Can an employer lawfully express concern about how a worker’s surgery-related bad smell could affect the business? And is it unlawful disability-based harassment to ask an employee’s wife, also an employee, if her husband is following his doctor’s recommendations for reducing the odor?
The answer is yes to the first question and no to the second, a federal judge in New Jersey found, agreeing with the employer on both counts.
Louann Clem failed to explain how the questioning and other remarks by the owner and president of Trenton, N.J.-based Case Pork Roll Co. would have created a hostile work environment in the mind of an objective employee, Judge Freda L. Wolfson of the U.S. District Court for the District of New Jersey said.
The questioning came after Clem’s husband Richard had gastric bypass surgery to treat his morbid obesity and diabetes and experienced “unusual and unpleasant complications” upon his return to the office. The complications included “extreme gas” and other problems requiring frequent restroom use.
According to Clem, Case Pork Roll owner Thomas Grieb and company president Thomas Dolan asked why her husband was having the side effects and whether he was following his doctor’s recommendations “Tell Rich that we are getting complaints from visitors who have problems with the odors,” they said, adding that the situation was interfering with their running of the office and couldn’t continue.
That’s not the sort of severe mistreatment required to state a claim under the Americans with Disabilities Act, even if Clem found it subjectively harassing, Wolfson ruled in July. But the judge dismissed the case without prejudice, to give Clem a chance to bolster her allegations.
Clem didn’t do enough with that second chance, the court found Jan. 4 in an unpublished opinion. Although she filed a second amended complaint adding new allegations regarding the alleged harassment, her new pleadings only supported her view that she was “embarrassed and offended by her supervisors’ remarks,” the court said.
Her additional assertions didn’t establish how Clem’s work environment was objectively hostile, the court ruled.
Wolfson therefore rejected for a second time Clem’s federal associational discrimination claim against her former employer for failure to state a viable claim under the ADA.
The judge pointed out that other courts “from across the country” have rejected similar workplace harassment claims founded on complaints about a worker’s body odor or bathroom use. She cited decisions by federal courts in Michigan, New York and Oklahoma.
More discussion of the issue is available in Bloomberg BNA’s “Workplace Odors Are No Laughing Matter.”
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