An employee commits an offense that would justify termination. But, she asks for another chance because the misconduct was not intentional; it was caused by a diabetes induced severe drop in blood sugar that caused confusion and memory loss. Must the employer be more lenient on an employee with a disability as a form of reasonable accommodation?
This very question the subject of a recent decision from the U.S. Court of Appeals for the Tenth Circuit. In DeWitt v. Southwestern Bell Telephone Co. (1/18/2017), the plaintiff was a customer service representative at SWBT’s Wichita, Kansas call center. She suffered from insulin dependent Type I diabetes. Whenever her blood sugar was low, DeWitt could experience various symptoms, including shakiness, fatigue, lethargy, confusion, and poor coordination. She told her employer about the condition, and the company allowed her to take breaks to eat or drink as needed to raise her blood sugar.
At the time of her termination, DeWitt was already on a last chance agreement, which meant that any incident of poor performance or misconduct could lead to termination. One day she suffered a severe drop in blood sugar that she was not able to stabilize even after eating food and drinking juice. She experienced lethargy, disorientation, and confusion, and was “unable to communicate with anyone.” While experiencing this condition, she “dropped” two calls, which meant she hung up on two different customers.
The company had recordings of the two dropped calls, but DeWitt claimed to have no memory of them because of her diabetic induced condition. SWBT terminated her employment because DeWitt’s supervisor believed she intentionally hung up on the customers, and it was not a result of her diabetic induced low blood sugar. DeWitt sued under the ADA, claiming she was terminated because of a disability, and that the company should have excused the dropped calls as a reasonable accommodation.
Court’s Analysis of ADA Issues
This case presented two important ADA issues. First, what if the supervisor was wrong in concluding the plaintiff intentionally hung up the customers, and thereby unfairly discounted the potential the disability played a role? In granting summary judgment to SWBT on this question, the court relied upon a rule known as the “honest belief” doctrine. That means, if the decision maker honestly holds a belief and acts on it in good faith, it does not matter whether in the end the belief is actually true. In this case, the court found many objective reasons to confirm the supervisor’s belief the plaintiff acted intentionally. They included the fact that it is very difficult for a customer service representative to accidentally hang up on a customer because terminating a phone call is a two-step process that required two separate mouse clicks. The supervisor also found the plaintiff operated successfully the rest of the day, and did not take a break from accepting calls, which she was permitted to do if she felt ill. No fellow employee witnessed the plaintiff’s disoriented condition despite being in close proximity to her. Finally, the supervisor concluded the last chance agreement motivated her to not be completely forthright about what happened with the dropped calls.
The second issue involves the employer’s obligation to accommodate. DeWitt argued the company should have accommodated her disability by excusing the disability related misconduct. The court concluded, however, that an employer’s obligation to accommodate a disability is prospective; there is no requirement to overlook past misconduct as an accommodation, even if disability related. The employer’s duty to provide a reasonable accommodation is triggered by an employee’s adequate request for accommodation. Although the plaintiff had alerted the employer to her diabetes, that was not sufficient because she did not request an accommodation concerning the specific behavior at issue, namely, the possibility of dropped calls.
Despite the favorable employer outcome in DeWitt, discipline or termination for misconduct or performance that is potentially disability related is still a risky proposition. There are several important things to keep in mind when presented with this situation:
- The employer should not speculate about whether a disability contributed to the misconduct or poor performance; only if the employee raises the issue should the employer consider it.
- If the first time the employer learns about a disability is during the discipline or termination process, there is no need to accommodate for what happened in the past; but, if the employee remains employed, the employer should discuss the need for future accommodations.
- If the employer is already accommodating the employee’s disability is some way, the employer must consider whether the parties contemplated that the disability would cause or contribute to the specific misconduct or performance issues.
- The employer must carefully consider whether the misconduct or performance issue is actually related to the disability. But, you cannot rely upon speculation; there must be objective facts on which you rely to make this determination
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