Consider: Employee/volunteer/Intern… with a disability is sexually harassing his or her coworkers. The disability is such that the employee/volunteer is unlikely to stop. The hiring authority terminates the employee/volunteer and the employee/volunteer sues the hiring authority for disability discrimination. This sounds very much like what could’ve been the case with the former Mayor of San Diego, but he never claimed having a disability and he wound up resigning after reaching an agreement in mediation. In fact, these facts are not the Mayor of San Diego at all, rather they are from an actual case, McElwee v. County of Orange, 700 F.3d 635 (2d Cir. 2012).

In McElwee, the plaintiff served as a volunteer, starting in 1996, at Valley View Center for nursing care and rehabilitation, a federally funded entity operated by Orange County. The plaintiff had pervasive developmental disorder, a disorder on the autism spectrum. His IQ was 79, lived with his mother, never had a job, and will always require assistance in managing money and completing non-routine tasks. In November 2009, Valley View received a complaint from employee saying that the plaintiff was sexually harassing her. An investigation ensued, and that investigation revealed a total of five women reporting that the plaintiff had behaved inappropriately towards them and a security guy reporting that he has seen the plaintiff bothering nursing students and visitors. Further, when the plaintiff was confronted about the allegations, he exhibited disturbing behaviors. As a result, in December 2009, Valley View terminated the plaintiff. The plaintiff then filed suit under title II of the ADA (title I was not a possibility since he was not an employee. Title II was, since the place where he volunteered was run by the county), and the Rehabilitation Act. He alleged that the dismissal was wrong and also that he was not reasonably accommodated.

The Second Circuit was having none of it. First, the Second Circuit noted that workplace misconduct is a legitimate and nondiscriminatory reason for terminating employment even when the misconduct is related to a disability (emphasis mine).

Second, the Second Circuit said that a requested accommodation that excuses past misconduct is unreasonable as a matter of law.

Third, the Second Circuit noted that whether a person was protected under the ADA and the Rehabilitation Act meant that a person had to have both a disability as well as be qualified. A person is a qualified individual with a disability under title II of the ADA if he meets the essential eligibility requirements for participating in that program with or without reasonable accommodations. That means knowing the essential eligibility requirements for the program. The Second Circuit said that the essential eligibility requirements of volunteering at Valley View meant that a person not only has to be mentally and physically able to perform the task but also be emotionally able to conduct himself in an appropriate manner when dealing with resident, supervisors and other staff members. In other words, it would be fair to say that being able to interact with others with or without reasonable accommodations/modifications was an essential eligibility requirement of participating in the program.

Fourth, the court said that the plaintiff’s claim was as much about getting his past misconduct excused as it was about requesting a future accommodation. The court noted that the plaintiff admitted that he followed and stared at female employees and that his conduct was objectively unreasonable. Plaintiff also admitted that when confronted about his behavior he became obsessed and made disturbing statements and gestures. The Second Circuit said that such inappropriate behavior was a legitimate nondiscriminatory reason for dismissing plaintiff from the volunteer program even if the behavior resulted from his disability. The court said that such a holding was consistent with the mandate of the ADA which is all about putting people with disabilities on an even playing field as those without disabilities but not giving people with disabilities any kind of preference.

Fifth, the plaintiff suggested two accommodations. The Second Circuit said both of those suggestions were unreasonable as a matter of law. First, plaintiff said that Valley View should have spoken to a therapist or encourage him to get therapy to behave more appropriately in the workplace. However, the Second Circuit said that accommodation was unreasonable as a matter of law because the evidence was such where even if the accommodation had been offered, he still would not have been able to meet the essential eligibility requirements of the volunteer program anytime in the near future.

Sixth, the other accommodation was for Valley View to work with the women who complained about his behavior. That is, demand that others be more tolerant. The Second Circuit found this unreasonable as a matter of law as well because requiring others to tolerate misconduct is not the kind of accommodation the ADA contemplates. Also, the court said that employees, volunteers, and visitors should not be required to tolerate harassing behavior and that allowing such behavior would constitute an undue hardship.

Takeaways: There are several important things you can take from this case. First, there is a big difference between the disability and any conduct that is associated with it. In other words, workplace misconduct is a legitimate and nondiscriminatory reason for terminating employment even when the misconduct is related to a disability. That said, that does not mean that an employer/program/hiring authority has the ability to refuse to deal with the disability or refuse to accommodate the disability. Second, depending upon the job, program, or activity, interacting with others could very well be an essential function of the job, program, or activity. Certainly, interacting with others would be an essential function of the job for any politician. Third, a person has to have a disability as well as be a qualified individual in order to be protected under the ADA. Fourth, there may be certain suggested accommodations that will be unreasonable as a matter of law, such as an accommodation that simply excuses past misconduct or an accommodation that tolerates harassment in the workplace. Finally, this is a case where the hiring authority/program/employer focused on the conduct rather than on the disability. However, an employer/program/hiring authority does want to be careful so that they do not focus on disability rather than on the conduct (See Miners v. Cargill Communications Inc. 113 F.3d 820 (8th Cir. 1997), where an employer ran into trouble because they focused on the perceived disability of alcoholism rather than on the misconduct of drinking on the job)).

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