Excerpted from New Jersey Employment Law Letter, written by attorneys at the law firm Pitney Hardin LLP

A federal appeals court recently affirmed the dismissal of a disability discrimination claim based on perfume sensitivity. It found that the employer reasonably accommodated the employee by taking various measures, including prohibiting perfume in the workplace.

Facts
Linda Kaufmann began working for GMAC Mortgage Corporation in Pennsylvania in June 2002. Soon after starting the job, she experienced "severe allergic reactions" to her coworkers' perfumes. GMAC took various steps to accommodate her, including development and implementation of a "perfume-free environment."

GMAC also moved Kaufmann's desk, changed the air filters by her workspace, and provided her with a desktop air filter and fan. Throughout her employment, the company repeatedly disseminated the perfume-free policy to employees and spoke directly with certain employees who Kaufmann alleged violated the policy.

Kaufmann took a leave of absence to address her allergies from September until December 2002. Following her return, her attendance was erratic, and she failed to perform her job. As a result, GMAC fired her in May 2003.

Kaufmann sued GMAC, alleging violations of the Americans with Disabilities Act (ADA) and Pennsylvania state law based on a failure to accommodate her disability, harassment, and retaliation for exercising her rights under the Act. Although the district court questioned whether an allergy to perfumes and scents constituted a disability under the ADA, it granted GMAC's request to dismiss the case before trial. Kaufmann appealed.

Third Circuit's decision
The Third U.S. Circuit Court of Appeals upheld the dismissal of Kaufmann's claims. It didn't, however, address whether her allergy to perfumes and scents constituted a disability under the ADA. Rather, the court focused on whether GMAC provided a reasonable accommodation. It concluded that the company's actions to eliminate perfume in the workplace and improve the air quality in Kaufmann's workspace constituted a reasonable accommodation.

Kaufmann's demands for additional measures weren't reasonable. "Kaufmann does not explain how it would be possible to create such a perfectly-sealed environment" like the one she would prefer, explained the Third Circuit. The court also agreed that her retaliation claim failed because, among other things, GMAC fired her for attendance issues.

Bottom line
This case underscores the importance of addressing and accommodating an employee's health-related concerns, even in situations in which it's unclear whether the underlying condition is a disability protected by law. Unfortunately, this case fails to address whether an employee's sensitivity to perfume constitutes a disability under the ADA.

Nevertheless, because it is rarely clear whether an employee's alleged medical condition constitutes a disability under the law, it's advisable for you to carefully consider all employee complaints and requests that involve a health-related concern.

Addressing the issue of scents (good and bad) in the workplace is always a challenging one. For fragrances and perfumes, implementing a workplace policy is an option, but that also creates the need to police abuses of the policy. Changing office locations and providing air filters and fans are other alternatives.

For odors, the issue is more complicated if it involves employees who have an offending odor. In those instances, the employees with the alleged odor may have their own health-related issues that are covered by the ADA or state law. In that circumstance, be careful not to discriminate against one employee while accommodating another.


Ultimately, when dealing with workplace scents, you should address the issues on a case-by-case basis, weigh the options, and implement sensible and effective changes.
Copyright 2007 M. Lee Smith Publishers LLC. This article is an excerpt from NEW JERSEY EMPLOYMENT LAW LETTER. This newsletter is intended for general information purposes only, and should not be used or taken as legal advice or legal opinion on any specific facts or circumstances.