Retroactive Leniency is Not a Reasonable Accommodation

A recent decision out of the Tenth Circuit Court of Appeals tells us that a disabled employee is not entitled to retroactive leniency as a "reasonable accommodation." In other words, an employer is not required by federal law to excuse a serious violation of the employer's policies or work rules by a disabled employee, even when the employee claims that the violation was caused by the disability.

In DeWitt v. Southwestern Bell Tel. Co., 845 F.3d 1299 (10th Cir. 2017), Ms. Dewitt was a customer service representative who answered calls from customers requesting residential phone services. She had Type I diabetes and was insulin dependent. Throughout her employment at SWBTC, the company allowed Ms. DeWitt to take breaks to eat or drink to raise her blood sugar as needed.

Ms. DeWitt mistakenly left phone service on a customer's account after the customer cancelled the service. Known as a cramming violation, the failure to remove a service plan from a customer's account after the customer cancels the service is a violation of the SWBTC Code of Business Conduct and a terminable offense. Ms. Dewitt was suspended and placed on a Last Chance Agreement, whereby any further incidents of unsatisfactory performance would result in termination of her employment.

Approximately 2 months later, Ms. Dewitt hung up on two different customers while she suffered a severe drop in blood sugar at work. This time, she was terminated after a suspension meeting.

Thereafter, Ms. Dewitt filed suit against her employer and asserted claims of unlawful discrimination, failure to accommodate her disability, and retaliation. Her employer was granted summary judgment, which was affirmed on appeal.

It's always risky business terminating an employee who is in any protected category. How did this employer win the case? First, Ms. Dewitt was unable to show that SWBTC's reason for her termination—that she dropped two customer calls while on a Last Chance Agreement--was a pretext for disability discrimination. Second, the Court rejected Ms. Dewitt's argument that SWBTC discriminated against her by failing to accommodate her disability by excusing the disconnected calls that she claims were caused by her disability. On this issue, the Court stated that

Ms. DeWitt's accommodation claim fails because she did not request a reasonable accommodation to address concerns regarding the possibility of dropped calls; instead, she requested retroactive leniency for her misconduct. Specifically, Ms. DeWitt requested that SWBTC overlook that she hung up on at least two customers while on a Last Chance Agreement. Such retroactive leniency is not a "reasonable accommodation" as defined by the ADAAA. (emphasis added).

Bottom line: The Americans With Disabilities Act does not require covered employers to reasonably accommodate an employee's disability by overlooking past misconduct—irrespective of whether the misconduct resulted from the employee's disability. The Equal Employment Opportunity Commission's Enforcement Guidance makes clear that the requirement to provide reasonable accommodations under the ADAAA is "always prospective," and that "an employer is not required to excuse past misconduct even if it is the result of the individual's disability." U.S. Equal Opportunity Employment Comm'n, Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act at No. 36; see also id. at No. 35 ("An employer never has to excuse a violation of a uniformly applied conduct rule that is job-related and consistent with business necessity).