A federal court in Ohio recently ruled that an employee with asthma and chemical sensitivity to perfumes and scented products could pursue an Americans with Disabilities Act claim against her employer for not reasonably accommodating her disability, despite the many (albeit delayed) accommodations offered by her employer.* The Court's decision denying a motion to dismiss the case on the complaint's allegations suggests that a fragrance-free workplace policy and/or permitting the employee to work at home may have been required accommodations.
The plaintiff had difficulty breathing at work when she was close to particular co-workers who wore a perfume "Japanese Cherry Blossom." On one occasion, her exposure to the co-workers' perfume resulted in her seeking emergency treatment. The co-workers allegedly mocked the plaintiff and her condition in their posts on Facebook, and they allegedly continued to wear the perfume with knowledge of its effects on her. The other employees were allegedly not disciplined for their behavior.
The employer took no action when first informed of the plaintiff's difficulty breathing at work. Years after first being so advised, the employer devised an interesting fix, an e-mail message to employees requesting that they not go into the plaintiff's work cubicle, but instead, communicate with her by telephone and e-mail only. The employer also asked the plaintiff to conduct discussions with fellow employees in better ventilated open areas of the office. After the employer rejected various accommodation requests from the plaintiff (described below), the employer suggested that she go outside to alleviate any symptoms as often as necessary, and expressed willingness to send another e-mail message to employees, requesting that they refrain from wearing "Japanese Cherry Blossom" perfume while at work.
However, the plaintiff made various accommodation requests that were rejected by the employer, and these proposals created the fact dispute allowing her to proceed with her case. She proposed, among other things, a fragrance-free workplace policy - not just requests to employees, and not limited to "Japanese Cherry Blossom" perfume. The Court found that such a policy may have been a reasonable measure in light of the "thoroughly unconscionable behavior" of plaintiff's fellow employees, their intentional misconduct, and the employer's failure to reprimand them. Alternatively, the plaintiff proposed working from home. In light of advances in communications technology since the first ADA court decisions - which rejected work from home as a reasonable accommodation - the Court ruled that the jury may reasonably find that the defendant should have granted this proposal.
* Core v. Champaign County Board of County Commissioners, Case No. 3:11-cv-166 (S.D. Ohio July 30, 2012)