How many times has this happened to you – you fire an employee, only to have them divulge that they have a disability, that the disability caused their poor performance/misconduct and that an accommodation would remedy the problem?
Does the ADA require the employer to rescind the termination and give the employee another chance? The courts say no, as we saw last week in a case from a federal appeals court.
You Can’t Fire Me
Janna DeWitt worked for Southwestern Bell as a customer service representative. When she got the job in 1997, she told the company that she had Type I diabetes and needed to monitor her blood sugar levels regularly. The company had no problem allowing her to take breaks and have snacks in order to raise her blood sugar levels. They also granted her multiple medical leaves associated with her health condition.
The main part of DeWitt’s job was to answer calls from customers regarding their telephone service. In 2010, she mistakenly allowed a customer’s service to continue despite the fact that the customer had already called to cancel. This apparently is a substantial violation of company policies, and DeWitt received a one-day disciplinary suspension along with a Last Chance Agreement that promised termination if she committed another such infraction.
Just two months later, DeWitt was charged with hanging up on two different customers, again a serious infraction. DeWitt claimed she did not remember the incidents because of low blood sugar episodes when those calls came in. Nevertheless, she was fired, prompting her to sue for violation of the Americans with Disabilities Act (ADA). Among her claims, DeWitt asserted that the company failed to accommodate her by excusing the dropped calls that resulted from her low blood sugar episodes.
Oh Yes I Can
After the lower court dismissed the claim, DeWitt appealed to the Tenth Circuit Court of Appeals. However, the Tenth Circuit upheld the dismissal on the grounds that this sort of “retroactive leniency” is not a reasonable accommodation required under the ADA. Specifically, they explained that the law “does not require employers to reasonably accommodate an employee’s disability by overlooking past misconduct—irrespective of whether the misconduct resulted from the employee’s disability.”
The Circuit Court based their decision in part upon the Equal Employment Opportunity Commission’s (EEOC) Enforcement Guidance on Reasonable Accommodation. The Guidance explains that the ADA is “always prospective” and that “an employer never has to excuse a violation of a uniformly applied conduct rule that is job-related and consistent with business necessity.”
In addition, they observed that other Circuit Courts of Appeal had ruled similarly, including the Eighth Circuit (in which Minnesota sits) who declared that requests like DeWitt’s are not disability accommodations but rather, “a second chance to better control her treatable medical condition. That is not a cause of action under the ADA.”
Therefore, even though the employer knew of the Dewitt’s underlying disability, the fact that she never requested an accommodation that might assist her in not dropping calls meant that the termination for such misconduct was appropriate.
Bottom Line
This is a great reminder for employers who often must respond to employees trying to save their jobs at the last second by blaming their performance deficiencies on medical conditions.
Of course, this is not a free pass for employers to ignore medical issues affecting an employee’s job performance. If an employee receiving disciplinary action short of termination divulges the existence of a medical condition, the employer must act prospectively by engaging in the interactive process to determine whether and to what extent an accommodation might be required going forward.
Even if the employee has not specifically asked for an accommodation at this point, the employer should still inquire about a possible need for accommodation so that they can not be cited later for ignoring the disability. However, if the employee waits until the termination meeting to request an accommodation for the cause of their poor performance or misconduct, the termination may proceed.