Michael S. Powers

Michael S. Powers Associate

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Retroactively Forgiving Errors Allegedly Made Due to Disability does not Constitute a Reasonable Accommodation under the ADA

Under the typical reasonable accommodation scenario under the Americans with Disabilities Act (“ADA”), an employee requests an accommodation for his/her condition from the date of the request forward. On January 18, 2017, in DeWitt v. Southwestern Bell, Case No. 14-3192 (10th Cir. 2017), the court rejected the plaintiff’s and the EEOC’s argument that the employer should have retroactively accommodated her disability by forgiving her prior poor performance. Instead, the Court held the employer did not violate the ADA for firing the plaintiff due to her dropped calls and other mistakes. In affirming the lower court’s grant of summary judgment, the 10th Circuit reported that it joined four other circuits in holding that accommodations are prospective and cannot be applied retroactively to excuse prior acts of misconduct or poor performance.

Plaintiff DeWitt had argued that her dropped calls and other mistakes were due to her disability – Type II insulin-dependent diabetes, which can cause debilitating results due to difficulty maintaining appropriate blood sugar levels. Already on a last chance agreement from a former performance incident, DeWitt was terminated for dropping two customer calls during the same shift, though she denied any recollection of having done so. Her employer was aware of her condition and already had granted her accommodations in the form of additional meal and bathroom breaks. Here, she alleged the employer should not have punished her for her dropped calls and that doing so constituted illegal discrimination in violation of the ADA. Specifically, she alleged that she requested an accommodation from the employer in the form of forgiving her prior errors which she attributed to her blood sugar problems. Southwestern Bell argued that the accommodation sought was unreasonable and the court agreed.

The EEOC argued that DeWitt’s mistakes were more properly characterized as poor performance rather than violations of work rules, and that they were therefore entitled to different treatment under the ADA. The court was not swayed by that argument, noting that even if the conduct were to be called poor performance, the law allows employers to hold workers with disabilities to the same work standards as any other workers. Basically the EEOC’s argument amounted to a distinction without a difference, in that even if the conduct was to be deemed some lesser type of conduct, the employer’s rights with regard to that conduct were exactly the same. The EEOC also argued that DeWitt was merely waiting until after the dropped calls to request further accommodation. The Court found that there was nothing to suggest that Southwestern Bell should be forced to forgive the employee’s violations merely because she later attributed them to her disability.

It also is important to note the court held that DeWitt’s supervisor honestly did not believe her explanation that her dropped calls were due to her medical condition. Further, the employer did not believe that DeWitt really had no recollection of dropping the calls, leading to the conclusion that doing so must have been intentional. In so holding, the court relied on the “good faith belief” rule, which provides that a good faith belief that an employee engaged in misconduct is a defense to a claim of discrimination unless the employee can prove otherwise. The court noted that it was the employer’s assessment of the facts that was relevant to the appropriateness of the punishment, not the employee’s “alternative facts.”

This holding is consistent with the notion that an employee should not have carte blanche to commit errors, break rules or perform poorly simply because he or she has a disability. To have held otherwise would create a very difficult situation for employers whereby enforcing any work rules or performance standards against an employee could result in a finding of disability discrimination.

DeWitt’s attorneys implied that this was not the end of the matter, though at this point it would require the United States Supreme Court accepting the matter for review to have any chance of progressing further. For the time being, the consensus appears to be that forgiveness of past performance errors is not a reasonable accommodation because accommodations must be prospective in nature.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters, including defense against discrimination claims, for almost sixty years, and are available to discuss these issues and others.  As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

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