Don’t Dodge Sensitive Workplace Issues

Stephanie JonesFoul body odor, bad breath and extreme flatulence aren’t laughing matters in the workplace.  Employees' poor hygiene or bad habits may affect their ability to get along with co-workers, hamper overall productivity, and even pose health and safety risks to others.

The topic of sensitive workplace complaints arose Nov. 6 at the American Bar Association’s Labor and Employment Law Conference in Philadelphia. Stephanie Jones of the Equal Employment Opportunity Commission led a panel discussion exploring how management and human resources personnel may effectively respond to employee complaints and accommodation requests.

Presenters cautioned that employers should take a serious and proactive approach to avert the risk of offending workers and violating federal laws. Bloomberg BNA caught up with Jones after the conference for a follow-up interview.

*Jones’s responses don’t represent the official position of the EEOC.

Bloomberg BNA: When a complaint about employee hygiene surfaces, panelists agreed that inaction isn’t advisable and that communication with affected employees is critical to resolution of the problem. Generally, what steps should an employer take to address the issue?

Jones: In my opinion, the employer must first recognize that an issue exists. Whether the employer learns about the issue from the employee who has the problem or from the employee’s colleagues determines how the employer should respond. 

If the employer learns directly from the employee that he or she has a hygiene issue, the employer should talk with the employee to learn if the issue is related to a medical condition, is a result of a medical condition, or is related to the employee’s national origin or religion. Once the employer learns the underlying reason for the hygiene issue, they should treat the matter similarly to how they would treat it if the underlying issue was a back impairment or a religious accommodation request. 

If the employer learns of the issue because the employee’s colleagues complained or management noticed the issues themselves, the employer still should address the issue.

But remember that under the Americans with Disabilities Act, employers must be concerned about making an improper medical inquiry, so they should tread lightly. 

Further, if the hygiene issue is because of a medical condition, employers should remember that they can’t disclose medical information—except in very limited circumstances—to the employee’s colleagues. When addressing the issue in the work environment, employers should be cognizant of these matters. 

Bloomberg BNA: During this process, what information should employers keep as records? 

Jones: Employers should keep the same types of records they would preserve if it was another type of Title VII or ADA investigation.  If the employer would keep notes of all interviews conducted in a sexual harassment claim, they should keep and maintain the same notes in these types of matters. 

Bloomberg BNA: Employers may have a difficult time discerning whether a disability is the root cause of an employee’s hygiene problem or sensitivity. In view of the ADA’s restriction on disability-related inquiries and prohibition on medical disclosures, what are some guidelines for employers as they engage in the interactive process and respond to questions of co-workers?   

Jones: Obviously, these are very difficult issues to navigate in the work environment. Our panel gave several best practices of what an employer should do. If you look on the ABA's website, our PowerPoint presentation and the panelists’ papers are good resources for how to navigate these issues.   

Ultimately, the employer shouldn’t ignore these issues and hope they go away. If the employer notices that an employee is spending a decent amount of time away from his or her desk and is in the bathroom, the employer can ask the employee if everything is “ok.”  If time away from the desk is something that normally would warrant employee discipline, but the employer suspects that the reason the employee is away from his or her desk is because of a health issue, it’s reasonable to follow up with the employee to discover the issue.  

An employer shouldn’t immediately jump to requiring the employee to go through a battery of improper medical examinations in lieu of having a discussion with the employee about what the issue is. It’s important to make sure that these conversations occur within the private confines of either HR or management’s offices—not on the open floor where others can hear. 

The best piece of advice I have is to encourage communication. Once the employer actually has had a conversation with the employee, the two of them can better discuss what reasonable accommodation, if any, is applicable and necessary for the situation. 

With respect to responding to questions of co-workers, employers must remember that disclosure of an employee’s medical condition to a third party shouldn’t occur, except in limited circumstances. They should tell co-workers that any concerns in the workplace are being addressed and that everyone’s privacy must be respected, as they would want their privacy respected. 

Bloomberg BNA: As to Clem v. Case Pork Roll Co. (D.N.J., No. 3:15-cv-06809), an association bias case filed in September 2015 involving a former employee whose husband was fired for extreme gas after gastric bypass surgery, you noted the underlying question is whether side effects of medication or medical procedures constitute disabilities under the ADA.  Does the Third Circuit’s analysis in Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 23 AD Cases 27, 2010 BL 80561 (3d Cir. 2010), provide any clarity on the issue?  Other case law?  

Jones: Great question. In the Sulima case, the Third Circuit ruled that an employee who claims he is disabled as a result of his medication or other medical treatment must prove that (1) the medication or treatment is required in the “prudent judgment” of the medical profession; (2) there is no available alternative that is equally effective and lacks similarly disabling side effects; and (3) the treatment isn’t solely required for an impairment resulting from the employee’s voluntary choices.  

I think points two and three of the court’s holding are interesting. The question of whether there are alternatives available and whether the treatment is “solely required for an impairment resulting from the employee’s voluntary choices” likely will be areas that other courts further analyze in determining whether the side effects of medication are enough to qualify as a disability. 

In light of the number of people getting gastric bypass (or other weight loss) surgery and the excessive use of medication in our country, I expect we will see a rise in the number of these types of cases, which will lead to more case law developing.  

Bloomberg BNA: How might religious or national origin discrimination claims arise in the context of complaints about poor hygiene (e.g., foul body odor, excessive sweating)?  

Jones: Religious or national origin discrimination claims might tie to complaints about poor hygiene because of various religious practices or practices specific to certain national origins. 

For example, let’s say that a religion requires certain herbs or incense to be burned or adorned around the body when one isn’t in the home. If the person comes to work and has excessive body odor from the herbs/incense mixture and others find the smell offensive and complain, the employer might be faced with a religious discrimination claim if they ask the employee to please stop coming to work smelling like incense.   

As another example, smells emanating from the bodies of citizens of certain countries, who frequently prepare or ingest potent foods or spices, might bother others. If the workforce is segregated because of complaints about the smells of those persons, an employer might be setting itself up for national origin discrimination claims.   

Bloomberg BNA: Even if an employee has no statutory rights, he or she may have valid recourse under a collective bargaining agreement. What employee rights might a CBA provide? 

Jones: As Hope J. Singer, our union guru from Bush Gottlieb, repeatedly stated during the presentation, the employee’s rights are based on what the CBA states. I’m not a union attorney, nor do I purport to have expertise in this area, but in situations where a CBA exists, the employee should review the CBA and discuss any concerns with a union representative.   

And if I received any call asking me about what an employee with a CBA should do, I would send them to Ms. Singer for advice (making sure that I send her the CBA ahead of time)! 

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