A recent decision from the Eleventh Circuit Court of Appeals demonstrates difficult decisions that may face employers when they hire employees with Asperger’s syndrome.  Furcron v. Mail Centers Plus, LLC, No. 15-14595, 2016 WL 7321211 (11th Cir. Dec. 16, 2016).  Asberger’s is generally considered a “high functioning” form of autism.  Affected persons “have difficulty with social interactions and exhibit a restricted range of interests and/or repetitive behaviors.” https://www.autismspeaks.org/what-autism/asperger-syndrome

In Furcron, Myra Furcron was a female mailroom clerk, who claimed that she was sexually harassed by Daniel Seligman, a male mailroom clerk suffering from Asperger’s.  Furcron claimed that Seligman attempted to look down her shirt and at her underwear when she bent over.  She also claimed that Seligman would intentionally bump against her and rub his erect penis against her.  When she complained, Furcron’s supervisor responded “that Seligman meant no harm, and that his conduct should be tolerated because of his disability.”  Furcron, 2016 WL 7321211 at *2.  Although a trial court dismissed Ms. Furcron’s claims, the Eleventh Circuit found sufficient evidence of sexual harassment to warrant a jury trial.

Another case involving Asperger’s is Taylor v. Food World, Inc., 133 F.3d 1419 (11th Cir. 1998). In Taylor, the plaintiff suffered from Asperger’s and was a utility clerk who bagged groceries and assisted customers with their groceries.  He was terminated after three customers complained that he was “loud, overly friendly and overly talkative.”  He sued for violations of the Americans with Disabilities Act.  The Court found that one of the essential functions of the job was “the ability to carry out the tasks of the job without offending customers.”  Taylor, 133 F.3d at 1424.  Nevertheless, the Court found sufficient evidence to warrant a jury trial, because some managers and employees testified that they received no complaints and observed no inappropriate behavior.  Additionally, there were questions of fact regarding whether the questions asked by the plaintiff to customers were offensive or inappropriate.

A final case merits discussion, even though it deals with Tourette’s syndrome instead of Asperger’s.  Ray v. Kroger Co., No. 03-12919, 2003 WL 23018292 (11th Cir. 2003).  In Ray, a grocery store employee’s condition caused him to blurt out racial slurs on a daily basis.  As an accommodation to his disability, the store allowed him to pass out cards to customers explaining his condition, and transferred him to the night shift when fewer customers were in the store.  Nevertheless, three customers complained about bizarre and anti-social behavior, and a contractor complained about a perceived racial insult.  The Court affirmed dismissal of Ray’s ADA case, because he could not demonstrate that he could perform the essential function of “interacting with customers without insulting them.”

These cases seem to place employers in a Catch-22 situation.  If they discipline an employee for behavior related to their disability, they face the threat of a law suit for violating the Americans with Disabilities Act.  But, if they fail to discipline the employee, the employee could then commit acts (like the alleged sexual harassment in Furcron) that get the employer sued by other employees or third-parties.

Employer should proceed slowly if they encounter performance issues from employees suffering from Asperger’s, Tourette’s or other conditions that affect behavior.  Ray and Taylor both suggest that it may be possible to discipline such employees without violating the ADA.  To do so, however, employers need to establish, at a minimum that:  (1) the ability to interact with customers and co-workers without offending them is an essential function of the job; and, (2) abundant evidence existed demonstrating the employee’s inability to fulfill that essential function.