If an individual’s disability causes involuntary racist or profane utterances, what would a reasonable accommodation under the ADA look like? In Cooper v. Dolgencorp, LLC, the Sixth Circuit faced just such an inquiry.
ADA Primer
The ADA protects a qualified individual with a disability who can perform the essential functions of his or her job with or without reasonable accommodation. Typically, the inquiry begins with determining what tasks make up the essential functions of a position. Sometimes there are physical requirements about pulling or pushing an amount of weight. Other times it might be the ability to stand for a certain period of time. But what about an essential function that requires an employee to deal with the public in a way that his disability makes difficult?
Coprolalia as a Condition
Cameron Cooper worked for Coca-Cola Consolidated, Inc. (CCCI) as a delivery merchandiser which entailed “delivering, merchandising [and] maintaining company standards at company locations.” The job required interaction with people at customers’ stores and specifically mentioned “excellent customer service skills” as an essential job function.
Cooper suffered from a rare form of Tourette syndrome called coprolalia, which caused involuntary tics that resulted in him saying inappropriate and obscene words, including a derogatory term for women and a racial slur for Black people. CCCI knew about Cooper’s disability when it hired him but claimed it did not know the full extent of his condition. While CCCI knew that Cooper had involuntary tics, it did not know that his condition included involuntary use of the N-word and other profane terms. CCCI began to receive customer complaints about Cooper’s language in the fall of 2016. Employees of stores where Cooper delivered felt “very uncomfortable” and were having to apologize to people who overheard the offensive words. After a meeting with HR in 2017, Cooper went on FMLA to receive therapy and changes in his medication. It seemed to help, and he returned to his position.
By 2018, at least one store specifically asked that Cooper no longer service their store. CCCI adjusted his route so that Cooper would have someone with him when he visited the store. After several other complaints, CCCI told Cooper that he either needed to take another leave of absence or change to an overnight warehouse position that did not have any customer interaction. In response, Cooper requested another delivery route that he believed was “non-customer facing” but CCCI said that route was no longer available. Cooper ended up taking the warehouse position that, after some negotiations with CCCI, paid about $1.50 less per hour than the delivery merchandiser job. Cooper eventually left CCCI to take a delivery position with another company.
What We Have Here Is Failure to Accommodate (Allegedly)
Cooper sued CCCI under the ADA claiming that it failed to accommodate, failed to engage in the interactive process, and constructively discharged him. (He voluntarily dismissed the interactive process claim.) CCCI moved for summary judgment claiming that Cooper could not provide excellent customer service, which was an essential function of the position. The trial court agreed and dismissed the case. Cooper appealed to the Sixth Circuit Court of Appeals.
The Sixth Circuit first looked to see if “excellent customer service” was an essential function of Cooper’s position and, if so, could he perform that function without having to change his job duties. CCCI’s written job description specifically included “excellent customer service” as a necessary skill. Additionally, Cooper stipulated that excellent customer service was an essential function.
Next, the court examined whether Cooper could provide that excellent customer service without an accommodation. Cooper’s own doctor admitted that he could not. In addition, Cooper’s involuntary use of racist and profane words in the presence of customers showed his inability to perform the essential function. CCCI had to make (and did make) reasonable accommodations: allowing for medical leave, providing a co-employee to accompany him to certain stores, etc. Therefore, he could not perform the job without an accommodation.
Then the court turned to whether CCCI’s failure to find an accommodation that would have allowed him to perform the essential function of the job violated the ADA. Under the ADA, the employee bears the initial burden of proposing such an accommodation and proving that it is reasonable. Cooper proposed a delivery route that would not require him to interact with customers. CCCI did not have such a position but transferred him to a warehouse position. Given that Cooper could not perform the delivery merchandiser position without an accommodation and he failed to identify an objectively reasonable accommodation, the transfer to the warehouse, even at a lower grade and pay, was reasonable. The Sixth Circuit affirmed the dismissal of Cooper’s claim.
Detailed Job Descriptions Are Essential
Although the thought of updating and adding more detail to your written job descriptions may make your HR department grumble, this case demonstrates why good job descriptions are extremely important. Even something that would seem to be common sense – being able to effectively relate and not offend your customers – may be the key to defending your next lawsuit. CCCI defeated this lawsuit because it was able to point to that essential function in the job description, as well as their attempts to figure out any way to accommodate Cooper’s disability.
A smart strategy is to go over your job descriptions with the employees who hold those positions to make sure they accurately reflect what the job entails. Then be vigilant in enforcing those requirements.
