If an employee’s disability causes him to sexually harass co-workers, the Americans with Disabilities Act does not require the employer to turn a blind eye, the 2nd U.S. Circuit Court of Appeals ruled in McElwee v. County of Orange, No. 11-4366-cv (2nd Cir. Nov. 15, 2012).
James McElwee, an individual with Pervasive Developmental Disorder, worked as a volunteer at Valley View Center for Nursing Care and Rehabilitation, a nursing home operated by Orange County, NY. His mother explained that his disability sometimes caused him to behave inappropriately but the employer was unable to tolerate his actions. He was eventually fired for sexual harassment.
McElwee filed suit, alleging that he was entitled to an accommodation and that his termination violated ADA and Section 504 of the Rehabilitation Act.
The U.S. District Court for the Southern District of New York granted summary judgment for the county and McElwee appealed, but the 2nd Circuit dismissed his claims.
Title II and Section 504 Claim
To bring a Title II or Section 504 claim, an individual must show that he has a disability and is qualified — with or without a reasonable accommodation — to participate in the entity’s services. He then must show that he was denied that opportunity because of his disability.
On appeal, the 2nd Circuit assumed, for the sake of argument, that McElwee had a disability.
Qualified Individual with a Disability
Moving on to the qualified question, the court considered McElwee’s argument that he was qualified to participate in Valley View’s volunteer program because he adequately performed his volunteer duties for years. The county, on the other hand, argued that McElwee’s “longstanding course of inappropriate conduct with numerous female employees, nursing students, and visitors to the facility” disqualified him from serving as a volunteer.
The extent to which McElwee’s behavior, which he attributed to his disability, disqualified him from participating in Valley View’s volunteer program is perhaps more easily addressed by determining whether a reasonable accommodation for his disability existed, the court said.
Whether an Accommodation Was Available
McElwee argued that he would have been able to continue volunteering had Valley View accommodated his impairment. It should have worked with him to help him behave more appropriately in the workplace and educated his co-workers about his disability so they would be more tolerant of his behavior, he said.
The appeals court, however, disagreed. Inappropriate behavior “is indisputably a legitimate non-discriminatory reason for dismissing McElwee from the volunteer program, even if the behavior resulted from his disability,” the 2nd Circuit said.
Furthermore, neither of McElwee’s suggested accommodations were reasonable, the court determined.
McElwee offered no evidence that further therapy would help him refrain from inappropriate conduct and meet the essential eligibility requirements of the program in the near future.
The second accommodation suggestion is also unreasonable because “[r]equiring others to tolerate misconduct … is not the kind of accommodation contemplated by the ADA,” the court said. It would be an undue hardship for Valley View to have to tolerate harassment of its employees, volunteers and visitors.
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