No Reasonable Accommodation When Disability Results in Harassment

James McElwee is in his mid-30s with a neurodevelopmental disorder formally classified as Pervasive Developmental Disorder - Not Otherwise Specified (PDD-NOS) and informally called an autism spectrum disorder.

In 1996, McElwee began participating in a volunteer program at Valley View Center for Nursing Care and Rehabilitation, where he performed janitorial and housekeeping duties and transported nursing home residents to religious and social events. McElwee competently performed his assigned tasks, and the volunteer program improved his self-esteem.

In 2009, McElwee was dismissed from the volunteer program after engaging in erratic and harassing behavior toward female staff members.

During an internal investigation, five women reported that McElwee had behaved inappropriately toward them, and a security guard reported that he had seen McElwee bothering nursing students and visitors. Based on her investigation, Assistant Administrator Robin Darwin concluded that McElwee was a potential liability for Valley View. After consulting with Valley View's Facility Administrator, the County of Orange Executive's Office, and the County Law Department regarding the results of her investigation, Darwin sent McElwee a letter, stating that his volunteer services were no longer needed.

McElwee sued, alleging that the County had violated the ADA and the Rehabilitation Act by dismissing him from the volunteer program without providing him a reasonable accommodation for his mental impairment.

Following discovery, the County moved for summary judgment. The district court granted the County's motion, holding that McElwee was not "'substantially limited' in the major life activity of interacting with others and therefore was not "disabled" under the ADA or the Rehabilitation Act.

The Second Circuit Court of Appeals affirmed summary judgment, but on different grounds: The appellate court concluded that McElwee failed to present sufficient evidence to that he was discriminated against because of his disability.

McElwee's behavior was indisputably a legitimate, non-discriminatory reason for dismissing him from the program. The court reasoned that the extent to which McElwee's behavior -- which he attributed to his disability -- disqualified him from participating in Valley View's volunteer program was more easily addressed by asking whether a reasonable accommodation for his disability existed.

McElwee claimed that Darwin should have worked with him to help him behave more appropriately, and explained his disability to the affected Valley View employees so they would be more tolerant of his behavior. The Second Circuit disagreed, finding that his solutions would have created an undue hardship.

First, the court observed that McElwee's proposed accommodation for Valley View to work with him to obtain additional therapy was unreasonable as a matter of law because he failed to offer any assurance that it would have enabled him to meet the essential eligibility requirements of Valley View's volunteer program in the near future.

Second, the court noted that requiring others to tolerate misconduct was not the kind of accommodation contemplated by the ADA.

Because accommodating McElwee's request would have imposed an undue hardship on Valley View, the Second Circuit affirmed summary judgment.

Related Resources:

• McElwee v. County of Orange (Second Circuit Court of Appeals)
• What is a Reasonable Accommodation? (FindLaw's Free Enterprise)
• Reasonable Accommodation Can't Eliminate Essential Functions (FindLaw's Eighth Circuit Blog)