When You Can’t Accommodate A Disability
NEWSLETTER VOLUME 2.9
|March 04, 2024
When You Can't Accommodate A Disability
Neurodivergent people experience and walk through the world differently than neurotypical people. We are just beginning to understand all the different ways people experience the world. Part of why it's taken this long is that we've been looking at neurodivergence as a medical condition to fix or manage. When neurodivergent people joined the research, they asked whether there was really something wrong or whether neurodivergence was just another form of variety in humans.
What if there's nothing to fix? Most people have brown eyes. Brown eyes are typical. But some people have blue, green, hazel, or other colored eyes. We don't call them divergent; we just call them eyes.
Some neurodivergent people need significant support while others are just a little weird and quirky. There is an entire spectrum between needs a lot of support and you'd probably never know. Often neurodivergence manifests in certain sensitivities, behaviors, and tics. But because the world is designed for people who are neurotypical, neurodivergent people often have a harder time navigating social norms and expectations as well as sounds, lights, smells, textures, tastes and spaces around them. I worked with a brilliant attorney who actually understood and could quote sections of the tax code from memory but couldn't find his way back from lunch. He was probably neurodivergent.
In employment, neurodivergent people can often do things that neurotypical people can't. The tech industry is full of weird and quirky people who are neurodivergent. So are the arts. And sometimes, neurodivergent people also need accommodations.
Every neurodivergent person has their unique wiring and there's infinite ways of how that wiring works. So, it's essential to really consider what will and won't work for both the person and the work, and if necessary, try different things.
This is a case where a customer service representative had Tourette's, which is a form of neurodivergence that sometimes comes with involuntary outbursts, not always suitable for work. Here, the employer engaged in an interactive process, tried several accommodations, and ultimately had to move the employee to a role that was not customer facing. They did everything right and it still didn't work out. It's really frustrating for everyone when that happens. But sometimes, there is no accommodation that will work.
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.
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