Who hasn't sat next to someone who smells like they dunked themselves in perfume or after-shave? Many perfumes and colognes can be overpowering and even dangerous to those with allergies. Detroit City workers are now urged to go scent-free after the City coughed up $100,000 to settle a federal lawsuit filed by a City employee.
Suits for Scents
In 2007, Detroit city planner Susan McBride filed a lawsuit against the City claiming it violated the Americans with Disabilities Act (ADA). She said an allergy to perfumes and other grooming products used by fellow workers made it hard to breathe and work. When the City failed to give her reasonable accommodation under the ADA, she turned to the courts for help.
McBride and the City settled in early 2010; the case didn't go to trial. The City adopted a policy for a scent-free workplace. The policy also covers using scented candles, air fresheners and even magazine perfume samples. However, there's no penalty if employees don't follow it. This perhaps addresses the question of whether the policy interferes with a worker's privacy rights or freedom of expression.
What Is a Disability?
The Americans with Disabilities Act (ADA) is a federal law that's been around for nearly 20 years with the purpose to protect against disability discrimination. If the ADA covers your disability, your employer might have to provide reasonable accommodation to do your job.
Are You Disabled?
A major challenge in proving your case is showing you're disabled. The Americans with Disabilities Amendments Act of 2008 provides a broader meaning for disability. You can now prove disability by showing:
- A physical or mental impairment substantially limiting a major life activity
- A record of such impairment
- Being perceived as having such impairment
The new law gives a list of disabilities, including bending and reading, and you can show other situations qualify. These changes mean more people should be able to show disability and gain ADA protection. Conditions related to chemical sensitivities, such as McBride's could qualify.
Reasonable Accommodation: Employer Duties and the ADA
Once the issue of whether you're disabled is settled, what's next? As the law requires, you've made your employer aware of the nature and extent of your disability. What does your employer have to do? The ADA requires employers to provide reasonable accommodation so you can do your job.
What Is Reasonable Accommodation?
Simply, reasonable accommodation means providing you with the means to do your job, given your disability. Hopefully, you and your employer can do this informally. Meeting your needs doesn't have to be complex, expensive or in the end, involve a lawsuit. Maybe all you need are changes to your work area, or some flexibility with scheduling, more frequent breaks, for example.
There are limits on how far an employer must go in meeting your needs. The law doesn't force an employer to do something causing undue hardship. This means it doesn't have to take on a substantially difficult or expensive solution. Your employer doesn't have to follow your chosen accommodation. If there's more than one way to meet your needs, the employer can choose another option.
What All Employees Need to Know
Many employers try to prevent problems at work with proactive policies and rules, often found in your employee handbook. Examples include conduct and dress codes. Give your employer a chance to correct the problem, or to explain the reasons, before pursuing legal action. At the same time, keep records and be familiar with the time limits for possible lawsuits.
Finally, be aware not every condition is a disability, nor does the law provide relief in every case. Just because someone's perfume or aftershave, or the air freshener in the restrooms bothers you doesn't mean you have a disability. If it's someone you know and feel comfortable around, ask them to limit the amount of scent they use, or ask your supervisor to talk to them. It may be as simple as that.