Rich Meneghello, The Daily Record Newswire
Most business owners, managers and human resources professionals know that it stinks to get sued by an employee. But in some cases, it’s the actual “stink” itself that leads to a discrimination lawsuit.
Portland city officials learned this lesson recently when they were served with a lawsuit by an employee claiming that odors in her workplace were causing her physical problems and emotional distress. Whether they can rid themselves of the stench of a discrimination claim will now be decided in court and maybe by a jury.
Julee Reynolds has been employed by the city’s Bureau of Maintenance since 2009, working in a confined office space with other co-workers. In her lawsuit, she claims to suffer from Multiple Chemical Sensitivity (MCS), a somewhat controversial medical condition. It’s triggered by scented products like perfumes, colognes and lotions that can cause respiratory problems, nausea, headaches and other allergic reactions.
I say “somewhat controversial” because MCS is not recognized by the American Medical Association (and several other medical groups) as an organic chemical-caused illness, leading some physicians to contend that those individuals with symptoms are merely hypersensitive to odors or experiencing psychological issues.
Reynolds claims that her MCS is unpredictable in nature, and she cannot tell when exposed to certain scents whether she will merely suffer a mild headache or serious symptoms requiring her to go to a hospital. As expected, she is very cautious about the people she spends time with.
In her lawsuit, Reynolds claims that in 2010 one of her co-workers wore a scented product that triggered a severe reaction; she obtained a doctor’s note that described potential workplace exposure as “life-threatening” and brought it to her supervisors. She then claims that over the next several years she attempted to work with her bosses to figure out a solution to her problem but didn’t get the relief she was seeking.
Reynolds wanted the workplace rearranged so that she would no longer be exposed to anyone wearing any scented products, signage posted on the front door and her workspace labeling it a “fragrance free zone,” a fan installed to clear away offending smells, and for her co-workers to attend a mandatory training session to learn how to best avoid causing her further problems. She alleges that the city agreed to move her workspace to another location within the office to attempt to alleviate her problems, but even after doing so, the troubles continued. As recently as May 3, she claims to have suffered an allergic reaction.
Reynolds filed a disability discrimination lawsuit a few weeks ago and says that she has suffered so much anxiety and distress at work that she is entitled to a payout of over $50,000 from her employer. The city has not commented publicly due to the pending nature of ongoing litigation, so we know only one side of the story.
This is a tough one for employers. One court that ruled in a similar case said that employers are not required to “create a wholly isolated workspace for an employee that is free from numerous possible irritants.” The Equal Employment Opportunity Commission, the federal agency that oversees discrimination laws (and usually is very pro-employee in its decisions), seems to agree with this conclusion; it ruled that “an entirely fragrant-free environment is not a reasonable request for accommodation,” citing the impracticality of ridding all scent-producing agents in the workplace.
On the other hand, there have been court decisions and settlements in these types of cases that should catch all employers’ attention. In 2010, the city of Detroit agreed to pay an employee $100,000 to settle a MCS lawsuit, and in 2005 a radio disc jockey was awarded over $800,000 by a jury after she complained about co-workers’ scents and the impact they were having on her medical condition.
What’s certain is that employers should treat any complaints of this nature seriously. As with any other complaints about workplace irritants or exposure to potentially unsafe conditions, investigate immediately to determine whether corrections need to be made. If the exposure is causing an unsafe working environment, the situation could trigger an Americans with Disabilities Act claim, and generate involvement by OSHA.
If it turns out that the situation is specific to one employee, consider exploring whether there are any easy fixes able to be implemented to make the workplace environment more comfortable for him or her. Sometimes MCS conditions can be accommodated with a tune-up of the ventilation system, simple air purification systems (even personal units might be useful), or changing industrial products used for cleaning, floor waxing, carpet shampooing, etc., to a nontoxic alternative.
If an employee is still bothered by personal scents, explore whether the employee can be moved to a more isolated work area, or allowed to interact more often via electronic means to alleviate the impact of personal interactions. Although it might stink to have to go through this effort, avoidance of a lawsuit can leave one smelling like roses.
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Rich Meneghello is the managing partner of the Portland office of Fisher & Phillips LLP, one of the oldest and largest employment law firms in the country dedicated to representing the interests of management. Contact him at or 503-205-8044, or follow him on Twitter – @pdxLaborLawyer.
