Employee allowed to sue over co-worker’s perfume
December 1, 2008 by Fred HosierPosted in: Here comes the judge, In this week's e-newsletter, Latest News & Views
A city of Detroit planner can sue her employer over her co-worker’s perfume under the Americans with Disabilities Act.
Susan McBride alleges her co-worker’s perfume made it difficult for her to breathe and impossible for her to do her job.
A U.S. District Judge rejected the city’s attempt to have the lawsuit thrown out, saying McBride “has produced evidence that her breathing is significantly restricted” by the co-worker’s perfume, according to The Detroit News.
The judge said it’s not clear the city took reasonable steps to accommodate McBride’s condition.
McBride is seeking unspecified damages.
The city argued McBride “is not disabled because she is not substantially impaired in a major life activity.”
But the judge said McBride does present a potential claim under the federal disabilities law.
Have you ever had an employee complain about a co-worker’s perfume? You can tell us about it in the Comments Box below.
December 1st, 2008 at 9:36 am
It’s so pathetic when the courts have to handle something the employer could have addressed in a few minutes. Unless there is a lot of detail left out of the article, the solution to the original problem seems pretty clear cut. Ask the perfume wearing employee to tone it down or quit wearing it all together – or perhaps put out a note to the whole workgroup asking them to refrain from wearing perfumes, colognes, heavily scented soaps, lotions etc. Of course, in these litigious times, that would probably lead to some kind of first amendment suit. You know, impinging on their freedom of expression because they can’t smell how they want…
December 3rd, 2008 at 8:28 am
It is terrible that this circumstance could not be handled internally. We also had an employee whose perfume was over whelming that other employees were getting terrible headaches from the scent.
The managers kindly asked her to not put so much on, it took a few times but she finally stopped wearing the strong perfume.
December 4th, 2008 at 4:14 pm
This is not as easy to address as you might think. I tried to accommodate an employee with multiple chemical sensitivity disorder, which is what I’m guessing the plaintiff in the article has. It is an extreme sensitivity to certain fragrances. In my situation, the employee requested that we implement a fragrance free workplace policy. We didn’t make it official, but, with her permission, we asked everyone who worked around her to refrain from wearing scented lotions and/or perfumes. All of her co-workers willingly agreed. Unfortunately, that didn’t work. The employee then started having reactions to one guy’s deodorant and another employee’s shampoo. Think about it for a minute… How many scented products do you use every day (laundry detergent, fabric softner, soap, hair products, etc…)? In addition, people with this condition can have reactions to things that others can’t even smell. Don’t assume that the co-worker wore excessive amounts of perfume.
December 4th, 2008 at 4:44 pm
HR in Ohio
Just curious…were you finally able to accommodate or was it impossible?
Also, it still seems to me that this shouldn’t end up in court. Even if the employee in the article has the same condition you’re referring to, the city should have taken all reasonable steps and if reasonable accommodation were impossible then so be it.
Although it’s hard to be sure from the information in the article, it sounds as if the employer didn’t do everything they could to get the situation resolved. If they had solid documentation of good faith efforts to accommodate, I doubt the judge would have found grounds to proceed. It sounds like the city tried to argue she wasn’t disabled, vs. showing they tried to accommodate and couldn’t. Litigation is a poor substitute for communication.
December 5th, 2008 at 12:15 pm
We too faced the same dilemma and the threat of a lawsuit if we didn’t do something about a co-workers choice of fragrence. We added a Fragrence-Free Workplace Policy (written by an attorney) to our employee handbook. The policy stipulates that the use of all scented product are prohibited.
December 5th, 2008 at 12:20 pm
Another example of why the justice system is necessary. It is unfortunate HR and/or management did not find the time to deal with the matter. Having extreme allergies myself, it is quite understandable how such allergic reactions can make it impossible to be productive even when medication is in use. Similar to those who smoke, those who wear perfume, and those who have no allergies to either, are convinced there is no issue here. But the reality is some of us are deathly allergic to both. People really need to be aware of how their behaviors impact others. And then simply be sensitive to those needs. It is considered polite, thoughtful, and the right thing to do. It also represents a civilized society.
December 5th, 2008 at 12:39 pm
I once had an employee complained about a female employee’s ‘over powering’ perfume. I brought it up to the female employee about receiving a complaint about her strong perfume and asked that she tone it down. Of course, she wasn’t happy to hear it, and asked me if she was not allowed to take a shower in the morning any more? Of course, that was not the point, but, some employees do that. Eventually, she toned it down. Then, about six weeks ago, the same female employee started a really bad cough, constantly coughing while working. Something in the season triggered her allergy, there’s nothing communicable. She went to see her doctor a couple of times already and has been using medication to control her coughing. The same employee complained about her perfume complained again and asked me to tell the female employee to ‘cover her mouth’ when coughing and that her coughing was annoying. I pushed back this time. I told him that people learned to cover their mouth when coughing in kindergarten. (Besides, I wasn’t anywhere to witness anything inappropriate from the coughing employee.) I only tell my children to cover their mouth when coughing and that the employee didn’t have anything that was communicable. As to if it’s annoying, we need to show some caring and patience to each other. (This coughing employee sits right in front of my office, if there’s anyone to complain about her coughing, it should be me.) And, he hasn’t said anything since.
December 5th, 2008 at 1:00 pm
We had an associate who’s airways constricted severely every time another associate used a particular perfume and he actually went home twice. After he mentioned what was causing the problem we simply brought it to the attention of the wearer, who apologized profusely to her coworker and never wore it again. It seems so strange that these things wind up in court!
December 5th, 2008 at 1:28 pm
I recall hearing about a court case, assault charge against a student who wore perfume to a class; the class teacher had explicitly detailed her allergy & potential fatal reaction to students @ the beginning of the term – the student defied the teacher’s instruction for “fragrence free” classroom, a misbehavior linked to student’s dislike of the teacher – the teacher had a severe reaction & went to the hospital (not fatal) – I believe the student was convicted of assault – has anyone else heard of this case?
December 5th, 2008 at 1:37 pm
What do you do if you have a highly allergic employee who has to deal with the public? Am I required to post fragrance free zones at my business so that my customers are aware that some one has allergies? My employee has had several severe reactions and I am just waiting for a workmans comp claim or a law suit for not providing a safe work zone. Are we allowed to ask about allergies in pre employment>
December 5th, 2008 at 1:45 pm
Several years ago, I addressed this issue with my employees. I issued a memo asking all to refrain from heavy scents, explaining that our company had several employees prone to allergy attacks and migraine headaches set off by the thick perfumes and aftershaves. Once the others realized that they were not being targeted, but were instead helping to ensure the health of other team members, they fell in line. We still occassionally have the rare occurence when people try new scents, but most of them come in and ask if it’s too much.
December 5th, 2008 at 1:46 pm
I have been in this same situation many times. My eyes get read, irritated and swollen, my airway constricts and it is misery. It all depends on the wearer of the perfume. Some people will realize that it truly poses a problem for you and stop.
One coworker’s idea of accommodation was to apologize after she sprayed it near me in an enclosed area, which she did often. It is all a matter of people and being considerate of others. I avoided her & now she works somewhere else.
A new employee sprayed perfume on 2 separate occasions. When she realized that the connection between my allergy attacks and her spraying perfume, she found an alternative scented product that didn’t travel to my office.
For the record, it never even occurred to me to complain to HR about it. I think of it as an issue that I have that I do my best to deal with.
Litigation? Seems a bit much to me. Not to be harsh, but whatever happened to if you don’t like your current job, find another one? Can we continue to expect employers to be (held) responsible for everything without major ramifications?
December 5th, 2008 at 2:00 pm
As an HR professional with MCS, I understand the problem. Many people simply don’t care and continue to wear excessive perfume and if it bothers you, stay away. Have had a VP say, “What; do you want me to stink?” I advised him about the use of daily showers to prevent that. He refused to stop wearing his perfume. I’ve had complaints and published articles about the effect on many employees asking them to be considerate. Most hospitals and clinics are fragrance free (for many years). In today’s litigious society, I fully expect a lawsuit to be filed one day. Fragrance free seems to be the answer, but most sufferers are too embarassed about their condition to threaten. There’s also the fact that billions of dollars are made in the cosmetic industry and challenges to scent free workplace may also be forthcoming. Newflash to many department stores. Lots of us won’t (can’t) shop at your stores at all because of the dibilitating smells.
December 5th, 2008 at 2:03 pm
Paula
You can’t ask about medical conditions or disabilities in the interview, but you can and probably should fully describle the job (including frequent contact with members of the public and all the things that come with that) and ask prospective employee if they can perform all the duties with or without reasonable accommodation. You will either get their committment that they can or open a dialogue about what kind of accommodation they might need.
December 5th, 2008 at 2:48 pm
What if EE worked for a perfume factory or a place that produced things that an employee might be allergic to? What if someone is allergic to someones laundry soap? Hairspray? Toothpaste?
I think people have forgotten how to be people and instead rely on “law” to determine human discourse. It’s so sad. One person beleive their righs trump everyone elses. Whatever happened to “get over yourself and deal with it?” Whiners
December 5th, 2008 at 3:01 pm
I think the considerate as well as sensible thing to do is ask the employee who wears the overwhelming perfume to tone it down or stop wearing it – but when the “allergic” employee is complaining about other employees’ scented soap, shampoo or deodorant – that is going a bit too far. Trying to accomodate an employee who is that allergic to fragrances creates an undue hardship I think. When you ask employees to give up what is a basic part of their personal hygiene to accomodate one person who has a super-sensitivity to fragrances, that makes no sense. There is always going to be some type of smell in the workplace and trying to accomodate this lady’s super-sensitive nose could lead to even more smells – in the form of body odor. I don’t know about you guys, but I have had to deal with that issue in the workplace several times before. I have known more than one manager who refused to address the body odor problem with the associated body. Where was my accomodation when I had to smell these offensive fragrances?
December 5th, 2008 at 3:27 pm
This can be a real problem — I am the accounting manger for a company and it clearly states in our handbook that perfume/cologne must be kept light. HOWEVER, our HR Mgr. puts it on by the gallon!!! I am not disabled and do not have breathing problems, just seasonal allergies and after she has been in my office I sneeze, cough and gag for about 30 minutes (depending on what she is wearing that day). And heaven forbid if you have to go into the bathroom behind her — several times a day she goes in there and puts on more, leaving the air in the bathroom and for about a 50 foot radius around un-breathable. How are you supposed to handle that? I can’t exactly complain to the HR dept and I am not the only that is seriously bothered by it — our sales manager sneezed for over 45 minutes a couple of days ago after she had been is his office.
December 5th, 2008 at 3:37 pm
Darla, you go to her supervisor for the complaint and so on and so on until something has been finalized.
December 5th, 2008 at 3:44 pm
There are two issues at play here.
How do you deal with nuisance issues that causes distention among the ranks and how do you provide a safe workplace.
Everyone could probably make a case about safety relating to most any topic (poor hygeine could lead to more exposure to germs/disease, etc.) but not all instances are proven health and safety issues. In cases where it is known or generally accepted that a health or safety issue is at stake, the employer must act to correct. In areas where there is debate, the employer has to mediate in a fair and equitable manner or discrimination and bias will be alleged and there will be many disgruntled individuals and distractions from the job at hand. Sometimes the loss in productivity and turnover, as well as, responding to EEO and other governmental investigations or lawsuits can exceed any possible governmental fine.
December 5th, 2008 at 3:55 pm
Our HR Manager put out an email only recently, after an employee complained that employees in her area were coming back from lunch and spraying themselves with perfume. The employee affected was moved to a less obtrusive area (now she complains that there’s too much sunlight from the window), and the perfume situation seems to be under control for now. This is a medical practice and we are all advised and reminded that our patients can be sensitive too. Employees who won’t comply have some growing up to do………….It always comes back to that “do unto others” idea.
December 5th, 2008 at 4:15 pm
Liberty,
I don’t think you understand the severity of this. Sometimes, you may be right that people just prefer not to smell certain fragrances. However, this is not the case all of the time. This is probably why employers are expected to have reasonable accomodations if a medical necessity is shown.
Its not that people think that their rights trump others, its that society often dictates that your “rights” end where other’s rights begin.
I have a co-worker who is extremely sensitive to fragrances and CAN NOT BREATHE when people have on heavy fragrances or even when an aerosole such as Lysol is sprayed or popcorn is burnt in the microwave. She has a rescue inhaler and even with this, has to leave the worksite to get fresh air and is literally incapacitated for 10-15 minutes until she can catch her breath. I would suspect that someone’s right to breathe may actually be more important than someone’s right to wear a fragrance at the workplace.
The workplace is exactly that, a place to accomplish business. Breathing directly contributes to a worker being able to perform the job whereas wearing perfumes does not normally contribute significantly to a person being able to accomplish the job. An employer permitting the use of perfumes, etc is a benefit, not a right. However I believe most courts would rule that a person may be considered eligible for a reasonable accomodation if they are limited in the major life activity of breathing. If managers and HR would take reasonable steps as dictated by the law, things like this should never make it to court.
December 5th, 2008 at 6:54 pm
We also have a person here in a smaller open office with a medically diagnosed allergy to purfumes. Her breathing becomes restricted and has broken out with visible hives. She does restrict her personal activities by not attending movies, etc placing herself in areas of risk. She has been affected by perfumed deoderants and hair sprays but does work with us in managing these occurances.
I am constantyly amazed when I must re-enforce the no scent rule at our office, that the persons involved will consider my request to refrain a personal bashing, versus a consideration for an affliction that there is zero simpathy for. These persons will begin with a little something and just raise the bar until it is noticed. I detest being put in the position of nose police when the obvious scent (IE arm’s length range) is present and denied.
December 8th, 2008 at 1:24 pm
I have severe allergic reactions to most perfumes. I’m also a smoker, with no reaction to cigarette smoke. I agree with smoke-free environments because the smoke and smell really bother a lot of people. I never smoke in the presence of anyone I know to be sensative to it, and if I am smoking – even in my own home – and it’s bothering anyone (even if they don’t actually say it but I can see it bothers them), I stop immediately. I really would like the same courtesy with the perfume fumes that make me so desperately ill. My friend, who is even more sensative than I, actually ended up with double pneumonia after a forced exposure during a three hour meeting. This is really serious business. No smoke – no perfume!
December 8th, 2008 at 4:03 pm
To HSM:
Not all “obvious scents” are from people wearing cologne.
I am amazed of the “damned if you do” “damned if you don’t” dichotomy in our society. Even on these blogs, there are those who rail about the employees who come to work smelling like human beings without the decency to wear deoderant. Now there are those who want “no scents.”
I find it very difficult to go scentless today. Every soap, shampoo, laundry soap and fabric softener has a “scent.” We got room fresheners and Febreeze sprays. We wear deoderant, cologne, aftershave, perfume, etc. Just about every hand lotion and moisurizer has a scent added. Travelling on the bus or just walking around, you pick up the scents of those around you.
Whats really sad, is that after you have been around the scents for awhile, you don’t even smell them.
So, I can understand how a person who lives in our society might deny having a scent and smell like a fruit stand.
I am curious on how your “no scent rule” is working in your office. Is it truly “no scent” or just “no different scents” that we can detect?
December 8th, 2008 at 4:20 pm
Our ‘No Scent’ rule is worded no Perfume, and is intended for products that are sold as perfume and includes examples such as lotions with perfume added. While most products we use are scented in some manner, most of these are not ‘invasive’. When that scent fills the area and remains after the person has left, this qualifies as perfumed.
The person affected makes every effort to not cause a hue and cry over every perceived scent, but we as reasonable caring coworkers need not ignore the effects we have control over, either. I believe this is what used to be known as a “happy medium’, with us all doing our best to be reasonable.
January 21st, 2009 at 12:25 pm
I work in a call center that has a “restricted perfume and cologne use” which is why I decided to work there. However, they do not enforce this rule nor do they intend to because it “infringes” on the other employees rights — so I either have to find another job or deal with their very lacking attempts at accommodations. I just wanted to be put in the farthest corner away from all the traffic — but because my doctor did not specify that they refused. LOL headed to doctor now for that accommodation among a few others I have thoughts of. Not asking for anything more than the ability to do the job I have and the job I like to do.
August 3rd, 2009 at 1:22 pm
So if the employees don’t comply with the written “restrictions” and management does not enforce it, what do I do next? I’m planning to leave the building without “clocking out”. We clock in and out everyday. Why should I not get paid for work I am capable of doing, but the employer has not provided a safe work environment? What if they fire me for leaving the work space? I’m getting the feeling they want me to quit…but I refuse to abandon myself that way. I also have firbromyalgia and will be seeing the doctor this week with regards to my MCS. HELP!!!
August 18th, 2009 at 11:45 am
When I read “MJ’s” response, I thought I had written it. Everything she/he said I have experienced exactly. Many people with MCS can tolerate soap, which is all one needs to not smell badly. For those who rely on perfume to feel acceptable, I wonder why one would favor no-smoking in the workplace, but not care about the damage some scents can do to a person. This issue should not reach the courts, but , since employers and/or employees won’t accommodate, it will.
And I too do not go into retail stores where perfume is sprayed or scented candles are present.