Oregon State Bar Bulletin — APRIL 2004

Legal Practice Tips
Something Stinky This Way Comes
Office odor sensitivity and the Americans with Disabilities Act

By Jeff Duncan Brecht

We have all experienced it. You wedge into a crowded elevator and are suddenly assaulted by a nauseating arsenal of odors. The stench of carcinogenic toxins wafts over you from the cardigan sweater of the fellow on your left. (He’s been puffing Marlboros in the designated smokers’ corral outside the building.) On your other side are a couple of young professionals, a man and a woman. The man has seemingly been swimming in a vat full of his great-grandfather’s Old Spice. Your nose hairs curl in retreat. The woman has used an exotic brand of hair styling agent that emits invisible antifreeze-like vapors from her scalp. You decide to breathe through your mouth for the ride up to your floor. And behind you stands a fellow wearing bib-overalls who has been painting a suite of offices. Protruding dapperly from his breast pocket is an odiferous rag saturated with mineral spirits used to remove paint spills. Just as you begin to wish you had taken the stairs, the door slides open. You stumble from the elevator, relieved, but no worse for the wear. Not everyone is so lucky.

Some experts believe that about four to six percent of the population suffers from a condition called Multiple Chemical Sensitivity (MCS). MCS is claimed to be a condition that causes susceptible persons to experience adverse physical reactions to chemicals and related odors. When these people are exposed to the culprit chemicals, they might experience nausea, headaches, blurred vision, dizziness, fatigue, impaired memory, rashes, itching or difficulty breathing.

On the other hand, many researchers (and courts) are skeptical that MCS is a legitimate medical condition at all, believing that the origin of the adverse symptoms is psychological. In 2002, the federal district court in Oregon noted that no district court had 'ever' found a diagnosis of MCS to be particularly reliable. Even so, there are other medical conditions, such as asthma, chronic sinusitis and single chemical sensitivity, which, while similar in some ways to MCS, have been viewed by courts with less skepticism. And, whether the conditions are real or imagined, many individuals who claim to be odor/chemically sensitive apparently do improve when they eliminate their exposure to the chemical triggers.

What are those triggers? They include many of the same products — some of which are stinky — that are commonly found in and around a typical office environment. Cleaning agents, cologne and perfume, ink, pesticides (you may not want to know it, but somebody probably sprays for roaches at your work site), fingernail polish and even copier toner can be problematic for a chemically sensitive individual.

The ADA: 'Those Who Smelt It, Dealt It'
This is important to you and your clients, because courts have held that persons claiming to suffer from MCS-like health problems may have a legitimate disability under the Americans with Disabilities Act. The ADA, of course, is the federal law that gives civil rights protections to individuals with disabilities. Those protections are akin to those provided to individuals on the basis of race, color, sex, national origin, age and religion. The ADA requires that employers (and certain other entities) provide equal opportunities to individuals with disabilities as to an array of employment practices, such as hiring, firing, advancement, job assignments, pay, benefits and training.

What is an ADA disability? An individual has a 'disability' under the ADA if he or she has a physical or mental impairment that substantially limits one or more so-called 'major life activities' and has a record of such an impairment1 — or even if he or she is merely regarded as having such an impairment. The ADA also prohibits discrimination against persons who associate with disabled individuals.

And what are 'major life activities'? Generally, these are activities such as seeing, hearing, speaking, walking, performing manual tasks, learning, caring for oneself and, as you may have suspected by the title of this article, working and breathing.

Not surprisingly, whether a particular person has a bona fide ADA disability is a heavily litigated issue. People with substantial and long-term impairments, such as epilepsy, paralysis, HIV infection, AIDS and substantial hearing or visual impairments are the types of persons that courts have found to be disabled under the ADA. But people with short-term minor, non-chronic conditions, such as sprains, broken legs or arms or the flu, generally are not covered. Courts have even determined that an employer does not violate the ADA if it discriminates against a person because that person is permanently ill — just so long as that person is not 'disabled.'

More often than not, workers claiming to have chemical/odor sensitivity-type disabilities face a formidable challenge. This is because courts are required to apply an individualized analysis to every claim of disability. The severity of these sensitivity conditions can vary a great deal from person to person, and the frequency with which a person experiences sensitivity episodes also varies greatly. In many cases, with proper treatment, symptoms can be significantly controlled. And if the condition can be controlled, the worker will have a tough time proving that the condition substantially limits her or his ability to work or breathe (i.e., that she or he has a bona fide ADA disability).

Ironically, the ADA’s anti-discrimination protections themselves are discriminatory in that they only apply to 'qualified' individuals with a disability. To be 'qualified,' the worker must meet the legitimate skill, experience, education or other requirements of an employment position that he or she holds or seeks. To meet this criterion, the worker must be able to perform the 'essential functions' — and only the 'essential functions' — of the position with or without a reasonable accommodation. By requiring that persons have the ability to perform 'essential' functions, the ADA helps assure that people with a disability will not be considered unqualified merely because they may be unable to perform certain tangential job functions.

The Duty To Reasonably Accommodate
If a worker is qualified to perform essential job functions except for limitations caused by a disability, the employer must then determine whether the worker could perform those functions if she or he were given a reasonable workplace accommodation. The Ninth Circuit Court of Appeals has explained that the ADA requires employers to engage in a 'good faith interactive process' with employees in order to identify appropriate reasonable accommodations. This obligation is triggered when a disabled employee requests an accommodation or when the employer realizes that such an accommodation is needed. What is a 'reasonable' accommodation? Every case is different, but special adjustments at the workplace that would be significantly difficult or prohibitively expensive for an employer to implement are generally not reasonable.

Depending on the circumstances, reasonable accommodations for an odor/chemically disabled individual might include such things as improving workplace ventilation by using fans or other means or restricting the use of colognes and perfumes. In one case, a court determined that a teacher’s request that a school use special cleaning products that were not respiratory irritants was reasonable, where the teacher suffered from sinus problems. In another case, the court explained that providing an asthmatic train engineer with a tobacco smoke-free locomotive work environment would not impose an undue hardship upon an employer.

Retaliation Nation
All of this means that your clients might legitimately raise their eyebrows if they learn that one of their employees has gone home with a sick headache on the day they installed new carpet in their office foyers. (New carpets, which may contain a chemical stew of styrene, urethane, methyl butane, polypropylene — not to mention the ever-nefarious Scotchguard — have been known to fuel the anecdotal fire of chemical sensitivity-type complaints.) Why should your clients care? Because under the ADA, even if an employee cannot establish that she is disabled, that employee may still have an ADA claim if she can show that her employer took an adverse action (i.e., retaliated) against the employee because she engaged in activity that is protected under the ADA.

In one recent case, an employee, according to her doctor, was 'hyper sensitive' to various workplace fragrances — including 'white out,' felt tip markers, hair relaxers and plug-in room deodorizers. The employee asked her employer if she could 'sniff' new employees who were stationed near her for troubling odors. The employer denied that request. The employer did, however, repeatedly permit the worker to move her seat and, eventually, to move her desk to another part of the workplace. But after the employee complained to the EEOC and requested that the employer adopt a fragrance-free policy in the workplace, communications broke down. Eventually the employer fired the worker for 'insubordination.' If you guessed that the worker then sued, claiming that the employer retaliated against her for requesting an ADA accommodation and filing an EEOC complaint, you are right. The employer tried to have the case thrown out, but the court explained that the ADA protects not just disabled persons, but 'any individual' who opposes an act that is unlawful under the ADA or who has made a claim under the ADA. The court concluded there was sufficient evidence to let a jury decide if the employer had, in fact, fired the worker in retaliation for engaging in activity that the ADA protects.

Beware Unintended Perceptions
Under a significant quirk of the ADA, your client’s business could also find itself sideways under the Act if one of its employees can show that your client mistakenly 'regarded' that employee as disabled and, because of that misperception, discriminated against the employee. That’s right — under the ADA, such non-disabled persons — by virtue of the employer’s misapprehension — are, nonetheless, considered to be disabled.

The Ninth Circuit has explained that for an employee to establish that she was 'regarded as disabled,' she must show that the employer wrongly believed that she possessed an impairment that, if she actually was so impaired, would qualify as an ADA disability. So let’s assume that one of your client’s staff tells your client that he develops a 'code red' migraine whenever he gets a whiff of his supervisor’s Hai Karate aftershave. In response, your client discusses the matter with the supervisor, and he agrees to lighten up on his workplace cologne usage. Is it possible that this moderate response to the employee’s complaint could lay the foundation on which to establish that your client 'regarded' that employee as disabled? Not likely under these facts. Still, you can probably now see that, under certain circumstances, by simply trying to create and sustain a pleasant and unobjectionable work environment, your client could get into ADA hot water.

How should your client (or your own law office, for that matter) respond if an employee complains about office odors will, of course, depend on the circumstances. But one careless misstep could create the appearance that your client’s business 'regards' an employee as disabled. In one recent case, a worker who had a mental condition that could be controlled with medication presented the court with affidavits from her co-workers that her supervisors commonly referred to her as 'crazy' and 'certifiable.' The court explained that where the major life activity alleged to be affected is working, the worker must show that the employer thought that the worker was unable to work in a broad range of jobs, not merely unable to perform a single, particular job. Even so, the court concluded that the evidence went 'well beyond a mere personality conflict' and that a reasonable jury could conclude that the worker’s supervisors 'regarded' her as unable to perform a number of jobs.

Conclusion
The Americans with Disabilities Act is a complex and formidable statute. If your client learns that one of its employees has claimed to have a sensitivity problem with odors or chemicals in the workplace, your client will want to avoid making a knee-jerk and perhaps costly response. Should your client ask that its employees avoid wearing perfumes, colognes and scented lotions at the office? Not necessarily. But even absent worker complaints, some offices have done so as a preemptive measure. Many of your clients’ workers (and customers) may be appreciative. Others may be indifferent. Others offended. The important thing to remember is that the ADA is out there, and you should make sure that your clients are fully compliant with its requirements.

Endnote

1. To have a 'record of such an impairment,' your client’s employee must have a history of, or have been misclassified as having, an impairment that substantially limited a major life activity. But under either theory, the record-of-impairment standard is satisfied only if the individual actually suffered a physical impairment that substantially limited one or more of her major life activities. For example, a court found that a worker who had been hospitalized with multiple sclerosis did not have a record of an ADA impairment because the worker’s hospitalization and MS symptoms affected her for only a brief period of time and did not presently impact her ability to perform the job.

ABOUT THE AUTHOR
Jeff Duncan Brecht is an attorney in the Employment Law and Commercial Litigation groups at the Portland law firm of Sussman Shank. He represents employers in matters of employment advice and litigation. Brecht serves on the OSB Federal Practice and Procedure Committee. He is also a member of the Rotary Club of Portland, where he serves on the Domestic Violence and Programs committees. He also volunteers to represent victims of domestic violence through Legal Aid. Apologies to Ray Bradbury and the characters of his 1962 novel, 'Something Wicked This Way Comes.'

© 2004 Jeff Duncan Brecht


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