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  • ACCOMMODATING EMPLOYEE ODOR SENSITIVITY MAKES SCENTS FOR EMPLOYERS

    Michigan employer settles ADA claim for $100,000 after allegedly failing to make reasonable accommodations for employee’s odor allergy

    Employers should be aware that the American with Disabilities Act (“ADA” or the “Act”) may cover an employee’s sensitivity to odors and related allergies. Failure to accommodate odor sensitivity could result in significant employer liability.

    In McBride v. City of Detroit,[1] the plaintiff alleged that her co-worker’s perfume and use of other scented sprays caused the plaintiff’s migraine headaches, nausea, chest tightness, coughing, loss of voice, scratchy throat, and rhinitis. The defendant moved for summary judgment. The main issues in the case were whether the plaintiff’s allergy was an ADA-protected disability and whether the plaintiff’s employer offered a reasonable accommodation.

    The court held that the plaintiff produced evidence sufficient to raise a genuine issue of material fact as to whether she had a covered disability. Under the ADA, a disability must substantially limit a major life activity. In other words, the disability must prevent the plaintiff from performing

    “a major life activity that the average person in the general population can perform” or . . . “significantly restrict[ ] . . . the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform that same major life activity.”

    The court determined that the plaintiff’s explanation of symptoms and an allergist’s note[2] precluded granting summary judgment for the defendant because they evidenced that odor sensitivity “substantially limited” the plaintiff’s breathing, which is a major life activity.

    The court also held that there was a genuine issue of material fact as to whether the employer offered reasonable accommodations for the plaintiff’s alleged odor sensitivity. An accommodation is “reasonable” under the Act if the plaintiff can show that the accommodation was “objectively reasonable.” Once the plaintiff shows objective reasonableness, the defendant must “show that the accommodation would ‘impose undue hardship’” to avoid liability. In McBride, there were four possible accommodations: (1) the adoption of a policy regarding scents; (2) moving the plaintiff to a different area unaffected by scents; (3) moving the co-worker who wore the perfume; and (4) FMLA leave.

    The defendant argued that a “scent-free policy” was unreasonable. However, the court explained that the plaintiff was not requesting a scent-free workplace. The plaintiff alleged that she expressed a desire for the employer to adopt a policy that would “limit the most egregious scents” and educate employees about odor sensitivities. Because the defendant did not offer any other evidence as to why a policy prohibiting only strong scents was unreasonable, the defendant could not be awarded summary judgment.

    The court indicated that there were “conflicting assertions” regarding why the employer failed to relocate the plaintiff or her co-worker who wore the offensive perfume. Moreover, while FMLA leave has been held to be a reasonable accommodation, it usually is accompanied by additional leave. Therefore, genuine issues of material fact precluded summary judgment for the defendant on these accommodation issues as well, and the jury would determine reasonableness.

    ADA claims like the plaintiff’s claim in McBride can carry a large price tag. The McBride parties settled for $100,000. In a similar case, a jury awarded a radio DJ a $10.6-million verdict that was later reduced to $814,000 on employment discrimination claims, including one filed under the ADA alleging that a co-worker’s perfume triggered the plaintiff’s allergies.

    Employers are advised to take employee odor allergies and sensitivities seriously. While a scent-free policy is probably unnecessary, less restrictive alternatives may be necessary to comply with the ADA. The court in McBride pointed out that the employer may have a duty to “‘initiate an informal, interactive process’” to determine what accommodations are necessary. Employers should avoid blaming the employee for his or her odor sensitivity because courts may view such statements as evidence of the employer’s failure to participate in the interactive process.[3]

    If you have questions or concerns about the ADA and would like further information, please email Cynthia A. Augello at caugello@cullenanddykman.com or call her at (516) 357-3753. This article was written with Alissa Piccione, a Law Clerk with the firm.

    [1] McBride v. City of Detroit, No. 07-12794, 2008 WL 5062890 (E.D. Mich. Nov. 25, 2008).

    [2] The allergist stated that the plaintiff “has a ‘cough and vasomotor [sic] rhinitis primarily triggered [sic] by irritants’ such that ‘exposure to these smells should be eliminated as much as possible.’”

    [3] A representative of the employer in McBride said, “If she’s allergic to perfumes and colognes then she [the plaintiff employee] has the problem not the employer.” The Court pointed to statements like this as evidence that the employer did not engage “in a proper interactive process.”