'Racist' Tourette's tics | Transfer of Coca-Cola Consolidated employee away from customer-facing role is not discrimination, says court

Transfer of Coca-Cola Consolidated employee away from customer-facing role is not discrimination, says court

A court has ruled that Coca-Cola Consolidated, Inc (CCCI) did not breach the Americans with Disabilities Act (ADA), after an employee with Tourette’s whose tics included racist and profane slurs sued the employer for disability discrimination.

The employee has Tourette Syndrome and exhibits coprolalia, a rare symptom that leads him to involuntarily say obscene language including profanity and racial slurs.

He brought the case against CCCI for failure to accommodate his condition, constructive discharge, failure to engage in the interactive process, and retaliation.

The United States Court of Appeals for the Sixth Circuit confirmed a district court ruling that granted summary judgment to CCCI.

“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.”

The ruling disputes the employee’s argument that he could complete his customer-facing role without accommodation or help from his employer, finding that CCCI did not breach ADA legislation, having made numerous accommodations for his disability since hiring the employee in 2016.

CCCI had transferred the employee from a customer-facing role as a delivery merchandiser to a non-customer-facing role in a warehouse after receiving “numerous and ongoing” complaints from customers about his offensive language.

The role involved a pay cut from $20.38 to $18.96 per hour.

Initially appointing the employee to a customer-facing role, CCCI was aware the employee experienced tics, but not that the tics included racial slurs and profanity, something which the employee disputes.

From as early as late 2016 until late 2019, multiple formal complaints were lodged against the employee, such as a Dollar General manager in September 2017 who stated the employee used a racial slur “frequently and freely.”

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During this period, CCCI provided numerous provisions to the employee including granting Medical Leave Act requests and accommodating a return-to-work provision from his doctor to be partnered with another driver.

After deciding to move the employee to a non-customer-facing role, CCCI offered the worker a warehouse position as “there were no other non-customer-facing delivery routes open at that time.”

Whilst the employee eventually agreed on a warehouse role offered to him in December 2019, he quit the role by April 2020, notifying his supervisor that it was “nothing against y’all[,] but I’ve got another job.”

Since this time, the employee has worked for companies including Dealer’s Warehouse and FedX Freight in roles he claims are identical to his original delivery merchandiser role at CCCI. He has not received any complaints or objections during these roles.

The court rules excellent customer service is “an essential function” of the delivery merchandiser position, considering whether the worker was able to “could provide excellent customer service to CCCI’s customers without an accommodation.”

Due to numerous factors including the return-to-work provision from his doctor, the multiple formal complaints against him, and the employee’s acknowledgment of the complaints, the court says no jury would find he could provide this level of service.

“The ADA does not require an employer to tolerate an employee’s repeated inadequate job performance for a certain amount of time before it acts,” the ruling states. It also re-iterates the multiple accommodations CCCI did make for the worker, asserting that “each time Cooper requested an accommodation from CCCI, the company provided one.”

The ruling also finds that alternative non-customer-facing-delivery-routes were not a viable option and therefore CCCI was justified in moving the worker to the role he felt was a “demotion” and “far less desirable,” drawing on the prior Cassidy v. Detroit Edison Co. case which stipulates “[a]n employer may reassign an employee to a lower grade and paid position if the employee cannot be accommodated in the current position and a comparable position is not available.”

“He has offered no evidence that CCCI placed him in the warehouse position to force his resignation rather than as an accommodation,” concludes the ruling.

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