No ADA remedy for terminated autistic volunteer

The Court of Appeals holds that the Amended Americans with Disabilities Act does not prevent a public nursing home from terminating the volunteer duties of an autistic adult accused of making women in the workplace feel uncomfortable through alleged sexual leering and other behaviors that management deemed erratic and inappropriate.

The case is McElwee v. County of Orange, decided on November 15. I briefed and argued the case. The plaintiff is a 35 year-old man who helped out around the home through its volunteer program. (The case is therefore brought under Title II and not Title I, which covers employment discrimination). Although plaintiff had volunteered there for many years, a female employee complained about his behavior in 2009, and his supervisor investigated and discovered that plaintiff had made employees feel uncomfortable over the years (though no one had lodged any formal complaints). Plaintiff was thus released from the program.

The Court of Appeals assumes that plaintiff is disabled under the Amended ADA, which provides an expanded definition of "disability" in rejecting narrow Supreme Court rulings on the issue. But the Court rejects plaintiff's argument that he was entitled to a reasonable accommodation. Along the way, suggesting this case raises some new issues, the Second Circuit (Chin, Raggi and Carney) cites a number of district court cases as well as extra-Circuit rulings. But the Court also borrows from Title III discrimination cases in holding that the employer is not liable for not accommodating the plaintiff when no such accommodation can work under the circumstances.

Plaintiff argued that management "should have (1) worked with him and his therapist to help him behave more appropriately in the workplace; and (2) worked with the Valley View employees who complained about him to educate them about McElwee's disability so that they would be more tolerant of his behavior." Plaintiff also argued that defendant should have known that he was harmless and did not intend to sexually harass anyone. The Court disagrees. These proposals would excuse past misconduct and, even if his behavior resulted from his disability, the accommodations would not work. "The first accommodation McElwee proposes is that Valley View should have spoken to his therapist or 'encourage[d] him to obtain particularized therapy to help him behave more appropriately in the workplace and . . . better interact with colleagues.' Nothing in the record before us, however, indicates that further therapy would have helped McElwee to refrain from his inappropriate conduct, either immediately or at any time in the near future." Moreover, any proposed accommodation that involves educating co-workers about his disability won't work, either. "This proposed accommodation does not even purport to address McElwee's inappropriate behavior; instead, it simply demands that others be more tolerant. Requiring others to tolerate misconduct, however, is not the kind of accommodation contemplated by the ADA."