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.