ADA & Disabilities, Leave Policy/Compliance

Is Retroactive Leniency a Reasonable Accommodation for Kansas Employee?

Does an employer have to overlook past mistakes that were made because of an employee’s disability? The U.S. 10th Circuit Court of Appeals— which covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming—recently heard such claims.Kansas

Recently, the court held that an employee’s suggested accommodation of retroactive leniency was not reasonable within the meaning of the Americans with Disabilities Act (ADA). The court also rejected her claims of disability discrimination and retaliation under the Family and Medical Leave Act (FMLA).

Employee Fired for Hanging Up On Customers

“Sheryl” was a 13-year employee of Southwestern Bell’s call center in Wichita. She has type 1 diabetes and may experience fatigue, confusion, and poor coordination when her blood sugar levels are low. Throughout her employment, Southwestern Bell allowed her to take breaks as needed to eat or drink to raise her blood sugar.

In 2010, Sheryl mistakenly failed to remove a service plan after a customer canceled the service, known as a cramming violation in the industry. Sheryl was suspended and warned that even one more incident of poor performance could lead to dismissal. Two months later, she suffered a severe drop in her blood sugar levels while at work, and her supervisor saw her hang up on at least two customers. Sheryl told her supervisor that she didn’t remember the calls and was experiencing dangerously low blood sugar levels at the time.

Southwestern Bell suspended Sheryl the same day. A week later, the company conducted a meeting in which she offered her explanation of what happened. Five days after the meeting, Southwestern Bell terminated her employment for hanging up on two customers in violation of company policy.

Employer Not Required to Excuse Past Conduct

Sheryl sued and lost in district court. She argued that Southwestern Bell should have excused the disconnected calls or at least reduced her discipline because the incident was caused by her disability. The court rejected her argument, and the appeals court upheld the lower court’s decision.

The appeals court noted that the ADA envisions the employer and employee participating in an interactive process to come up with a reasonable accommodation for a known physical or mental limitation. But before the employer has a duty to do anything, the employee must put it on notice by making a request. The reasonable accommodation requirement always looks ahead and doesn’t require an employer to look backward and excuse past misconduct, even if it resulted from the employee’s disability.

The Equal Employment Opportunity Commission (EEOC) submitted a brief supporting Sheryl’s position. But the court quoted the EEOC’s own fact sheet, which advises that an employer isn’t required to excuse performance problems that happened before the employee’s accommodation request.

In this case, Sheryl didn’t request a reasonable accommodation to address the possibility of dropped calls, and she didn’t report that she wasn’t feeling well the day of the dropped calls. In other words, Southwestern Bell provided Sheryl a reasonable accommodation (generally allowing her to take breaks to prevent the debilitating effects of diabetes), but in this instance, she failed to take advantage of the already existing accommodation. Under the circumstances, Southwestern Bell wasn’t required to give her a second chance after an otherwise termination-worthy offense.

Employer’s Honest Belief Matters

The court ruled that it didn’t matter whether Sheryl hung up on the two customers intentionally as long as the employer honestly believed she did. There was evidence in the record showing it is difficult to accidently hang up on a customer, and Sheryl provided no evidence to cast doubt on the employer’s belief that she hung up intentionally. The court also found it significant that Southwestern Bell gave her an opportunity to tell her side of the story, which defeated her allegation of an unfair investigation.

Sheryl did provide undisputed evidence that a Southwestern Bell sales manager targeted her for dismissal because she used FMLA leave. But the sales manager wasn’t involved in the termination decision, and there was no evidence that the decision makers were aware of the manager’s hostility toward Sheryl. The court noted that a supervisor told the sales manager that he disapproved of her attitude toward employees who used FMLA leave.

Bottom Line

This case shows that an employer may choose to overlook a past incident caused by an employee’s disability, but you aren’t legally required to do so if no accommodation was requested before the incident occurred.

This ruling clarifies that an employee must first request a reasonable accommodation before you have a duty to engage in the interactive process to come up with an accommodation. In addition, this case illustrates the steps Southwestern Bell took to avoid liability by following a documented progressive discipline procedure, conducting a fair investigation that gave the employee an opportunity to tell her side of the story, and showing that management condemned hostility toward employees who used FMLA leave.

Eric Turner is an employment lawyer with Foulston Siefkin LLP. You can contact him at 913-253-2176 or