For more information please call  800.727.2766


Employer Not Required to Provide Accommodation Retroactively

Janna DeWitt worked as a customer service representative for Southwestern Bell beginning in 1997. She had Type 1 diabetes, which as she informed her supervisors, required her to monitor her blood sugar levels throughout the day. Diabetes could cause her to develop lethargy, confusion, fatigue, and other physical symptoms and her supervisors were advised of these possibilities. Southwestern Bell allowed her to take breaks to eat or drink something as needed to raise her blood sugar level. She also was authorized to take medical leave on several different occasions in 2009 and 2010.

However, Southwestern Bell started documenting some deficiencies in Ms. DeWitt’s job performance beginning in 2010. She left a service on a customer’s account after the customer had cancelled the service. A possibly terminable offense identified in the employee handbook, Ms. DeWitt was suspended and issued a “Last Chance Agreement.” That agreement advised that any further offenses could lead to termination. Two months later, Southwestern Bell found that Ms. DeWitt had hung up on two customers, which was evidence of poor customer service. Ms. DeWitt denied it but the company had audio recordings and fired her.

Ms. DeWitt filed a lawsuit alleging that Southwestern Bell violated the Americans with Disabilities Act with her termination. She claimed that the dropped calls were because of her disability. The 10th Circuit Court of Appeals dismissed her case. First, Ms. DeWitt did not request accommodation regarding the dropped calls; she instead had asked for “retroactive leniency for her misconduct … Such retroactive lenience is not a ‘reasonable accommodation’ as defined by the ADA.” Moreover, the circuit court pointed out that employers are not required to overlook prior misconduct as a reasonable accommodation, even if the misconduct is because of a disability. According to the court, the ADA is always “prospective.”