Odor Sensibilities-Do You Have to Accommodate?

On occasion we receive calls asking about workplace odor sensitivities when one employee is either offended by, or allergic to, a fragrance worn by a co-worker. A recent decision may help shed some light on this “sensitive” issue.

An employee filed a claim under the Americans with Disabilities Act who had an alleged sensitivity to Bath and Body Works’s Japanese Cherry Blossom scent.

“Eeeek! Don’t you dare come near me with those Japanese cherry blossoms!”

Some interesting points from the court’s decision:

This plaintiff’s allegations spanned a period of a couple of years. The court found that the plaintiff’s only alleged problem was asthma triggered by Japanese Cherry Blossom perfume — and apparently only when worn by her co-workers but not by anyone else!

The court avoided making any finding as to whether she had a disability under the ADA but take heed, this case should be a warning to employers that these “fragrance sensitivities” really can be considered “disabilities” under the ADA. Therefore, they need to be taken seriously. In essence, the court found that the ADA “disability” question was moot because her employer had tried to make reasonable accommodations anyway (another good lesson for employers) and also that the plaintiff had been unreasonable when the employer tried to accommodate her.

How-to on reasonable accommodation. The court was complimentary of the employer’s attempts to make reasonable accommodations to the plaintiff’s sensitivity, noting that it offered to ask co-workers to refrain from wearing Japanese Cherry Blossom, tried to consult with the plaintiff’s health care provider, offered the plaintiff more-frequent breaks, and made all kinds of other offers to help her out. According to the court, the plaintiff was essentially uncooperative and insisted on two “unreasonable” accommodations (discussed below) or nothing. The court found the employer had engaged in the interactive process and had met all of its legal obligations to try to accommodate her.

How-not-to on reasonable accommodation. Under the ADA, an employee who fails to cooperate in the reasonable accommodation process or refuses a reasonable accommodation loses the protection of the Act. The two accommodations the plaintiff insisted upon were (1) a 100 percent fragrance-free workplace, and (2) being allowed to telecommute. The court found that neither of these accommodations was reasonable and as a result the employer did not have to make them.
On the 100 percent fragrance free workplace, the court recognized that this was a very drastic measure and in any event that there was no evidence that the plaintiff had a serious problem with any fragrance other than Bath and Body Works’ Japanese Cherry Blossom perfume. (She did allege that she got headaches and congestion from other scents, but not asthma.)

So, the court essentially said in so many words, why ban Irish Spring soap, lemon/lime scented shaving cream, lavender-scented Aveeno hand lotion, and the millions of other products with “scents” that people use every day? And, if she’s really that sensitive (which she never claimed to be), would the employer also have to ban customers or clients who’d had a smoke before coming inside the building or employees from microwaving their lunches, or would it have to rip out the coffee machine? After all, cigarettes, food, and coffee smell, too.

But let me get to the accommodation that you’re really wondering about — telecommuting. There is no question that telecommuting can be a reasonable accommodation if the job lends itself to that. But this lady was a social worker for a county “job and family services” office. You know, one of those places where people go to apply for government help (people with limited transportation options, who probably have to take the city bus, which may not even come to the plaintiff’s neighborhood). And her job duties included meeting with them in person, and helping them get through the system. The court correctly said there is no way this type of job could be done from home.Meanwhile, the plaintiff either refused or failed to respond to offers of reasonable accommodation. So she essentially lost her protection under the ADA, and her employer won the case.

So that’s the end of the Japanese Cherry Blossom story, for now. I’ll keep you up to date on all Japanese-Cherry-Blossom-fragrance-sensitivity-related news if there is an appeal and an adverse decision.