How do we help an employee who blurts obscenities and racial slurs to our customers uncontrollably?


Recently, I read a recent federal appellate court decision involving an employee with a rare form of Tourette Syndrome that caused him to use obscenities and racial slurs. While that could be dicey around coworkers, this employee’s job required excellent customer service skills while making deliveries and interacting with said customers.

And that’s when things got complicated.

Indeed, throughout his employment, several customers complained about the employee’s offensive language while he serviced their stores.

The employer adjusted the employee’s route so that he would not service stores alone. He also received a leave of absence, after which the company allowed him to work as a driver helper to limit customer interactions further.

However, these accommodations did not eliminate the problem.

Following a customer complaint unrelated to the employee’s Tourette Syndrome, the employer’s investigation revealed that the employee’s tics were “once again out of control, and he was repeating the `N-word’ over and over through his daily route and in the presence of customers and consumers.”

This prompted the employer to offer two options: take another leave of absence or transfer to a vacant, overnight warehouse position with no customer interaction. The employee accepted the warehouse position at a reduced pay rate and eventually resigned.

Then, he sued the company for disability discrimination.

In a case like this, the plaintiff must establish that they are “otherwise qualified” for the position, meaning that they can perform the essential functions of their job with or without a reasonable accommodation.

Here, the delivery merchandiser role required not just interacting with customers but excellent customer service. However, the plaintiff’s disability caused him to vocalize racist and profane words in front of customers who complained to the defendant about it. Clearly, the plaintiff could not perform the job without accommodations.

The defendant did a lot of things right here.

It adjusted the plaintiff’s route to accommodate him, provided a leave of absence, and otherwise tried to limit the plaintiff’s customer interactions. That didn’t work. Eventually, the defendant offered the plaintiff a non-customer-facing position (at lower pay) or another leave of absence.

Initially, the plaintiff insisted that there had to be another delivery route that would avoid any customer contact. If true, that would have been the solution. But, when the rubber met the road in court, he lacked evidence to back his position.

Further, while the plaintiff viewed the warehouse position as a demotion, an employer may reassign an employee to a lower grade/pay position if the employee cannot be accommodated in the current position and a comparable position is unavailable.

For these reasons, the defendant’s accommodation was reasonable, and the court affirmed the dismissal of the failure-to-accommodate claim.

“Doing What’s Right – Not Just What’s Legal”
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