In the Trenches: Allergic crusader campaigns until fired

An Acme employee with a severe allergy to perfumes and other artificial fragrances repeatedley campaigns his cause to HR, until he's finally fired. Find out the full story and remember, only the names are changed to protect the innocent.

Through luck and persistence, Chris Mazguze was landed a clerical position at Acme’s corporate headquarters. It was about time he found a job that was a cut above flipping burgers and stocking shelves.

One week after he was hired, Chris informed Flo Snurrey, his supervisor, about his allergic reaction to perfumes and the artificial fragrances in many common household products. The symptoms he experienced when his allergy acted up included clogged sinuses, watery eyes, a sore throat and, occasionally, migraine-like headaches. The symptoms might be temporary or they might last two or three days. Chris explained that a particularly severe exposure left him lethargic, groggy and unable to concentrate on the work at hand. He asked that Flo arrange for Acme to accommodate his condition by prohibiting other employees from wearing perfume.

Flo, a lady’s lady herself, replied that Acme would be unable to do anything of the sort because an employer has no right dictating the hygiene habits of its employees. Besides, the idea that she herself would no longer wear perfume was unthinkable.

Secretly, she harbored second thoughts about her new employee.

So, on his own, Chris told anyone with whom he came into perceptible olfactory contact that he had this extreme allergy and described his potentially severe reaction to the scent the person is wearing. Several coworkers were sympathetic; some cut back on their morning splash of scent, others completely stopped. But most Acme employees couldn’t care less and continued with their routine a.m. ablutions.

Chris also regularly visited the HR department to lobby for a company-wide ban on wearing perfume and cologne while on the premises. He likened his reaction to the one that justifies the ban on second-hand smoke in the workplace. All that Chris managed to get from Acme was a change to a different type of air freshener in the men’s rooms.

Even though Chris’s symptoms arose often during the next two years, he didn’t miss many days of work. He just grouchily trudged onward, toughing it out as best he could, feeling as miserable as he looked. However, coworkers noticed that he seemed to be spending an extraordinary amount of time on his anti-aroma crusade. This fact wasn’t lost on Flo, who mentioned it at the last three performance reviews she gave Chris.

It was during an office upgrade and rearrangement that Flo thought she finally had a golden opportunity to respond to Chris’s original request for accommodation. She specified that Chris’ workspace be surrounded by empty workstations and file cabinets to help minimize the potential for continuing allergy attacks.

With the new seating arrangements, his symptoms eased a bit, continuing along, but at a lower intensity. Chris continued to lobby the HR department. That effort resulted in several additional accommodations. Acme told Chris that he could wear a mask while in the office. HR also had private discussions with employees who walked through the office leaving a cloud of aroma in their wake. HR even went as far as sending a company-wide e-mail asking employees to be circumspect in the amount of odor they bring into the workplace.

Now, three full years into his tenure at Acme, Chris is still struggling with his allergy and still trying to extract comprehensive accommodations from the company. Topping his list was getting the company to ban scents inside the building. By this time, however, Acme’s HR department was weary of having to rehash the same material with the same employee each month. Finally, Acme asked Chris to submit a medical certification form, to be completed by his physician. The company wanted the benefit of a third-party opinion.

A week later, Chris submitted the form, on which the doctor reported that his patient was extremely sensitive to perfume and other fragrances, but this condition didn’t constitute a serious health condition. Also, the doctor wrote that Chris was theoretically able to perform any work that Acme needed him to perform.

During the following year, Chris continued to file his monthly complaints about scents and perfumes. Each time he did, Acme asked for an updated medical certification form. Chris never submitted any.

Last October, Flo sent Chris a memo telling him that his performance isn’t up to the standards that Acme expects. She also put him on probation pending a performance review scheduled two weeks hence. The memo cited the behavior and unresolved performance issues that were of concern. It mentioned his failure to meet the provisions of the action plans to resolve these problems that were highlighted during previous performance reviews.

It was at this performance review that Chris finally submitted a follow-up medical certification form. In this one, the doctor told Acme that Chris has a serious health condition, which is a direct result of the allergy and that he is not to work when the symptoms are present. Acme felt justified in terminating Chris and thought the matter closed.

But, Chris sued, claiming that Acme had discriminated against him by refusing to accommodate his disability.

How could this situation have been prevented? Can a company dictate such hygiene matters? How would the situation have differed if a non-allergic Chris never bathed? Does an allergy really require workplace accommodation? Is there any practical way to do it? Should pre-employment physicals be mandatory? If Acme wasn’t willing to accommodate Chris, then shouldn’t they have terminated him within the first 90 days of his employment after they learned about the allergies?

An academician says:

Probably my favorite smell story is an office guy who went on the Internet to buy a special cologne that was absolutely guaranteed to attract women. However, the women in his office found it putrid and nauseous, and said it made them sick. Romeo was told to get rid of the stink or find himself another job. So, to answer one of the issues here, if someone’s cologne, perfume or body odor makes coworkers ill, then either the person or the smell goes. However, even this could get complicated if the odor is caused by an offender’s health-related problem.

Chris’s problem is a little different. It seems that there are a lot of things at Acme that are making him ill – perfume, air fresheners, cleaning solvents and whatever. So, the question is whether Acme should or can get rid of all smells, or can move Chris to an environment devoid of odors, or gets rid of Chris.

Chris sued under the Americans with Disabilities Act (ADA), which states that companies must make “reasonable accommodations” for people with disabilities. Chris has argued that Acme didn’t do that in his case. However, Chris’s case gets a bit complicated because the court seems to have avoided the question as to whether a perfume allergy is, in fact, a disability. Thus, we’re not sure if Chris even has a valid complaint.

Acme has the right to ask workers to avoid wearing perfume, if it wanted to push this. But I’m not sure doing so would help because Chris seems to be allergic to a variety of odors. Acme attempted “reasonable accommodation” by asking employees to avoid the use of perfume, allowed Chris to wear a mask, and changed the air freshener in the men’s room. The ADA doesn’t require that a company redesign its workplace for an employee, but rather they make a reasonable attempt to accommodate the employee. My guess is that Acme’s efforts complied with the “reasonable accommodation” clause and the company probably is in the clear in that regard. Moreover, Acme dismissed Chris because of poor performance, not because of allergy issues (although he could claim they were related), so this might not be an ADA case at all.

Could this have been prevented via a pre-employment physical? Maybe, but it’s rare that we ask office workers to undergo such examinations, although this is becoming much more common given the escalating cost of medical benefits. However, at the very least, it’s reasonable to require that the employee complete a comprehensive health questionnaire, which would include questions about allergies (and additionally have the employee certify to the accuracy of that information). Any problems that show up on the questionnaire should be further explored before hiring.
Professor Homer H. Johnson, Ph.D.
Loyola University Chicago
(312) 915-6682
hjohnso@luc.edu

An attorney says:


Whether a court would determine that Chris’ allergic reaction to scents was a disability protected by the ADA is open to debate. If a court made that determination, Acme would have an obligation to make reasonable accommodation unless doing so posed an undue hardship. It’s difficult to envision that a complete ban on wearing perfume and scented lotions would cause an undue hardship. Alternatively, Acme could have accommodated Chris by allowing him to take leave when he was symptomatic. Under the Family and Medical Leave Act, Chris could have taken as much as 12 weeks of leave a year intermittently, and Acme could have provided him with additional leave if he exhausted his FMLA entitlement. Terminating Chris for requesting an accommodation for a condition protected under the ADA as a disability, however, would leave Acme in legal hot water.

But apart from the legal issue, the allergic employee issue is one easily resolved.

Acme got part of the solution right. Normally, an employer can relocate the employee's work area so that he is not in close contact with other employees, and those employees who are nearby can be prohibited from wearing scent. Allowing Chris to wear a mask also was a good idea. Did Acme ever think of adding an air filter to his work area? Or allowing him to use sick days or paid days off on days he was especially symptomatic?

Of course, an employer can dictate an employee's hygiene. Even Acme has had trouble in the past with employees who sport an offensive odor from poor hygiene. Just as an employer can send an aromatic waitress home until she cleans up her act, Acme could discipline and even discharge employees who violated a ban on wearing perfume or aftershave, assuming the company adhered to its normal progressive disciplinary steps and warned the employees first. These employees, after all, are employees at will.
Julie Badel, partner
Epstein Becker & Green, P.C.
(312) 499-1418
jbadel@ebglaw.com

A corporate consultant says:


It seems unrealistic, and unreasonable, to expect that every individual in any group environment be required to accommodate one person. Even ADA's requirements that structural changes accommodate the physically disabled, and that work processes be modified to accommodate certain mental and physical challenges, don’t necessitate acts of accommodation on behalf of each and every employee. In this case, Chris is seeking to dictate that “the masses” change their personal preferences to ease a condition he knew he had when he took the job. It’s Chris’s responsibility to find a work environment that minimizes his discomfort, rather than the responsibility of employers to require other employees to customize the workplace to Chris.

Keeping in mind that Chris is allergic to almost every scent, it's unlikely he would be comfortable in any work environment. However, the need for clerical work is omnipresent, and it seems Chris could have made an effort to find employment in places where scents are at least less common, such as allergy clinics, medical/laboratory facilities, food processing or high-tech cleanroom manufacturing facilities. Clearly, he doesn't have an ordinary condition, and shouldn’t have sought employment in an ordinary environment.

It's outrageous to suggest that Acme refused to accommodate Chris. Indeed, they took numerous initiatives to make him more comfortable, including an all-employee e-mail asking for increased courtesy regarding the personal use of scent, and reconfiguring workspace to insulate Chris from irritants. These actions surpassed what the original medical certification form suggested was necessary. Further, many individuals altered their daily routine to suit Chris. All this - for an employee whose intellectual capital isn't essential to the firm’s competitive differentiation, and whose skills are easily replaceable. Given the circumstances, I’d most assuredly have sought legal ways to terminate Chris during his first 90 days. Failing this, I'd complete a cost/benefit analysis of litigating/settling the case versus implementing an organization-wide telecommuting policy, allowing Chris and appropriate others to work from home.

Clearly, Chris’s discomfort is perpetual, and there’s no degree of on-site accommodation by Acme that would eliminate his discomfort. This fact isn’t Acme’s fault nor is it Chris’s fault. But the time spent attempting to tailor the work environment to Chris doesn't make good business sense.

Francie Dalton
Dalton Alliances Inc.
(410) 715-0484
fmdalton@daltonalliances.com

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