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How To Analyze Your Obligations Under The ADA When Dealing With Misconduct That May Have Been Caused A Disability

Published by and on August 18, 2017

Employers may not have to excuse workplace violations, even if they are caused by the employee’s disability.

Employers may not have to excuse workplace violations, even if they are caused by the employee’s disability.

An employer may discipline an employee if it honestly believes the employee’s misconduct was not a result of his or her disability, according to the Tenth Circuit. An employer is also not required to excuse an employee’s workplace transgressions just because they may be caused by the employee’s disability. In Dewitt v. Southwestern Bell Telephone Company, the employee —- Janna DeWitt —- suffered from diabetes and her employer, Southwestern Bell Telephone Company (SWBTC), allowed her to take breaks as needed to eat or drink to raise her blood sugar. DeWitt also took intermittent FMLA leave for her condition.

After having been with the company for almost 13 years as a customer service representative, DeWitt violated SWBTC’s code of business conduct and was placed on a “Last Chance Agreement.” Two months after her code of conduct violation, DeWitt was observed hanging up on at least two customers. When confronted about the dropped calls later that day, DeWitt replied that she did not remember the calls and that she had been experiencing dangerously low blood sugar levels, causing her to experience lethargy, disorientation, and confusion. DeWitt again repeated this explanation for her behavior during a later meeting to discuss the incident. SWBTC terminated DeWitt for hanging up on the customers, which was a violation of both the business code of contact and her Last Chance Agreement.

DeWitt sued SWBTC under the Americans with Disabilities Act (ADA) for disability discrimination and failure to accommodate. On appeal, the Tenth Circuit affirmed summary judgment on DeWitt’s disability discrimination claim and found that SWBTC had articulated a legitimate business reason for DeWitt’s termination —- DeWitt’s misconduct of hanging up on the customers —- and that DeWitt had failed to show this reason was a pretext for discrimination. In making this finding, the Court emphasized that the focus is limited to whether the decision maker honestly believed her reason for terminating DeWitt, not why DeWitt disconnected customer calls or whether the decision maker’s action was wise or correct. The decision maker in this case testified that she believed DeWitt intentionally dropped the calls and provided an explanation for this belief.

The Tenth Circuit also affirmed summary judgment on DeWitt’s failure-to-accommodate claim, in which she alleged SWBTC failed to accommodate her by excusing the disconnected calls she contends were caused by her disability. The Court held that the ADA does not require employers to provide the retroactive accommodation of overlooking past misconduct, regardless of whether the misconduct was actually caused by the employee’s disability. In coming to this conclusion, the Court made note of the late timing of DeWitt’s accommodation request, which came after disciplinary proceedings had already been initiated. Therefore, DeWitt could not succeed on her accommodation claim.

Welter Insight

This decision clarifies that employers may not be required to halt disciplinary proceedings just because an employee has made a last-minute accommodation request, nor may they required to accommodate an employee by excusing past work transgressions. Nonetheless, employers should continue to investigate and document the employee’s misconduct and follow their established disciplinary policies and procedures. Additionally, when an employee requests accommodation, employers should continue to engage in the interactive process with the employee and document these efforts.

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