Tenth Circuit Rejects EEOC Position on Retroactive Accommodation of Performance Issues

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For years, the Equal Employment Opportunity Commission (EEOC) and federal courts have acknowledged that employers do not have to excuse employee disciplinary violations because the employee later attributes such conduct to a disability. For example, if an employee is caught drunk at work, the employer is not restricted from taking disciplinary action because the employee demonstrates that he or she has alcohol dependency issues. Last month, the Tenth Circuit Court of Appeals rejected an attempt by the EEOC to create a different standard for employee performance problems later claimed to have been the result of a medical condition.

In DeWitt v. Southwestern Bell Telephone Co., the employer discharged the plaintiff for a workplace violation involving excessive dropping of calls. She responded to this action by claiming that her conduct related to her diabetic condition, and requesting a retroactive accommodation by the employer to excuse the work rule violations on this basis. The employer rejected this request on the grounds that the ADA does not require accommodation of disciplinary rules violations.

The Tenth Circuit agreed, affirming dismissal of the claim. The court noted EEOC guidance and federal court precedent stating that the ADA does not mandate excusing employee conduct violations, even if the transgressions are the result of the disabling medical condition. In an amicus brief, the EEOC argued that the work rule here was really a performance metric rather than a disciplinary rule. The agency advocated a separate standard with regard to retroactive accommodation of performance problems later attributed by the employee to a disabling medical condition.

The Tenth Circuit rejected this argument, first concluding that the violations involved rules governing customer interaction and were therefore disciplinary in nature. The court also stated that even in situations involving poor performance, employers can hold disabled persons to the same standards as other employees. Under the ADA, disabled persons must be able to perform the essential functions of the job. If advised in advance of a disability that interferes with such performance, the employer may be required to provide accommodations, but those accommodations must result in the employee’s ability to perform those functions. Employers are never required to excuse disabled employees from performing essential job functions.

In this case, the employer was aware of the employee’s medical condition and had provided accommodations. The plaintiff claimed that she needed additional accommodations, and that the employer should have excused the dropped calls once she made it aware of this need. However, the court concluded that the employee bears the responsibility of informing the employer in advance of the need for additional accommodations. She could not wait until she was subject to disciplinary action to make the employer aware of this need and to request accommodation.

Employers frequently face situations where employees subject to termination or discipline claim a medical condition as the reason for the work problems. While the ADA may require prospective accommodation based on an employee’s disability, it does not require employers to excuse past conduct simply because the employee attributes it to their medical condition.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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