The City of Detroit recently settled an Americans With Disabilities Act (ADA) lawsuit filed by an employee who unsuccessfully sought a reasonable accommodation because a coworker’s perfume made it difficult for her to breathe.
Now, one might conclude that a municipality may have more inclination to settle than fight since it’s using OPM (other people’s money), whereas a private employer might try to win in court.
However, with ADAAA (ADA Amendments Act) regulations coming soon (July), the woman’s request for a reasonable accommodation and the city’s rapid settlement both make sense.
The ADAAA defines disability as anything that limits a "major life activity," and breathing is certainly a major life activity. The employer might argue that in this case the perfume did not "substantially limit" the employee’s respiratory system, but the ADAAA comes to the plaintiff’s (employee’s) defense here too. The ADAAA shifts the burden in lawsuits onto employers, who now must prove that they offered a "reasonable accommodation" rather than challenge or disprove the disability.
In this light, it made perfect sense for the City of Detroit to settle (and then to ban all employees from wearing anything scented). Absent proof that the city had offered the employee a reasonable accommodation that the employee then refused, the defendant municipality had no legal defense.
Be prepared for your own reasonable accommodation requests. Get your copy of Personnel Concepts’ ADA Amendments Act Compliance Kit today.
I suffer with allergies to fragrance. I used to have a migraine by Thursday from the cumulative exposure to fragrance in the office. Regrettably, a few of the women I work with appear to believe their right to wear fragrance is more important than my right to breathe or remain healthy. Because I could get no help from management regarding this–oh, they would announce at staff meetings that fragrance is a problem for *some of us*–I began using a nasal spray whose side effect is I have lost some of my sense of smell (I have only been on the spray for a month). This minimizes the effects but I now have a pounding headache after this morning’s strong exposure to which my supervisor encouraged me to pray! I have an air cleaner on my desk (that I had to buy on my own) and it is fine as long as I sit next to it.