Presume for a moment an employee complains to Human Resources that a co-worker's perfume makes her want to choke. The workplace sometimes brings us "closer" together and one worker's scent can be another worker's source of distraction or even discomfort. If the complaining employee's problem is just a matter of personal preference, then the employer has no legal duty to take action, but may want to explore a diplomatic way to resolve the dispute. On the other hand, a recent decision by the United States District Court for the Southern District of Ohio shows that, in some circumstances, this issue can result in a legal challenge.
In Core v. Champaign Cty. Board of County Commissioners, (S.D. Ohio No. 3:11-CV-00166), an employee sued the County under the Americans with Disabilities Act (ADA) and under Ohio disability discrimination law for not accommodating her request for a "fragrance-free" workplace policy. The employee suffered from severe asthma and chemical sensitivity to certain perfumes and other scents. She began experiencing difficulty breathing at work when co-workers in her proximity were wearing a perfume called "Japanese Cherry Blossom." According to the Complaint, her initial request that the employer ask employees to refrain from wearing that perfume went unheeded. Her symptoms became more severe and eventually she had to have emergency medical treatment.
Shortly after the employee sought medical treatment, co-workers began to mock her, including in Facebook posts making fun of her condition. She also alleges that employees began to wear the perfume intentionally around her and that the employer took no action to stop this conduct.
The employee presented a request to the employer signed by a nurse practitioner asking that co-workers be advised of the employee's sensitivity and that they be asked to avoid use of the perfume. The employer apparently communicated by email to employees asking that they not approach the employee personally, and instead communicate with her only by telephone or email. The employer also asked the employee to attempt to have face-to-face conversations with staff only in well-ventilated, open areas of the office.
The employee eventually went on leave because her symptoms continued. She then asked to work from home as an accommodation and the employer rejected that request. The employer did agree eventually to request that employees not wear Japanese Cherry Blossom perfume while at work and volunteered to consider any additional information that the employee might submit from a pulmonologist. However, by that time, the employee had altered her request for accommodation. She now requested a specific written policy prohibiting co-workers from wearing any fragrance in her proximity.
The case was before the court on a motion by the employer to throw the Complaint out before it ever reached a trial. The employer argued it was impossible to provide the employee a fragrance-free workplace since her job required that she be exposed to members of the public. The court denied the employer's motion, saying that the requested accommodation of requiring employees to be fragrance-free would at least minimize and limit the employee's exposure to perfumes, even if it did not eliminate all fragrances. The court also rejected the employer's argument that it had already adequately granted a reasonable accommodation by requesting employees not to wear Japanese Cherry Blossom. The court noted that the request for an official policy banning all fragrances might be reasonable, particularly in light of the objectionable conduct engaged in earlier by the co-workers and the allegation that the employer took no steps to stop the conduct. As a result of the court denying the employer's motion, the case can go forward to trial and, if it reaches that stage, the employee will have the chance to convince a jury that her requested accommodation was reasonable.
There are a number of important lessons in the case. First, the question of whether an employee's requested accommodation is "reasonable" can be specific to that employee. In this case, the employee had a medical condition which, although unique, apparently caused her significant problems at work. Second, the mere fact that a requested accommodation might be unpopular among co-workers does not, standing alone, mean that the accommodation is unreasonable. In this case, the court leaves to the trial stage the question of whether imposing a fragrance-free policy was an unreasonable imposition on co-workers. A third important message is that the court in this case seems to have been influenced, in part, by the employee's claims that the employer did not take any action to prevent the objectionable and harassing conduct by co-workers. All in all, the case illustrates the importance for early interaction and open dialog with employees with apparent disabilities and intervention to prevent improper conduct by co-workers.
There is an interesting side note in the case. Speaking of the employee's request for working at home as an accommodation, the court signaled that requests to work from home will be viewed in a different light today than perhaps they were some years ago. In the past, an employee faced a heavy burden in trying to convince a court that the employee should be allowed to work from home to accommodate a disability. Employers more often than not prevailed in arguments about providing work at home as a reasonable accommodation. In this case, the court did not have to reach the question whether this employee's request to work from home was reasonable, leaving that question for the trial. But, the court did say: "Certainly, communications technology has advanced to such a state that the proposition of employees working from home is not quite as burdensome or untenable as it perhaps was in 1995 [the year in which one of the first cases about work-at-home accommodation was addressed]. Today, in this court's view, it may not 'take a very extraordinary case for the employee to be able to create a triable issue of the employer's failure to allow the employee to work at home.'" In other words, expect courts these days to be more open to the argument that an employee can adequately perform a job from home where doing so is otherwise necessary as a reasonable accommodation.