What the heck is “retroactive leniency” and why does it matter?

Courts say the ADA does not forgive past work violations.

This falls into the category of “you learn something every day.” When I came across this post by attorney Richard Meneghello, of the law firm Fisher Phillips, my first thought was this had to do with forgiving something done in the past. I wasn’t too far off.

Excuses for misconduct

In his post, No Excuses: “Retroactive Leniency” Is Not An ADA Reasonable Accommodation, Meneghello tells us the story of an employee who had a long, documented record of misconduct. She was a customer service rep for a telephone company and had a documented history of hanging up on customers and other activities specifically prohibited in the employee handbook. She was also a diabetic which caused her to take leave, which was permitted. She was also allowed to take breaks as needed for her low blood sugar.
After several warnings and meetings the company decided to terminate her employment citing this long list of violations. The employee sued under the ADA stating that the company should have forgiven her violations as a reasonable accommodation for her diabetes.

The court said “no”

The original court rejected her claim and her case was appealed to the 10th Circuit Court of Appeals. Their reasoning was, as quoted by Meneghello,:

The 10th Circuit pointed to the EEOC’s Enforcement Guidance on Reasonable Accommodation which makes clear that the ADA is “always prospective” and that an employer is not required to excuse past misconduct even if it is the result of the individual’s disability. The Guidance specifically says that “an employer never has to excuse a violation of uniformly applied conduct rule that is job-related and consistent with business necessity.”

Meneghello also cited other cases the court cited:

…decisions from the 2nd Circuit (“A requested accommodation that simply excuses past misconduct is unreasonable as a matter of law”), the 8th Circuit (asking for a “second chance” to do better is not a cause of action under the ADA), the 5th Circuit (“a plea for grace is not an accommodation as contemplated by the ADA”), and the 7th Circuit (“the ADA does not require” that an employer grant “another chance”).

Don’t get too excited

This case brings several points to light that employers should pay attention to. This case had a very well documented case of discipline that bolstered the employer’s case. They had gone out of their way to accommodate and offer leave and documented all their discussions with her. If you are not doing the same in your situation you may not be as successful. The second point is that you still need to engage in the interactive process if in the meetings with the employee they invoke the need to have an interactive discussion about their current behavior.
What this case shows is that if you have gotten to the disciplinary stage past behavior does not need to be forgiven as an accommodation.
But as Meneghello points out

 “…It clearly demonstrates that you do not have to put the brakes on an ongoing disciplinary process based on past performance deficiencies or misconduct simply because the employee requests an accommodation in the midst of the process….However, this case should not provide you an excuse to ignore an employee who requests reasonable accommodation during a disciplinary process.” (My emphasis)

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