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By Patrick Dorrian
Dec. 10 — A colleague who has bad breath. Cooked fish in the company break room. An over-fragranced co-worker. While a source of laughter for some, such odors may significantly disrupt a workplace and should be taken seriously, employment lawyers and others told Bloomberg BNA in a series of interviews.
Regardless of whether it's a situation involving an employee who smells or one who has or develops a smell sensitivity to perfume or something else, “things can get serious really quick” and undercut workplace harmony and productivity, management lawyer Maria L.H. Lewis told Bloomberg BNA Dec. 7.
“Don't make a joke about it” even if the intent is to lighten things up and facilitate conversation, Kathleen Lapekas, a human resources consultant in Evansville, Ind., told Bloomberg BNA Dec. 4 . These situations can be embarrassing to talk about, and managers and human resources personnel need to treat them sensitively, she advised.
“People's livelihoods are involved,” employee rights attorney Scott Pollins in Philadelphia told Bloomberg BNA Dec. 3.
An employer that fails to address a workplace odor issue “head on” and instead tries to downplay an employee's concerns could find itself exposed to potential liability under any number of employment discrimination laws, Lewis, who's with Drinker Biddle & Reath LLP in Philadelphia, said.
One example of how these situations can spiral out of control and lead to costly litigation occurred in Detroit a decade ago.
In Weber v. Infinity Broadcasting Corp., a federal jury in Michigan in May 2005 awarded $10.6 million to a female disc jockey who claimed under the Americans with Disabilities Act that her country music radio station employer failed to accommodate her allergy to a fellow deejay's perfume (E.D. Mich., No. 2:02-cv-74602, verdict 5/23/05) (102 DLR A-1, 5/27/05).
Erin Weber, who also prevailed on claims of sex-based pay discrimination, later had her recovery reduced by the court to $814,000 (17 AD Cases 804, 98 FEP Cases 523 (E.D. Mich. Dec. 14, 2005)) (245 DLR A-6, 12/22/05), plus $423,807 in attorneys’ fees and costs, before the parties reached a confidential settlement while the case was on appeal to the U.S. Court of Appeals for the Sixth Circuit.
“To date, I believe it's the largest employment discrimination verdict ever in federal court in Michigan,” one of Weber's attorneys, Raymond Sterling in Bloomfield Hills, Mich., told Bloomberg BNA Dec. 7.
Buttressing that point, a Society for Human Resource Management spokesperson told Bloomberg BNA Dec. 4 that the issue of odors is of “high interest” to human resources professionals and is one of the questions her organization is asked about most often by its members.
“This year, we've had more than 7,700 requests to our Knowledge Center for resources on fragrance-free workplace policies,” she said.
A workplace odor issue is “something every employer can expect” to encounter at some point, Julie T. Bittner told Bloomberg BNA Dec. 8. Bittner, a partner with management-side firm Gonzalez Saggio & Harlan LLP in West Des Moines, Iowa, said that's especially so given the gamut of potential workplace odors.
In Bittner's experience, a perfume or fragrance sensitivity is the most commonly occurring, followed by smelly foods, such as microwaved tuna, she said. Personal hygiene issues related to a medical condition and smokers who bring evidence of their habit into the workplace on their clothes round out her top four.
It's a tough issue because nowadays people use a lot of scented products, including shampoos, Carolyn Beem, a senior public affairs manager with L.L. Bean Inc. in Freeport, Maine, told Bloomberg BNA Dec. 4.
Employees with body odor, those who regularly doesn't wash their hands after using the restroom, and workers who don't wear deodorant or who don't properly launder their clothes present scenarios that can trigger workplace issues, Lapekas said.
In one case filed in September in federal court in New Jersey, an employee alleged that a pork roll maker discriminated against an employee who developed chronic flatulence following gastric bypass surgery (Clem v. Case Pork Roll Co., D.N.J., No. 3:15-cv-06809, complaint filed 9/11/15).
Employee odor issues generally come to management's attention because someone complains that their colleague smells or engages in behavior that causes a smell, Lapekas said. The person emitting or causing the odor often isn't aware of the problem, but most want to know, she added.
Employee odor issues and perfume or chemical sensitivities can lead to work disruptions such as employee “prairie-dogging,” where workers pop up their heads over cubicle walls to chat or gossip with co-workers, Bittner said. That can be a costly drain on employee productivity and morale, she warned.
Issues are most likely to occur in sealed, modern office buildings that recycle and recirculate air, rather than in jobs that take place outdoors or in older office buildings with windows that open, management attorney Peter J. Gillespie of Fisher & Phillips in Chicago told Bloomberg BNA Dec. 3.
Problems can arise in any type of workplace where employees are in close physical proximity to each other or to customers, according to Lewis. Jobs that require workers to engage in physical activity also can produce their share of body odor issues, she added.
L.L. Bean has a variety of workplace types—from call centers to manufacturing floors—where employees work in especially close proximity to each other, Beem said. Those situations might create an opportunity for problems, she said.
Broaching the subject with an employee “can be a tricky situation,” Gillespie said.
The nature of such discussions is highly personal, and an employee may be inadvertently offended by something said by the company's representative or the way in which it's said, he warned. Therefore, conversations between management and employees about workplace odors should be approached delicately, Gillespie advised.
“Nobody likes to be told that they smell,” he said.
Lapekas said the employee's manager should conduct the initial meeting with the worker, “unless it's someone the employee has a bad rapport with.” She said “a good manager” tells the source of the smell that they—the manager—noticed it, and doesn't reveal that it actually was a co-worker or co-workers who complained.
Bittner, on the other hand, said she counsels clients that HR should take the lead and that the employee's direct supervisor shouldn't be involved. Many state employment discrimination laws—Iowa's in her case—provide for individual liability, Bittner explained.
For Lewis, the key is that managers consult with human resources personnel before acting and not make a decision on what to do “in a silo.” Managers often lack awareness of potential legal issues or prior similar situations that might have arisen elsewhere in the company, which is just the sort of “institutional knowledge” that HR brings to the table, she said.
But the manager ultimately may be the one who knows the employee the best and therefore can offer the best solution to the problem, Lewis added, advocating a case-by-case approach. However, the manager still needs to talk to HR first, and legal counsel may need to be contacted if difficulty or legal issues are anticipated, she said.
Gillespie said he wants both the manager and HR present. It's better that the company has a second person there, he recommended, to both act as a witness and to keep the conversation on track and away from any possible comments that might be construed as discriminatory or generate hard feelings.
The manager will likely have to continue to interface with the worker on a daily basis, so the manager at least needs to be kept informed, Pollins said. He noted, however, that the company needs to guard against unnecessary and unauthorized disclosures of confidential employee information.
That's true even if there are no medical or religious reasons underlying the odor problem, Lapekas said, because it's still a matter of “human dignity.”
The Equal Employment Opportunity Commission hasn't taken an official position on the legal issues that might be implicated in such situations, but the lawyers with whom Bloomberg BNA spoke all indicated that several laws could conceivably come into play.
Any time there's the possibility an employee who's causing or suffering as a result of a workplace odor may perceive that she's being targeted based on disability, religion or another protected trait there may be issues under the ADA, Title VII of the 1964 Civil Rights Act or other laws, Lewis said.
When workers have a chemical or smell sensitivity or a medically related odor problem, they may have the right to a job accommodation if they have a disability under the ADA or similar state and local laws, Pollins said. He noted that showing a “disability” under the ADA has become easier since Congress passed the ADA Amendments Act in 2008 (87 DLR C-1, 5/6/15).
According to Pollins, employers may also need to consider the employee's family- and medical-leave rights under federal, state and local law. In certain situations, it may be appropriate for an employee to use intermittent leave in trying to deal with an odor problem, he said.
In addition, there can be religious accommodation issues when food or body odors are related to a worker's religious beliefs or practices, Pollins said.
Depending on the circumstances, other possible solutions or disability-based accommodations might include installing better workplace ventilation or moving people away from the irritating odor, Bittner said.
Gillespie said it may turn out that providing an accommodation for an employee who's causing an odor issue isn't the answer, and that the situation is better dealt with by providing sensitivity training to co-workers.
He and Lewis warned that co-worker complaints or comments about an employee who's causing a workplace odor issue may really be masking a discriminatory motive harbored by the co-worker based on religion, disability, race, national origin or even gender.
Sex-based equal treatment issues may arise even where gender-based activity, such as perfume use, wasn't the original underlying cause of the odor problem, Lewis explained.
In such situations, “the biggest concern for management” should be whether the co-worker complaints or comments are part of a larger pattern of harassment based on culture, religion or another protected trait that causes a hostile work environment for the employee who smells or engages in a smell-causing workplace action, Gillespie said.
Bittner, too, is a fan of sensitivity training as a way of heading off potential hostile work environments. In fact, she advises clients to conduct employee sensitivity training quarterly, she said.
Finally, a company might also adopt a fragrance-free workplace policy and policies covering other sources of workplace odors, although not everyone Bloomberg BNA spoke with agreed that doing so is a good idea, at least not across-the-board.
It may depend on the nature of the employer's business and whether there's a legitimate need to have broader dress codes and grooming policies, Gillespie said, citing businesses and workers providing direct customer service as a situation in which such a policy may be necessary.
If an employer has an informal workplace, it would be difficult to implement a fragrance- or odor-related policy, he noted, because the company wouldn't have any way to show consistent enforcement, which is important in the event discipline ever proves necessary.
L.L. Bean has a workplace scents policy as part of its employee manual, Beem said. It states that the use of scents can present a health issue for some workers or customers and that employees are encouraged to minimize their use of scents out of respect for others, she explained.
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