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Does Coprolalia Preclude Excellent Customer Service?

For some of us, mere competent customer service is such a stunning improvement from the norm that we applaud it. After all, how often are we able to get anything accomplished, no less done right the first time without insufferable fuss? But for an employee with a form of Tourtette Sydrome, coprolalia, performing the job isn’t enough but for his disability. And in Cooper v. Dolgencorp, LLC, the Sixth Circuit held that’s not discrimination.

Cameron Cooper has a disability that causes him to involuntarily utter racist and profane words. Even with the disability, Cooper (like many adults in America) needs to work to earn an income. Fortunately, the Americans with Disabilities Act (“ADA”) provides a remedy for an employee whose employer discriminates against him for having a disability. But to access the remedy, the employee must be able to perform the functions of his job, with or without help (an accommodation) from his employer.

Coca-Cola Consolidated, Inc. (“CCCI”) hired Cooper to deliver its products to its customers. Like many jobs that require an employee to interact with the employer’s customers, Cooper needed to provide excellent customer service. Cooper’s racist and profane language at times got in the way of him providing excellent customer service to CCCI’s customers. Over the years, CCCI provided Cooper with various accommodations for his disability. CCCI’s last accommodation to Cooper required him to transfer to a position with no contact with CCCI’s customers. That transfer led to Cooper suing CCCI under the ADA for disability discrimination and constructive discharge.

When the court says Cooper’s language was profane and racist, it wasn’t kidding.

In 2016, Cooper began working for (Coca Cola Consolidated, Inc.) CCCI as a delivery merchandiser. Prior to CCCI hiring Cooper, he had already been diagnosed with Tourette Syndrome. Tourette Syndrome causes unwanted, involuntary muscle movements and sounds known as “tics.” For Cooper, his Tourette Syndrome has a rare tic symptom known as coprolalia. The condition causes Cooper to use obscene and inappropriate vocalizations, including profanity (bitch) and a racial slur (n*****).  (The court spelled out the word. I chose not to.)

It would be one thing if Cooper was engaged in direct contact with random consumers, such as a salesperson in a retail clothing store or a telephone customer service rep where the people with whom he was dealing would almost certainly be outraged and offended by his tic and no accommodation would serve to overcome the disability and allow him to do the job.

But Cooper was delivering coke to retailers, not the general public. His route was almost certainly the same every day, and the people with whom he dealt were within a limited sphere where he could explain his disability and expect some degree of tolerance they might not have for someone who just like spewing profane and racist words. Cooper had a disability, and the worst of it was that he said words that others would find offensive but for the fact that it was not a product of him being a bad dude, but Tourettes.

Was this too hard to accommodate?

One such incident led Seiter to document a formal complaint by a Dollar General manager against Cooper in September 2017. That manager allegedly observed Cooper “frequently and freely” use a racial slur inside a Dollar General store while Cooper delivered products. This incident apparently occurred in front of Dollar General’s customers and an African American cashier, requiring the manager to apologize to those who witnessed the incident and remove Cooper from customers’ view. The Dollar General manager allegedly told Seiter this incident made him “very uncomfortable” and concerned for Cooper’s safety, “as well as his customers and associates that may be offended by [Cooper’s] tic word.”

This story involves two separate problems. The first, that when stocking shelves, Cooper was overheard by the store’s customers is the more troubling, as the Dollar General manager has good reason to be concerned about this. Of course, the accommodation is that either a store employee stock the shelves or at least be nearby to explain to customers that the language was a product of Cooper’s disability, not his character.

As for the African American cashier, it would seem no more difficult than an explanation. If the cashier is so offended by another person’s disability that he either can’t function or is prone to violence, then the problem is with the cashier, not the guy with Tourette Syndrome.

But CCCI argued that Cooper’s disability precluded him from performing an essential job function, “excellent customer service.”

CCCI identifies “[e]xcellent customer services skills” in its written job description for the delivery merchandiser position as part of the knowledge, skills, and abilities necessary to perform the job. And, crucially, Cooper stipulates that excellent customer service was an essential function of the delivery merchandiser position. Our analysis of the first question ends there.

Such catchphrases as “excellent customer service skills” are commonplace and too vague and subjective to provide much of a conceptual ledge to hang to, and yet the court “ends there.” But this was a summary judgment motion on a “failure to accommodate” case.

Failure-to-accommodate cases typically fall into two broad categories: (1) cases where the plaintiff does not want an accommodation but instead makes “the straightforward claim” that  he can do his job “as it exists”; and (2) “those in which the plaintiff challenges a particular job requirement as unessential or claims that he or she can do the job with reasonable accommodations on the part of the employer.”

Is the fact that profane and racist words emit from the mouth of a person suffering from coprolalia so horrifying that his excellent performance otherwise isn’t sufficient to provide the level of service expected of him? Or has the racist word become so demonized that it means a disabled person who delivers coca cola on time and stacks it beautifully on shelves can’t keep his job because his disability, and nothing more, is too offensive for even those who know of his disability to suffer?

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