Disability caused me to use racial slur, ADA plaintiff says

Sometimes, an employee can adequately perform their job despite having a disability. And other times, disability-related limitations make them unqualified for the job. That line can be tricky to draw, but in this case a federal appeals court ruled that the symptoms of an employee’s Tourette Syndrome essentially disqualified him from his job as a delivery merchandiser.

The case involved Cameron Cooper, who worked for Coca-Cola Consolidated, Inc., as a delivery merchandiser.

In that position, Cooper delivered products to customers in northeast Tennessee. He filled shelves and coolers, stocked displays and rotated products. He was also tasked with fostering positive relationships with account personnel and providing good customer service.

Disability causes offensive behavior

Cooper has Tourette Syndrome, which causes him to say “bitch” and the N-word. The employer claimed that when it hired him, it knew he had tics but thought they were limited to him making a whooping sound and having some head movements. Cooper, on the other hand, said his condition has always caused him to use profanity and the racial slur.

The employer said it received “numerous and ongoing” complaints about Cooper’s use of offensive language while servicing stores. For example, in September of 2017, a Dollar General manager said Cooper repeatedly used a racial slur while delivering products to the store, including in front of an African American store employee. The Dollar General manager told Cooper’s employer that he was concerned for Cooper’s safety.

Cooper took FMLA leave in 2017, during which he adjusted his medications, found a new neurologist, got treatment from a counselor, and received acupuncture therapy. These steps seemed to help, and he returned to work.

Better, and then worse

However, the employer said that by the fall of 2019 Cooper’s disability-related tics were “once again out of control” and that he was repeatedly using the N-word in front of customers and consumers on his route.

In December of that year, it told him he could either take another leave of absence of transfer to a vacant, overnight warehouse position that did not involve customer interaction. Cooper responded by asking for a delivery route that did not involve direct customer contact, but the employer told him none were available.

He took the warehouse job, which paid $1.42 less per hour than the delivery job. He lasted there until April of 2020, when he decided to leave. He said he went on to find other jobs that were almost identical to the delivery merchandiser job, and that he had no customer problems doing them.

Suit alleges disability bias under ADA

Cooper sued the employer, alleging four claims under the Americans with Disabilities Act (ADA): denial of accommodation, constructive discharge, refusal to engage in the interactive process, and retaliation. A lower court ruled against him, and he appealed.

The U.S. Court of Appeals for the Sixth Circuit affirmed.

The appeals court said that providing excellent customer service was an essential function of Cooper’s position, noting that the job description for the position said excellent customer service skills were required.

Cooper needed a disability-related accommodation to perform his job, the court said, and the employer tried to provide one. It granted him medical leave, and it offered him a transfer to another position.

As to the two alternate routes Cooper suggested, he did not show that one excluded direct customer interaction, and the other was not open at the time he sought it.

The employer acted reasonably when it transferred Cooper to the warehouse position, the court ruled.

No unlawful denial

Thus, there was no denial of reasonable accommodation under the ADA, it found.

The appeals court also upheld the lower court’s decision to reject the constructive discharge claim under the ADA.

As to that claim, the court found that Cooper did not show that the employer deliberately created intolerable working conditions to force him to quit. In fact, it provided multiple accommodations to him to address his disability.

The decision of the lower court was affirmed.

5 quick points

Here are a few key points that employers can take away from this ruling.

• While inclusion in a job description is not conclusive proof that a particular job function is essential, it can be persuasive evidence that can aid employers if a dispute arises as to whether the inability to perform the function renders the applicant or employee unqualified.
• A job transfer to a lower-paying position as an ADA accommodation may be sufficient if a comparable position is not available.
• Employers that show they engaged in a good-faith effort to help find a reasonable accommodation are much more likely to avoid ADA liability.
• Employers need not tolerate dangerous or sufficiently offensive employee behavior, even if the behavior is caused by a legitimate disability.
• Under the ADA, an employer does not have to bump an employee from a job or create a new position to accommodate an employee with a disability.

Cooper v. Dolgencorp, LLC, No. 23-5397 (6th Cir. 2/15/24).