasonable Person’ Standard and Neurodiversity
Understanding and applying the law in workplace harassment and discrimination cases involving neurodiverse people can be especially challenging.
Traditional legal frameworks are often tested because it can be difficult to separate a person’s intent from the effect their behaviour has on someone else. This can be particularly so when neurological differences influence how people perceive, interpret, and respond to social interactions.
Under Australian sexual harassment law, cases are usually judged by an objective test. The test is whether a “reasonable person,” considering all the circumstances, would have expected the behaviour to offend, humiliate, or intimidate the complainant. Although the law refers to a gender-neutral “reasonable person,” in practice, sexual harassment remains a highly gendered issue.
When neurodiversity is involved, this “reasonable person” test becomes more complicated. Should the reasonable person be assumed to think and react like a neurotypical individual, or should the standard take into account the cognitive and sensory differences of neurodiverse people? How we answer that question has important consequences for both complainants and respondents in harassment cases involving neurodiverse employees.
The Challenge of Miscommunication
Neurodiverse individuals can face extra challenges communicating their experiences, especially under stress or during complex legal or workplace situations.
The adversarial nature of the legal system and its reliance on precise verbal expression can make it harder for neurodiverse complainants to have their cases fully understood, potentially leading to further trauma or disadvantage.
In the workplace, misunderstandings about a person’s neurodivergent traits can result in discriminatory treatment, even if unintentional. Under Australia’s positive duty laws, employers must take proactive steps to prevent discrimination and harassment, which includes ensuring that policies, communication practices, and workplace cultures appropriately support and accommodate neurodiverse employees.
Building Inclusive Communication Policies and Training for Neurodiverse Workplaces
To create a truly inclusive workplace, employers need to balance their duty to prevent harassment and discrimination with the need to support neurodiverse employees.
This starts with communication policies that recognise people interpret social cues differently and that clearly outline what’s considered appropriate workplace behaviour — including guidelines around:
- physical contact
- personal space
Policies should be shared in multiple formats so everyone can understand them. Training is also key: managers and staff should learn about neurodiversity, different communication styles, and how to express intent clearly to avoid misunderstandings.
Practical, scenario-based training helps neurotypical employees understand how their actions might be perceived. HR teams need specialised guidance on:
- handling complaints
- supporting neurodiverse communication needs, and
- recognising when an issue may stem from miscommunication rather than misconduct
Proactive Strategies and Workplace Adjustments for Neurodiversity
Employers should take a proactive approach by supporting neurodiverse employees and helping neurotypical employees understand that people may interpret social gestures differently, rather than waiting for problems to arise. They should establish clear protocols for workplace interactions that reduce ambiguity.
This means looking closely at the workplace to identify potential challenges. Simple, tailored adjustments can improve experiences for everyone and help address issues before they escalate. These adjustments can include:
- quiet spaces,
- clear signage
- predictable routines
- flexible work options
- regular check-ins
Regularly reviewing workplace policies through a neurodiversity lens helps ensure practices remain effective, inclusive, and responsive to employee needs. These workplace policies could address consulting neurodiverse employees, tracking complaint trends, and incorporating new research as this area develops.
Creating Inclusive Workplaces and Neurodiversity Awareness
As understanding of neurological differences grows, workplaces must move beyond simply following the law to creating genuinely inclusive environments. These environments should recognise and accommodate neurodiverse employees.
Traditional policies and legal tests may not fully address situations where differences in cognitive processing cause misunderstandings, so employers need tailored training, clear policies, and proactive accommodations.
Legal practitioners and HR teams must work together, drawing on expertise in law, psychology, and neurodiversity, to distinguish between misinterpreted gestures and actual misconduct. By valuing neurodiversity as a natural part of human variation rather than a problem, workplaces can foster inclusion, reduce misunderstandings, and enable all employees to contribute fully, benefiting both the organisation and society.
For guidance on employment law, workplace culture, or neurodiversity inclusion, connect with Gabby McDonald and Farrah Motley at Prosper Law. Their expertise helps Australian employers create fair, inclusive, and compliant workplaces.
Frequently Asked Questions
- How does neurodiversity affect the application of the “reasonable person” standard in workplace harassment cases?
The traditional “reasonable person” standard in Australian harassment law presents unique challenges when neurodiversity is involved. This objective test becomes complex when applied to neurodiverse individuals who may perceive and interpret social interactions differently from neurotypical people.
The key legal question becomes whether the “reasonable person” should be assumed to think and react like a neurotypical individual, or whether the standard should account for the cognitive and sensory differences of neurodiverse people. This determination has significant consequences for both complainants and respondents in harassment cases. Under the Disability Discrimination Act 1992, employers have obligations to make “reasonable adjustments” which extends to how legal standards are applied in practice.
For neurodiverse employees who may interpret supportive gestures (such as a reassuring touch on the shoulder) in literal rather than social contexts, the reasonable person test requires careful consideration of how differences in cognitive processing affect perception and response to workplace interactions.
- What specific communication challenges do neurodiverse employees face in workplace legal proceedings?
Neurodiverse individuals encounter additional barriers when communicating their experiences, particularly during stressful legal or workplace investigation processes. The adversarial nature of legal systems and their reliance on precise verbal expression can make it significantly more difficult for neurodiverse complainants to have their cases properly understood, potentially leading to further disadvantage.
Research demonstrates that neurodiverse employees may struggle to distinguish between different types of workplace relationships and understand the behavioural expectations for each context. High stress levels, sensory overload from busy office environments, and pressure to conform to neurotypical social expectations all compound these communication difficulties.
During formal complaint processes, neurodiverse individuals may require additional support to effectively communicate their experiences. This includes:
- allowing alternative communication methods
- providing clear explanations of legal processes, and
- ensuring adequate time for responses without the pressure of adversarial questioning techniques that may not account for different cognitive processing styles
- What are employers’ legal obligations under Australia’s positive duty laws regarding neurodiverse employees?
Employers must take proactive steps to prevent discrimination and harassment. This specifically includes ensuring that policies, communication practices, and workplace cultures appropriately support neurodiverse employees.
This positive duty extends beyond simply responding to complaints after they arise. Employers must implement clear, inclusive communication policies that recognise different ways people interpret social cues and clearly outline appropriate workplace behaviour. These policies should address physical contact, personal space, and consent, and must be shared in multiple accessible formats.
- How should employers design workplace policies and make reasonable adjustments for neurodiverse employees?
Effective workplace inclusion for neurodiverse employees requires proactive strategies that address potential challenges before they escalate into legal issues. Reasonable adjustments under Australian disability discrimination law extend to environmental and procedural modifications that support neurodiverse employees’ capacity to work effectively.
Practical workplace adjustments include:
- providing quiet spaces for employees who experience sensory overload
- implementing clear signage and predictable routines
- offering flexible work arrangements, and
- conducting regular check-ins to identify emerging issues.
These modifications should be individualised based on each employee’s specific needs rather than applying generic solutions.
Communication policies must establish clear protocols for workplace interactions that reduce ambiguity and potential misunderstandings. This includes guidelines about appropriate physical contact, respect for personal space, and explicit consent processes. Training programmes should use practical, scenario-based approaches to help neurotypical employees understand how their actions might be perceived differently and how to express their intentions clearly.
- How can HR and legal teams distinguish between miscommunication and genuine misconduct in cases involving neurodiverse employees?
Determining whether workplace incidents involving neurodiverse employees constitute miscommunication or genuine misconduct requires specialised expertise and careful analysis. Legal practitioners and HR professionals must collaborate, drawing on knowledge from law, psychology, and neurodiversity fields to make these crucial distinctions.
Key indicators that an incident may involve miscommunication rather than intentional misconduct include:
- patterns of behaviour that appear to stem from different social interpretation rather than deliberate harm
- evidence of stress or sensory overload affecting the individual’s responses, and
- circumstances where traditional social cues were unclear or ambiguous