Imagine a horrible accusation made against one of your managers — maybe harassment, maybe violence, maybe theft, maybe drugs. This is an outspoken employee who has sued you before — and won — and with whom you have to be careful. But under heavy pressure from top executives, you immediately fire the manager, loudly explaining that this behavior won’t be tolerated.

Then you find out that you got the facts wrong and acted too hastily. The CEO calls the fired manager to apologize and offer reinstatement and a promotion. She sits on the job offer for a week, deciding whether to sue or bargain for more.

You think: “If only I were a bigger employer with better investigators and better policies, I could avoid this.” Think again because the latest employer to fall into this trap is the biggest, most resourceful, most procedure-bound employer in the country, with thousands of trained investigators ― the U.S. government.

Act in Haste, Repent at Leisure

Until July 19, Shirley Sherrod was the director of rural development for a Georgia office of the U.S. Department of Agriculture (USDA). She is outspoken, locally respected, and well experienced. On March 10, she gave a 40-minute speech at a local NAACP event, recounting a 24-year-old epiphany. Around 1985, she gave short shrift to a poor local farmer whom she referred to a white attorney to be helped by “one of his own kind.” But she learned from that experience that the job was about poverty, not race, and urged the listeners to similarly move beyond race and tackle the bigger issue of poverty. A powerful story with a powerful lesson.

But on July 19, conservative blogger Andrew Breitbart trumpeted the first half of the story, ending with the observation that Sherrod shunted the white farmer to “one of his own kind.” Within hours, everyone from the NAACP to Fox News’ resident curmudgeon, Bill O’Reilly, called for Sherrod’s head.

That very afternoon, the White House obliged. USDA Secretary Tom Vilsack demanded Sherrod’s resignation, declaring “zero tolerance” for discrimination. Sherrod received the demand while on a three-hour drive back to her office. Three phone calls later, while still driving, without anyone talking to her or getting her side of the story, she was told to pull over to the side of the road and resign.

Ready, Fire, Aim

The next day, those who called for Sherrod’s demise backed off as the full video and its true context came to light ― showing her message to be tolerance rather than prejudice. The NAACP first tempered and then withdrew its call for termination, while Fox News’ Glenn Beck spent 17 minutes elaborately and emotionally decrying the termination. The White House also rescinded its demand for Sherrod’s departure, with both Vilsack and President Barack Obama calling her to apologize and asking for her to return to the elevated post of USDA deputy director of advocacy and outreach. As of this writing, she is still mulling over that offer while vowing to sue Brietbart.

How many things went wrong in this story? First, terminations should be based on internal strategy, not outside pressure. Whatever was to be done to Sherrod, neither the NAACP nor Bill O’Reilly should have been any moving force.

Second, always get the employee’s side of the story before you act. In a critical situation, implement a suspension if you need to, but never terminate until you ask the employee for an explanation. Ninety percent of the time, your decision won’t change, but any subsequent fact-finder will still punish you if you don’t go through the paces. And in the rare occasion you had the facts wrong, you’ll be really glad you checked.

As of our deadline, it was still unknown whether Sherrod will sue the USDA. After a career in public office, my bet is that she’ll parlay this episode into the job of her liking, from which she will likely never be able to be fired.

For all of you, take solace in the fact that nobody is immune from this type of snafu, and then start to worry about the fact that these same folks are in charge of your security and prosperity. Let’s hope they do a much better job at that.

Mark I. Schickman is a partner with Freeland Cooper & Foreman LLP in San Francisco and editor of California Employment Law Letter. You can reach him at (415) 541-0200 or schickman@freelandlaw.com.

According to the Equal Employment Opportunity Commission (EEOC), 93,277 workplace discrimination charges were filed nationwide during 2009 ― the second-highest level ever ― and monetary relief obtained for victims totaled more than $376 million. The 2009 data show that private-sector job bias charges alleging discrimination based on disability, religion, and national origin hit record highs. The number of charges alleging age-based discrimination reached the second-highest level ever.

Continuing a decade-long trend, the most frequently filed charges with the EEOC in 2009 were those alleging retaliation (36%) and discrimination based on race (36%) and sex (30%). “The latest data tell us that, as the first decade of the 21st century comes to a close, the Commission’s work is far from finished,” said EEOC Acting Chairman Stuart J. Ishimaru. He added, “Employers must step up their efforts to foster discrimination-free and inclusive workplaces, or risk enforcement and litigation by the EEOC.”

Training Works

It’s obvious that when the economy is weak, the number of discrimination claims increases. Perhaps less obvious, but equally true, is that in bad economic times, budgets for workplace training are often cut (or eliminated altogether), especially by smaller employers. Yet compliance training can prevent claims and thus save employers money. Historical data support a link between effective compliance training and a decline in discrimination claims.

For example, sex-based claims used to make up 65 percent of all harassment charges. Now they comprise 43 percent of all harassment charges. More specifically, sexual harassment claims accounted for 20 percent of the total charges in 1999. Currently, they represent only 15 percent of all charges. Many people credit antiharassment training as a significant factor in the decline. It follows that if employers expand the scope of training to emphasize national origin, age- and disability-based, and other types of harassment, they will see a decline in those charges, also. Moreover, in the event of a claim, training provides employers with a critical defense.

A number of factors point to the likelihood that equal employment opportunity (EEO) claims will rise in 2010. The recent amendments to the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) have expanded employee protections, and the U.S. Supreme Court’s recent opinions in retaliation cases have expanded the scope of protected activity. Thus, training is more important than ever.

Added Value of Training

EEO compliance training can have less tangible, but equally important, value. Many clients believe that if employees and customers see that you value compliance and diversity, you’ll be better positioned to retain ― or obtain ― their loyalty when economic activity increases.

Training lets employees know they are valued, which can quell job security anxiety and increase employee retention. A recent study by the Society for Human Resource Management found that despite the fact that unemployment is at a 15-year high, 25 percent of employees will look for a new job in 2010. Research shows that training and professional development opportunities improve employee satisfaction. Recessions put a premium on good employees, and they are more likely to stay if they are receiving training and development.

Additionally, trimming compliance training can be a factor counted against you when you’re facing a discrimination charge. The EEOC or a jury may conclude that you think training isn’t important. That’s not a good thing when you’re facing a discrimination charge.

What’s an HR Manager to Do?

Commitment to EEO compliance training makes good business sense, but management often fails to understand the connection, especially in tough times. HR personnel have to be proactive and efficient. To be better prepared, consider taking the following steps:

• Make sure discrimination and antiharassment policies (and related training) address more than just sex (there are several jokes I could insert here, but I’ll exercise some judgment).

• Focus training on ADA compliance, reasonable accommodations, FMLA implementation, immigration compliance, and wage and hour issues ― areas that are all expected to see increased claims.

• If you have to cut back, focus on supervisory training ― they need it most.

• Make EEO compliance part of supervisory evaluations; it can increase pressure to comply, making training more effective and reducing the amount of training needed.

• Take advantage of technology by implementing Internet-based training for distant locations and conducting Webinars to eliminate travel and reduce lost work time.

• Retain counsel to audit training programs, but conduct the training yourself.

• Consider “pooling” or sharing training and related materials with other similar employers.

Or you can just eliminate EEO training altogether and hope for the best. When an operations executive suggests that, ask him if that’s how he runs his part of the business. He may get the point.

Bottom Line

Employers are aware of the bottom line now more than ever. Hopefully, shortsighted business planning won’t lead to the elimination of EEO compliance training. You would be wise to implement efficient training strategies now and to marshal the evidence in support of the economic impact EEO compliance training can have on your bottom line.

Professor’s Views Offend

Professor Walter Kehowski teaches math at the Maricopa County Community College District. He also likes to share his opinions on other subjects via an e-mail distribution list through the college e-mail system.

With Columbus Day approaching, Kehowski sent out a mass message with the words “Dia de la raza” in the subject line. He raised the question “Why is the district endorsing an explicitly racist event?” in apparent reference to the fact that some Latinos observe a “day of the race” rather than celebrating Columbus Day. The following week, Kehowski elaborated: “YES! Today’s Columbus Day! It’s time to acknowledge and celebrate the superiority of Western Civilization.”

Kehowski also quoted several articles, including one that described “democracy, human rights and cultural freedom” as “European ideas.” Another promoted a theory that “Native Americans actually committed genocide against the original white-skinned inhabitants of North America.” Yet another argued that “America did not become the mightiest nation on earth without distinct values and discrimination” and that “[o] ur survival depends on discrimination.”

When some criticized Kehowski as racist, he claimed that his statements instead were “realistic.” When a detractor claimed that “[m]ost thinking people believe that the European, Christian victory over the Moorish, Islamic (and African) culture in Spain is an example of a victory of a ‘backward’ culture over one that was more civilized,” Kehowski retorted: “[H]istory has answered quite convincingly which cultures were backward.” And he warned: “[I]f we don’t pull ourselves out of the multicultural stupor, another culture with some pretty unsavory characteristics (here , here , and here ) will dominate (here , here , and here ).”

The president of the college spoke out, saying that Kehowski’s message “hurts people, hurts the college, and is counter to our beliefs about inclusiveness and respect.” The president publicly reaffirmed the college’s values and philosophy about diversity. The chancellor of the college district also weighed in, noting that Kehowski’s views were “not aligned with the vision of the district.” But no steps were taken to silence or discipline Kehowski because of the college’s commitment to promote true academic freedom, including unpopular and even offensive viewpoints.

A group of Latino employees of the college sued, claiming that the college’s failure to prevent Kehowski from using its e-mail system to broadcast his messages created a hostile work environment. This, they asserted, violated both the race discrimination protections of Title VII of the Civil Rights Act of 1964 and their right to equal protection under the U.S. Constitution. The trial court threw out the Title VII claim against the college president and district chancellor but allowed the constitutional claim to proceed. The president and chancellor immediately appealed to the Ninth Circuit.

But He’s Protected by Academic Freedom

The Ninth Circuit acknowledged that the U.S. Constitution protects public employees against purposeful workplace harassment based on race. (Constitutional protections are generally not applicable in a private- sector work environment.) Thus, a public employer that becomes aware of such harassment should take reasonable steps to stop it. The employees contended that’s just what the college should have done. They said Kehowski should have been disciplined or dismissed or at least prohibited from using the college e-mail system to distribute his views.

Although the court recognized that the employees felt demeaned by Kehowski’s views, at the same time it recognized that the Constitution also provided him the right to express controversial views. That guarantee is particularly important in an academic setting. Scholarship flourishes best when a diversity of viewpoints may be presented freely, including some that may be unpopular.

The court weighed the employees’ rights to be protected from harassment against Kehoswki’s right to express his opinions. Offensive as his comments may have been, they weren’t directed personally at the employees. Instead, he was sharing his somewhat unusual perspective publicly, on issues of public concern. He didn’t supervise the employees, and thus, his views had no control over their employment. Although the college didn’t stop his messages, it didn’t endorse or adopt his sentiments.

Under all the circumstances, the Ninth Circuit found no equal protection violation. Summing up, the court stated:

It’s easy enough to assert that Kehowski’s ideas contribute nothing to academic debate, and that the expression of his point of view does more harm than good. But the First Amendment doesn’t allow us to weigh the pros and cons of certain types of speech. Those offended by Kehowski’s ideas should engage him in debate or hit the “delete” button when they receive his emails. They may not invoke the power of the government to shut him up.

Rodriguez v. Maricopa County Comm. College , Case No. 08-16073 (9th Cir., May 20, 2010).

Rules May Be Different in Your Workplace

In the private sector, constitutional protections don’t have the same applicability. So if you’re a private-sector employer, you shouldn’t read this case as restricting you from controlling offensive messages that are sent via your e-mail system. In fact, if messages target a protected group, you likely have a duty to stop them. Unless principles of academic freedom and free speech tie your hands, you will want to take appropriate remedial action if your systems are being used to spread messages promoting racial bias.

President Grover Cleveland signed the bill soon afterward, designating the first Monday in September as Labor Day. Here are some statistics about America’s workforce from the U.S. Census Bureau:

• there were 154.4 million people 16 and older in the nation’s labor force in May 2010;

• during all or part of 2008, 83 percent of full-time workers 18 to 64 were covered by health insurance; and

• in private industry, 78 percent of workers in private industry receive a paid vacation as one of their employment benefits;

• 7.6 million workers hold down more than one job;

• 284,000 moonlighters work full time at two jobs;

• there are 10.1 million self-employed workers;

• 7 percent of workers work 60 or more hours a week;

• about 12 percent of wage and salary workers belong to unions, with Alaska, Hawaii and New York having among the highest rates of any state; and

• 5.9 million people work at home.

• Title I of the Americans with Disabilities Act of 1990 (ADA);

• Title II, Subtitle A, of the Americans with Disabilities Act of 1990 (ADA);

• Section 188 of the Workforce Investment Act of 1998;

• Section 504 of the Rehabilitation Act of 1973, as amended (only as it pertains to federal financial assistance);

• Section 503 of the Rehabilitation Act of 1973, as amended; or

• The Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended.

The Advisor can be used by employees, job applicants, applicants for, or participants in programs that receive federal financial assistance. It may also be useful for individuals receiving services from public entities who want to learn more about their rights under these federal disability nondiscrimination laws.

The Advisor asks users questions about relevant variables, such as nature of the organization, size of the staff, and whether the business or organization receives federal financial assistance. Based on the responses provided, it then generates a customized list of federal disability nondiscrimination laws that likely apply along with information about employers’ responsibilities under them.

The Advisor does not address the following nondiscrimination laws:

• Section 501 of the Rehabilitation Act, which covers employees of the federal government;

• Title III of the Americans with Disabilities Act, which applies to places of public accommodation, commercial facilities, and examinations and courses related to applications, licensing, certification, or credentialing for secondary or postsecondary education, professional, or trade purposes;

• Workers’ compensation laws; or

• State and local disability nondiscrimination laws.

The Problem

According to Mike Sunnucks at the Phoenix Business Journal, Arizona labor and employment attorneys report a growing number of businesses opting out of hiring Hispanics, which could lead to an increase in employment discrimination claims. According to labor and employment attorney Julie Pace, “Anyone who looks and sounds foreign is a concern to some employers. They want to avoid some of the things [e.g., workplace raids] they see in the paper.” Mary Jo O’Neil, a Phoenix attorney for the Equal Employment Opportunity Commission, says she is also seeing an increase in discrimination complaints alleging unfair treatment based on national origin.

Though opponents find comfort in President Barack Obama’s public condemnation of SB 1070, polls from the Pew Research Center show broad national support for the law. According to a recent Pew poll, 59 percent of people support the law in its entirety. Percentages are higher when the law is broken down by element, such as requiring people to produce documents verifying legal status, allowing police to detain anyone unable to verify legal status, and allowing police to question anyone they think may be in the country illegally. Perhaps most interesting is the level of support the law has received from Democrats. Fifty percent of Democrats polled said they support the provision, which allows police to question anyone they think may be in the country illegally.

Bottom Line

Though Arizona’s law is just that — Arizona’s law — the Pew poll shows there is support for tougher immigration laws across the country. Labor and employment attorneys are watching Arizona closely. Can it enforce SB 1070 without seeing an increase in claims filed under Title VII of the Civil Rights Act of 1964? Only time will tell.

For far too long, many of our Government’s hard-working, dedicated LGBT employees have been denied equal access to the basic rights and benefits their colleagues enjoy. This kind of systemic inequality undermines the health, well-being, and security not just of our Federal workforce, but also of their families and communities.

The President said he regretted that the full range of federal employee benefits can’t be extended to same-sex domestic partners without a change in the law, and he urged passage of the Domestic Partnership Benefits and Obligations Act currently being considered by Congress, which would effect the necessary legislative change.

The memo requires the Office of Personnel Management (OPM) to:

• clarify that same-sex partners’ children count as a “child” for child-care subsidies and services;

• clarify that domestic partners and their children are “family members” for purposes of employee assistance programs;

• propose a rule to add retirees’ same-sex partners to the list of individuals assumed to have an insurable interest in the employee; and

• amend the guidance implementing President Bill Clinton’s expanded family and medical leave policies to specify that the 24 hours of unpaid leave available in connection with school and early childhood education, routine family medical purposes, and elderly relatives’ health or care needs also are available to meet the needs of a same-sex domestic partner or his or her children.

The memo also directs the General Services Administration to amend its federal travel regulations to allow domestic partners and their children full benefits, including travel, relocation, and subsistence payments.

The OPM provides guidance on defining a domestic partnership and states that agencies may wish to secure documentation to prove domestic partnership, but it’s not required, and agencies should consider whether there is a similar requirement for opposite-sex spouses, consistent with the President’s intent to promote equality. The OPM also directed agencies to pay attention to the memo’s requirement that agencies that adopt new employee benefits also extend those benefits to same-sex domestic partners to the extent permitted by law.

According to the EEOC’s suit, Texas-based Administaff and Conn-x, LLC, a Florida-based cable service provider, violated federal law by engaging in religious discrimination against two employees at Conn-x’s Edgewood office. The agency alleged that two Conn-x employees, who are brothers, were called “dirty Jew[s],” “dumb Jew[s],”and other anti-Semitic slurs by managers and coworkers.

The EEOC alleged that the harassment, which began in September 2005, continued for a couple of years and included the defacing of one employee’s work vehicle with a swastika. One of the employees was also physically harassed when he was forced into a trash bin for the amusement of managers, who observed the incident on a surveillance camera and called it “throw the Jew in the dumpster.” The EEOC’s lawsuit against Conn-x remains unresolved.

In addition to the monetary relief for the two employees, the consent decree settling the lawsuit bars Administaff from engaging in harassment on the basis of religion or retaliating against employees who complain about it. The company agreed to revise its policy against harassment and retaliation, provide training on antidiscrimination laws to its managers, and post notices stating its commitment to maintaining an environment free of religious harassment and retaliation. EEOC v. Adminstaff, Inc. , Case No. 1:09-CV-02881-BEL, DC MD.

Olsten to pay $75,000 to settle disability claims

On March 18, 2010, Olsten Staffing Services Corp., a nationwide temporary employment agency based in Melville, New York, agreed to pay $75,000 to settle a disability discrimination lawsuit filed by the EEOC in Madison, Wisconsin. The agency alleged that Olsten violated the Americans with Disabilities Act (ADA) by refusing to refer a deaf job applicant for temporary employment as a production worker for an employer in La Crosse, Wisconsin.

The EEOC alleged that a staffing specialist at Olsten’s La Crosse office twice refused to refer the applicant for employment because he is deaf, even though he met all of the actual qualifications for the job. According to the EEOC, company e-mails showed that Olsten’s staffing specialists had flagged the applicant’s disability as a “concern.” When the applicant later asked the staffing specialist why he didn’t get the job, the Olsten employee falsely attributed the decision to concerns raised by the employer when it hadn’t expressed any such concerns. Hearing ability wasn’t a requirement at the food production job, and in fact, workplace noise required a number of employees to wear ear protection that prevented them from hearing while working.

The case was resolved by a two-year consent decree that requires Olsten to pay lost wages of $5,000 and damages of $70,000 to the applicant. The decree also contains an injunction prohibiting the La Crosse office from engaging in any further discrimination on the basis of disability and requires Olsten to provide ADA training to its employees and report any further complaints of discrimination to the EEOC for the next two years. EEOC v. Olsten Staffing Services Corp. , Case No. 98-CV-565 (DC WIS).

Celestica Corporation settles EEOC disability suit

On April 8, 2010, Celestica, Inc., a Canadian electronics company, agreed to pay $102,100 and provide other relief to settle a disability discrimination lawsuit filed by the EEOC. In its suit, the agency alleged that Celestica willfully ignored a request for reasonable accommodation under the ADA.

An employee hired through a placement agency worked inside a 400,000-square- foot warehouse operated by Celestica. The employee, who suffers from lupus, chronic obstructive pulmonary disease, and cardiomyopathy, asked to use her own electric wheelchair to get to her desk inside the warehouse from a handicapped parking space close to the side entrance. Although the placement agency allowed use of the wheelchair, Celestica ignored the employee’s requests. She continued working for a few months without accommodation, but ultimately quit.

In addition to providing monetary relief, the two-year consent decree settling the suit prohibits Celestica from further refusing or ignoring any reasonable accommodation requests from disabled individuals. The company must also issue its policy on ADA reasonable accommodations to all employees in the United States, train its site managers and HR managers on reasonable accommodations, have the trainer administer a test after the training and review the test results with trainees, report requests for reasonable accommodations to the EEOC, and post notices on the settlement and the ADA around the facility. EEOC v. Celestica, Inc. , Case No. 3:09-0813 (DC TN).

Encourage Diversity

Americans have perhaps been slower than the rest of the world in moving toward diversity in the workplace and realizing the benefits of a well-developed diversity management program. Adjusting to diversity in the workplace means more than just accepting another person as he is and giving him the equal opportunity of employment.

Here are some reasons for encouraging diversity:

Recruiting and Retaining Employees. In a tight labor market, it’s critical to be able to attract and retain quality employees. Employees have come to expect discrimination- and harassment-free workplaces. In an accepting and diverse environment where employees feel valued, turnover is less likely, and productivity will probably increase.

In addition, a diverse workplace issues an invitation to talented people from all cultures. Employees are often attracted to companies that are committed to recruiting and promoting a wide variety of people.

Understanding an Expanding Customer Base. Minorities are actually the majority in six out of eight of America’s largest metropolitan areas. The combined buying power of minority consumers has continued to increase. Women are the primary purchasers in more than half of U.S. households.

Employees should reflect the diversity of a global marketplace, if only to better serve your customers. A better understanding of your customers’ cultures and an ability to relate to them can provide your company with a major competitive edge in international markets.

Increasing Creativity. Employees from varied backgrounds can bring fresh perspectives to the workplace. When employees question and challenge past practices, new ideas are generated, and improved products and services may result.

Increasing Flexibility. A diverse workplace has learned to accept differences between people and changes in the way business is done. That flexibility is crucial to the survival of any business. The only constant in the business world is change. Diversity puts your business in a position to grow and handle change.

Bottom Line

Diversity plans are designed to go a step beyond affirmative action. Even if your business isn’t required to have an affirmative action plan, you should consider implementing a diversity plan. These programs encourage supervisors and employees to understand and accept one another’s differences and similarities and to work together to make full use of each employee’s strengths. They may also have an effect on your bottom line, decreasing the number of discrimination claims filed against you. That sounds like a good thing.

Are ‘Scent’ Allergies Protected Under the Law?

For employees to be protected under the Americans with Disabilities Act (ADA), they must have a mental or physical condition that substantially limits a major life activity. Before the ADA Amendments Act (ADAAA) took effect in early 2009, courts considering whether an allergy to odors in the workplace qualified a person as “disabled” analyzed the following criteria:

• the nature and severity of the impairment;
• the duration or expected duration of the impairment; and
• the permanent or long-term effect of the impairment.

Significantly, courts did not consider a person disabled if mitigating measures (e.g., allergy shots or medicine) prevented the impairment from substantially limiting a major life activity.

When the employee’s allergy was unrelated to his work environment, courts typically found that the employee wasn’t disabled under the ADA. For example, a Pennsylvania court ruled that while an employee’s allergy to cats and dogs was a “physical impairment,” it didn’t substantially limit a major life activity and therefore wasn’t covered under the Act. In fact, even when the allergy stems from exposure to an aroma at the workplace, courts have been reluctant to find an individual “disabled” under the ADA.

In one noteworthy Minnesota case in 2001, an employee suffered from a condition known as “multiple chemical sensitivities,” which caused him to experience sinus and respiratory difficulties while working as a chemical engineer. Again, although the judge found that the condition qualified as an impairment, the employee wasn’t “disabled” because his symptoms were “ameliorated or eliminated by avoiding the environment at work.”

However, in January 2009, Congress enacted extensive changes to the ADA. One of the most significant changes involves determining whether an impairment substantially limits a major life activity. Under the ADAAA, that question must now be answered without regard to mitigating measures (except “ordinary eyeglasses or contact lenses”). In addition, even if the individual’s impairment doesn’t currently limit a major life activity in a substantial way, he may still be disabled if he is limited when the impairment is “active.”

Taking its cue from Congress, the Equal Employment Opportunity Commission (EEOC) has issued proposed regulations addressing the issue. The proposed regulations state in part:

An individual with asthma who is substantially limited in respiratory functions and breathing compared to most people, as indicated by the effects experienced when exposed to substances such as cleaning products, perfumes, and cigarette smoke, is an individual with a disability.

Thus, it appears that if the employee’s allergy is “severe” when he comes in contact with the odor or substance, he is likely “disabled” under the ADA.

How Do You Accommodate Scent Allergies?

If allergies and sensitivity to odors are in fact disabilities, the issue becomes whether you can reasonably accommodate an employee with a scent allergy. As we all know, the ADA provides that reasonable accommodations may include “job restructuring, part-time or modified work schedules, reassignment to a vacant position . . . and training materials or policies.” However, an accommodation isn’t reasonable if it imposes undue financial or administrative burdens on the employer or requires a fundamental alteration to the nature of the job.

In 1999, the Eighth U.S. Circuit Court of Appeals decided an important case. An employee suffered from severe sinus attacks that were triggered by common workplace irritants (e.g., heavy perfumes, smoke, nail polish, glue, and adhesives). According to the court, the employer “made great efforts” to accommodate the employee, prohibiting the use of nail polish in his department and creating a workstation for him in a room with better ventilation. It also allowed him to stop working if he was sensing an irritant so he could wait for the problem to be remedied by his supervisor.

The appeals court ruled that the employer’s accommodations were sufficient to meet its obligations under the ADA. Significantly, the court refused to require the employer to go so far as to provide the employee with “an irritant-free work environment.” Buckles v. First Data Resources, Inc.

Other appeals courts have issued similar decisions. Recently, the Third Circuit in Pennsylvania determined that an employer reasonably accommodated an employee’s disability of being allergic to various scents by instituting a perfume-free workplace policy, providing the employee with a fan and a new air filter, and changing old air filters throughout the workplace. Like the Eighth Circuit, the Third Circuit concluded that the employer didn’t have to ban all odors from the workplace, explaining:

It is unreasonable to expect [the employer] could have prevented all violations of its perfume policy, but when employees were suspected of wearing scented products, [the supervisor] responded appropriately, reminding employees, individually and collectively, of the importance of keeping a perfume-free environment.

When faced with employees claiming sensitivity to odors, you should remember that the first order of business is to engage in what the EEOC calls “the interactive process” — discussing the problem the complaining employee is having and talking with him about possible resolutions. That includes reviewing medical information and investigating the feasibility of various accommodation options.

You should be careful not to get hung up on semantics. In a Michigan case, the employer rejected a request for a “scent-free policy” because it would impose an undue hardship. However, upon closer inspection in court, it appeared that the employee was simply seeking a “perfume-free” policy and had provided the employer with a sample of such a policy. The sample policy provided that “mild scents may be worn in moderation, but strong or offensive scents that become detrimental to the work unit will not be tolerated.”

The court observed that this type of policy doesn’t require a completely scent-free environment, nor does it address the public or those outside a department. Because the employer failed to evaluate the actual accommodation that was requested and didn’t introduce any evidence showing why the perfume-free policy would create an undue burden, the court held that it was “unreasonable” in failing to accommodate the employee.

Can an Employee Insist on Telecommuting as an Accommodation?

One final issue is whether working at home is a reasonable accommodation that must be considered in response to scent allergies. The Eighth Circuit has found that “regular and reliable attendance is a necessary element of most jobs” and therefore is reluctant to require telecommuting as an accommodation. Other courts have issued similar rulings, such as the Seventh Circuit in Chicago, which explained:

Most jobs in organizations[,] public or private[,] involve team work under supervision rather than solitary unsupervised work, and team work under supervision generally cannot be performed at home without a substantial reduction in the quality of the employee’s performance. This will no doubt change as communications technology advances, but is the situation today. Generally, therefore, an employer is not required to accommodate a disability by allowing the disabled worker to work, by himself, without supervision, at home.

However, the EEOC is not convinced. Guidance from the commission on reasonable accommodation suggests that allowing an employee to telecommute might be a reasonable accommodation that has to be considered. The guidance states in part:

Changing the location where work is performed may fall under the ADA’s reasonable accommodation requirement of modifying workplace policies, even if the employer does not allow other employees to telework. However, an employer is not obligated to adopt an employee’s preferred or requested accommodation and may instead offer alternate accommodations as long as they would be effective.

It is reasonable to expect that with increasing numbers of employees working at home on a regular basis, and as technology increasingly overcomes physical distance, the EEOC will scrutinize refusals to offer the option to telecommute.

Wrapping Up

In light of court rulings on the issue, you are advised to view allergies to odors and sensitivity to chemicals as disabilities in most cases and to anticipate that accommodation may be necessary. As in previous cases, instituting a perfume-free policy, providing fans or other ameliorative devices, and adjusting the air filters and air flow in the work area will probably be viewed as sufficient to meet your obligations under the law. Rules mandating completely fragrance-free environments are likely not going to be required by the courts because of the virtual impossibility of enforcing them.

In addition, you shouldn’t reject telecommuting options. Although it might seem reasonable that an employee’s physical presence is a necessity, it’s best to at least review the possibility during the interactive process and make sure that old assumptions about telecommuting remain valid in your current way of doing things. In short, it makes sense to address scents in the context of disability accommodation.