Disciplining an Employee with a Disability: A Legal Minefield?
By Kelly A. Hayden, JD, Chief Legal Counsel
Published March 14, 2017
Employers are often concerned that disciplining an employee with a known disability will lead to litigation. Can the employee successfully claim that the misconduct or poor performance was a result of a disability? How can an employer avoid these types of claims? The United States Court of Appeals for the Tenth Circuit (covering Oklahoma, Kansas, New Mexico, Colorado, Wyoming and Utah) recently addressed this issue in DeWitt v. Southwestern Bell Telephone Company, No. 14-3192 (January 18, 2017).
In this case, the employee was a diabetic who experienced symptoms such as confusion, fatigue and lethargy when her blood sugar dropped. As a customer service representative, her job description required her to treat customers in a “professional and courteous manner.” A few months prior to her termination, she was placed on a last chance agreement due to a “cramming” violation. This violation occurs when the customer representative fails to turn off a client’s service after a cancellation order. It is considered a very serious violation and can result in termination.
A few months after placement on the last chance agreement, the employee hung up on two customers. During an investigation, the employee stated that she did not remember taking part in the calls. She claimed that she failed to take a break that day to manage her diabetes and had experienced a severe drop in her blood sugar at that time.However, further investigation by the company revealed that just prior to the dropped calls, the employee had been instant messaging in a completely normal manner with a coworker. Therefore, the company determined that she hung up on the customers intentionally and terminated her.
Subsequent to her termination, the employee filed a lawsuit under the Americans’ with Disabilities Act (ADA) claiming that the company failed to provide a reasonable accommodation for her disability. The Equal Employment Opportunity Commission (EEOC) filed a “friend of the court” brief in support of her claim.
The Court of Appeals pointed out that the EEOC’s own guidance states that an employer may “apply the same [performance standards] to an employee with a disability that it applies to employees without disabilities.” Therefore, as long as the employee was treated the same as non-disabled employees who hung up on customers (AND were on a last chance agreement), her discipline and subsequent termination were legal.
The court also noted that an employer is not obligated to stop its disciplinary process just because an employee raises the need for an accommodation after the fact. “Retroactive leniency” as the court referred to it, is NOT a reasonable accommodation. Last, as to whether the employer discriminated against the employee by terminating her, the court stated “It is not our role to second guess an employer’s assessment of the gravity of workplace misconduct.”
When disciplining an employee (or considering an employee for termination), the employer should consider how it has treated “similarly-situated employees.” In other words, ask yourself, “When others have engaged in similar conduct, what have we done?” And, if you intend to treat the employee better or worse, have a reason why the employee is NOT similarly situated. (For example, we normally terminate employees after the fifth tardy, but this employee’s fifth tardy came on the day of an ice storm, so we decided to be lenient to all employees regarding attendance on that day.) Further, remember that an employee cannot normally use a disability or medical condition as a “shield” to protect him/her from discipline or termination. If an employee requires an accommodation, it is his/her responsibility to discuss this with the employer prior to receiving discipline or a poor performance evaluation.
Members with questions about accommodation can feel free to contact our HR Hotline at 800-448-4584 or firstname.lastname@example.org.