Perfume Sensitivity: ADA Claim or Office Nonsense?
Most HR professionals abhor their role as "fashion police" and arbiter of seemingly childish workplace skirmishes over perceived wardrobe malfunctions, odoriferous perfumes/colognes and other personal hygiene gaffs. However, ignoring these matters can land an employer in court for an alleged violation of the American's with Disabilities Act ("ADA").
A recent AP article entitled "Eau de Lawsuit: Woman sues over scent" describes an employee in the Detroit planning department who claims she is severely sensitive to perfumes and other cosmetics. She has sued the city, saying a co-worker's strong fragrance prohibits her from working. Her lawsuit under the ADA claims that her employer failed to accommodate her disability by banning perfumes in the workplace.
Seem odd? A quick review of the ADA case law shows no less that 18 reported court decisions with similar facts. In Davis v. Utah State Tax Commission, the employer was held liable for an ADA violation because it failed to engage in the interactive process to evaluate possible accommodations. In Kaufmann v. GMAC Mortgage Corp., the employer prevailed because it took steps to accommodate and the court recognized that providing a completely scent-free environment was unreasonable.
The difficult employee relations issue presented is the balancing of one employee's ADA rights with other employees' personal rights. As many employer's have learned, the ADA rights trump personal rights in the workplace. Nonetheless, employer's must avoid disclosing too much confidential medical information or allowing the disabled employee to be ridiculed or harassed for the requested accommodations.
There are other similar workplace scenarios related to an employee's alleged disability that can lead to ADA suits:
- Dress Codes: Strict compliance with an employer's dress code may be problematic because of a disability. Allergies, obesity and even Hyperhidrosis have all been cited as reasons for needing and accommodation from an employer's dress code. Modifying workplace policies for one employee may cause resentment by others. Employers need to carefully manage both the confidentiality of medical information and the potential for retaliation/harassment by other employees.
- Personal Hygiene: Sometime disabilities have collateral effects that impact the workplace. For example in Hansen v. North Dakota Highway Patrol, the State Personnel Board ruled in favor an employee, who had been fired because his weight allegedly reflected a lack of self-control, caused offensive body odor, and because he failed to wear the regulation uniform. As one can well imagine, the balancing of workplace rights for this situation is very difficult.
- Office Environment: Some medical conditions such as fibromyalgia, allergies and extreme chemical sensitivities may make an employee unable to report to work. Such an employee may request a temporary or permanent accommodation to work from home. Work at Home is an accommodation recognized by the EEOC. Like any requested accommodation, it must be evaluated based upon its reasonableness in light to the essential duties of a job.
Interesting post, and timely, too. If you haven't seen it you'll want to check out the Third Circuit's unofficially reported decision in Kaufmann v. GMAC, July 5, on exactly this issue.
You didn't mention the case of Erin Webber vs. WYCD-FM in the US District Court in Detroit where a 6 woman jury awarded the Plaintiff Webber $10.6 million in a case in which Webber sued her employer for failure, among other things, to accommodate her sensitivity to perfume. You might want to check it out. I can tell you from experience that the use of these chemicals in the workplace is all too prevasive. Many people complain about them and lawsuits are bound to become more prevalent.
The United States Access Board, in 2006, commissioned an environmental study on chemical sensitivity. The Access Board list perfume to be major barrier to access to the indoor environment for people with MCS, asthma and other environmental illness. To see the study just go to Access Board and where it says "search" type in "Multiple Chemical Sensitivity" and the 80 page study and recommendations for eliminating barriers caused by environmental factors will come up.
This issue was addressed by OSHA in 1994 when that agency attempted to get congress to address environmental issues such as cleaning chemicals and perfume in the workplace. Check out the Federal Registry in 1994. Naturally their efforts failed, but should be revisited in 2009 with a new congress.
You might think this is excessive if you're not affected by it. However, it's only a matter of time for everyone. I've been living this nightmare in my office for 7, yes 7 years now. Nice appeals to please tone it done went unheeded & some people actually retaliated by spraying carpeting, etc. & reapply if @ lunchtime. We're represented by a Union who says others have the right to wear it. What about my right to breathe & not be made sick everyday. I've been forced to wear a carbon filter mask to work everyday & on to of the physical effects I have to listen to the ridicule. Great management style - let the employees settle it between themselves. If you don't believe this is real google multiple chemical sensitivities or environmental illness. I've found out the hard way that what makes up these synthetically scented products, from perfume to body lotion, to laundry detergent, air fresheners, dry sheets are chemicals. One fragrance alone can contain up to 500 chemicals. And wonder of wonders, fragrances are protected under "trade secrets". I one had faither that because something was on the shelf available for all consumers was tested & considered safe. Just look check out the tv commericals - they're loaded with ads for this air freshener, that air freshener. I was one of those people who thought just because it smelled good it must be safe. Wrong. This will be the next cigarette issue. Your body one day simples says I can't handle all these chemicals & then the reactions start. Anything from headaches, sore throat, bronchitis like cough, cognitive impairment, speech problems, just to name a few. Yes, this is real and yes, it can happen to you. It's only a matter of time.