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Autism Without Fear: Is Corporate Use of 'Emotional Intelligence' Grounds for Discrimination Under the ADA?

08/26/2014 05:29 pm ET | Updated Oct 26, 2014

Many large companies utilize the concept of "Emotional Intelligence," the measuring tool that while first introduced by psychologists, Peter Salovey and John Mayer in 1990, only entered the wider lexicon after Daniel Goleman's 1995 book (also called "Emotional Intelligence"). In short, Emotional Intelligence is an attempt to measure a person's ability to understand both their emotions and the emotions of others. And despite the variety of arenas in which Emotional Intelligence is now employed, the business world has perhaps embraced it with more enthusiasm than anyone, especially in companies' hiring, employee evaluation, and professional development strategies. The business world, after all, loves metrics. And in an era where data has never been more valuable, many executives believe there is a direct correlation between employee productivity and a high Emotional Intelligence score.

But low scores on an Emotional Intelligence test can then be assumed to reduce hiring potential as well as job retention, and therefore could alter the individual's career track, even if they are successfully completing their job requirements. And since many non-apparent disabilities contain life experiences wherein people are often ostracized, or left out of "developmentally-appropriate" life markers throughout youth and early adulthood, two conundrums are immediately posed: 1. Is it therefore a violation of the Americans with Disabilities Act (ADA) to subject an employee with a disclosed developmental disability to an Emotional Intelligence screening of any kind? And 2. If so, are companies actually even aware that such practices are illegal?

A Short History of "Emotional Intelligence"

Though the idea has been taken to a variety of definitions since even Goleman's book, the original concept of Salovey and Mayer broke Emotional Intelligence (EI) into four categories:

1. Perceiving Emotions
2. Reasoning with Emotions
3. Understanding Emotions
4. Managing Emotions

Many of the tests that have since developed to rate an individual's capacities for EI have become enormously popular with corporations, especially large ones. Additionally, those who work with these companies in advisory roles have evolved in their footsteps. Risk Management firms, though initially slow to embrace the concept of EI, have since fallen head over heels with using it as both a sales device to draw business, and as a fix-all training method with new clients. Firms such as TalentSmart have also sprung up, that focus only on products created around the hyperbole of EI, and this strategy appears to have benefit them greatly, as TalentSmart lists over 150 Fortune 1000 clients on their website. Consulting firms such as Corporate Consulting Group make it very clear on their website -- "Hire Employees with Strong Emotional Intelligence," and lastly, from the many HR, and Corporate Diversity and Inclusion (D&I) conferences I've spoken at, I can certainly attest to the enthusiasm I've seen for the use of EI in the workplace, even to the point of some companies and consultants believing EI to be a foolproof means of overcoming Unconscious Bias (the hidden prejudices we may have, but are as yet unaware of).

But EI has not evolved without criticism. Many have outright panned EI, calling it "a hallucinatory desire to break down feelings into a math equation." Other cynics believe EI to be a sisyphean pursuit; in that by definition, emotions cannot be accurately measured due to their intangible nature. And amidst the many tests that have been developed (estimated between two to three thousand), a decent percentage of these examinations are self-given despite the common knowledge that, to quote a recent piece on EI in The Atlantic, "abilities cannot be accurately measured with self-reports" (even the New York Times-owned, About.com, ends their definitions of EI with a self-test). Moreover, the emotional capabilities of the evaluator must also come under scrutiny when some non-self-administered EI quotient exams are conducted.

Still, the ability to perceive the thoughts and emotions of others, and react to them, has been quantified to the satisfaction of many. And in many large companies, a blanket love affair with EI seems to have caused many employees with disclosed, non-apparent disabilities to be subjected to tests that cause them to appear less capable even (again) when they are satisfactorily meeting all of the requirements of their job. Such separation is important because with conditions like autism spectrum disorders, learning disabilities such as Attention Deficit Disorder (ADD), or many mental health conditions, feelings herein grow differently. In varying levels, emotional regulation is a challenge for anyone with Executive Functioning issues, and overall emotional underdevelopment is often a telltale sign for many of these non-apparent conditions. Emotions herein not only evolve at a different pace, they also can mature at differing levels, and in rarer instances certain emotions may never even surface.

Recent Criticisms

Probably the greatest documented value of EI as a tool exists not in corporations, but in our educational system, where the rising popularity of EI gave birth to the dozens of emotional literacy programs now employed by tens of thousands of schools. Recently concluded studies reported on in a recent New York Times article determined that kids who get these programs at an early age were "more likely to do well at work but also to have longer marriages and to suffer less from depression and anxiety. Some evidence even shows that they will be physically healthier." Though author Jennifer Khan's piece was not without skepticism, her article added that, when it came to career and personal success, emotional recognition might factor more so than academic achievement.

And in the aforementioned article in The Atlantic (January 2014), author Adam Grant made a great case that EI is not -- as most "corporate speak" implies it to be -- synonymous with personal character. The piece notes how EI projects the ability to manipulate emotions as well as understand them, citing not only Martin Luthur King, Jr., but also Adolf Hitler as extreme examples of this talent. And the article also pointed out what some, but not all of the corporations who use EI understand: that while EI is indeed a benefit to socially-oriented positions such as sales, it has actually been proven to be a detriment in less-social vocations such as scientist, data entry, financial analyst, or auto mechanic.

Finally, many clinical professionals object not only to the notion that high EI indicates that the beholder of a high test score is a good person, but also that EI is an "intelligence" of any kind. Though they've likely benefit from the many undisciplined directions that corporate enthusiasts have taken their concept, even the authors of EI, including Goleman, would probably agree with these critics that EI is an entity of its own, outside of brains, good intentions, or even personality.

Where Corporate use of EI is Indisputably Legal, and Where It Is Quite Possibly Illegal

While many companies may err, and screen for EI during the interview process no matter what the prospective job might be (again, in technical or data-driven professions high EI has been concluded to indicate low performance), all would likely agree that nothing illegal exists in the use of EI during the hiring and onboarding process, as usually no disclosure of a non-apparent disability occurs before or during these stages by the prospective candidate. Like anything else containing protection under the ADA, disclosure is a must. No one can expect protection or accommodations at any stage of their careers without first having disclosed their condition with their employer, and then subsequently having requested reasonable accommodations.

However, if a disclosure of any developmental disability should occur during these hiring stages, it stands to reason that this changes the legality of using EI during their interview process.

But if a disclosed employee is well into their tenure at a particular company -- with a position that does not demand great socialization to complete the work -- and they are told that they must partake in one of these quantifiable exams, herein is where the real illegality might appear, especially if the result of the assessment would then be entered into their personnel file. Of the two employment law specialists I talked with (both of whom have written about EI's use in the workplace), neither could answer the question -- of legal vs. not legal -- directly, leaving me not with the feeing that they didn't know the law, but that this was new territory for them as well.

Granted, as one Senior Human Resources Leader from the financial services sector stated; "All tests have the possibility of resulting in a disparate impact against a given population." A test, after all, is intended to produce a distinction between those who score well, and those who do not. But certain examinations are known to have biases wherein one population, just based on their cultural upbringing, might score better than those from a more marginalized group (a similar controversy exists in the complaints African-Americans have made towards the New York City firefighter exam).

And according to six of the 46 HR and D&I professionals I contacted (all of whom requested anonymity) the love affair with EI is blinding their companies to even the concept that this might be illegal. As a result, their companies are implementing across the board testing with their entire employee base. No one I contacted suggested their company was in full knowledge of the legal boundaries and oddly enough, these individuals were contacted with regard to their hiring practices only. They themselves volunteered the correlation regarding existing employees.

Now one grey area that still remains is if the disclosed employee agrees to take the test, does it then become legal? Herein, there lies further room for legal exploration though it is safe to say that companies would be wise to refrain from asking these employees to participate.

Possible Explanations

The recent criticisms of EI in the aforementioned New York Times and Atlantic articles go far, but while they put new scrutiny on the praise bestowed on those with high EI scores, they refrain from criticizing the stigma given unconsciously to employees with low EI scores. Again, these individuals not only grow differently on an emotional level, but some also grow with fewer, or even more, emotions; so that the question of "what emotions exist" must be taken into the same consideration as "when do emotions enter into maturity." And under the current corporate climate, to say that a low EI scores contains no indirect negative consequences to the employee... is at best, ignorant.

But the reason why this problem persists is not because companies wish to ignore the ADA, or because anyone's trying to ostracize certain employees. The issue seems to exist obviously with an over-confidence in EI's value as an assessment tool, but also because the D&I strategies of most large companies are surprisingly antiquated -- this material just isn't even on their radar. D&I today should address several factors; race, gender, culture, sexual orientation, disabilities (both apparent, and non-apparent), and veterans; but very few large corporations' D&I leaders appear to address the scope of today's D&I. Though the greater job is by no means accomplished with racial and gender equality in the workplace, most of the D&I departments I've come across rarely focus outside these two. Certainly, there has recently been great progress with sexual orientation concerns, and some companies have for decades implemented successful accommodations for those with apparent disabilities. But proportionately, D&I efforts still seem immensely behind when it comes to the other four categories. Whether these D&I leaders wish to shape their strategies towards giving equal weight to every marginalized community -- a near impossibility -- or not, one professional bitterly believed that a lack of accountability contributed to his firm's D&I department remaining "narrow-minded." "Regarding our directives, (our D&I executives are) stuck in 1985 even if their language is present-day. No matter how unimaginative they truly are, without exception they all believe themselves to be 'Thought Leaders.' And trust me, they resent being asked to expand their thinking outside their own personal segment of D&I."

D&I departments may have no legal obligation to be inclusive, but it is still almost always their responsibility to be aware enough of the issues that they can contribute to keeping their companies in compliance with the law; however evolving or murky the law may currently be.

Finally though, some fault also has to lie with the disclosed employees who have these non-apparent conditions, as it is a very rare instance where these individuals both understand and acknowledge any existing, relative emotional underdevelopment caused by their diagnosis. Granted, this is no easy element of one's disability to own up to; but to ensure that they are protected, this population would be wise to make an excusal from such testing a written part of the reasonable accommodations that they request at the workplace.

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Michael John Carley is the Founder of GRASP, and the author of "Asperger's From the Inside-Out" (Penguin/Perigee), "The Last Memoir of Asperger Syndrome" (TBD), and numerous articles. In 2000, he and one of his two sons were diagnosed with Asperger's Syndrome. More information can be found at www.michaeljohncarley.com