Cursing in Public: Tourette's Case Shines Light on ADA Accommodation

A convenience store chain has just been hit with an Americans with Disabilities Act suit from a former store manager from New Jersey who claims he was demoted twice after being diagnosed with Tourette syndrome.

John Casalnova, who was earning a six-figure income as a store manager for Wawa before he was diagnosed with the neurological disorder, now works as a gasoline attendant for the company, his lawyer said.

Employment disputes involving people with the syndrome can be particularly thorny because some with the disorder have involuntary outbursts of obscenities and offensive language.

And a recent court decision from the U.S. Court of Appeals for the Sixth Circuit could be bad news for people who suffer from the disorder who want employers to accommodate their disabilities.

Erica Domingo of Grungo Law. Courtesy photo

Casalnova has not exhibited any of the outbursts that sometimes accompany Tourette syndrome, but he sought assurances from the company that if he did have such an episode, consideration would be given that such outbursts are involuntary, according to the suit filed in New Jersey’s Camden County Superior Court.

But the company denied the request, saying that any utterance involving curse words could upset customers and be a terminable offense, the suit claims.

“Wawa refused to do that, but also would not consider transferring him into a position where he wouldn’t be customer-facing, because they said other employees could be offended if you had that type of outburst,” said Erica Domingo, an attorney at Grungo Law in Cherry Hill, New Jersey, who represents Casalnova.

“There are certain obligations under the New Jersey Law Against Discrimination for the employer to see how any disability can be accommodated. I believe the facts will demonstrate that Mr. Casalnova made every attempt to try to see how this could be accommodated by Wawa, which is a very big employer, [and] that Wawa just sort of seemed to have no interest in engaging in that interactive process with him,” Domingo said.

Wawa did not respond to a request for comment about Casalnova’s suit.

J. William Manuel of Bradley Arant Boult Cummings. Courtesy photo

Employers seeking to accommodate employees with Tourette syndrome could find encouragement in a Feb. 15 ruling from the Sixth Circuit.

In Cooper v. Coca-Cola Consolidated, the court upheld a ruling from the Eastern District of Tennessee dismissing a constructive-discharge suit by a man with the syndrome who exhibited uncontrollable utterances, including a racial slur and a derogatory term for women.

The plaintiff, Cameron Cooper, worked delivering soft drinks to retail stores, and customers and employees in the stores had complained. Cooper was moved to a warehouse job that paid less.

The court of appeals said delivering drinks to stores required excellent customer service and that his involuntary use of profane and racist language in front of customers showed his inability to perform the essential function.

The court said the company could not provide Cooper’s proposed accommodation, which was a delivery route that did not require him to interact with customers. The court said the transfer to the warehouse was reasonable because Cooper could not perform the delivery job without an accommodation, and he failed to identify an objectively reasonable accommodation.

The Sixth Circuit decision could work in favor of Wawa if it had any complaints or other evidence that Casalnova’s condition made other employees uncomfortable, said J. William Manuel, a litigator at Bradley Arant Boult Cummings in Jackson, Mississippi, who blogged about the Sixth Circuit ruling.

If Casalnova’s condition is making co-workers so uncomfortable that they don’t want to be around him, the circumstances would fall in line with the Sixth Circuit case, said Manuel.

Andrew Moskowitz of Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins in Springfield, New Jersey. Courtesy photo

But if Wawa were merely reacting to speculation about symptoms he might show in the future, it could be in trouble, Manuel said.

“As the Sixth Circuit decision pointed out, the symptoms of actually spouting out offensive phrases is a very rare condition. You often have Tourette’s and all it does is [cause] twitches or involuntary sounds, but it’s not anything offensive. So if the employer ended up saying, you got Tourette’s and it makes people scared because they know you’re going to say something improper, but there’s no actual proof that he’s doing that, then the employer is going to be in trouble,” Manuel said.

In the Wawa case, a key question is whether Casalnova’s ability to interact with or face customers was an essential function of his position as a training general manager and as general manager, said Andrew Moskowitz, a plaintiff-side labor and employment lawyer for Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins in Springfield, New Jersey.

A legal dispute over accommodation of the disorder in a job involving interaction with the public is a particularly “tricky” type of disability dispute, Moskowitz said.

“But I don’t think an employer can say as a general rule we will not permit people with Tourette syndrome to interact with the public,” Moskowitz said. “The employer would need some evidence that the particular employee was experiencing symptoms that would result in inappropriate behavior.”