This post was authored by Sarah R. Lustig.

A recent case is a good reminder to employers that scent and chemical sensitivities can indeed be considered a disability subject to the protections of the Americans with Disabilities Act (ADA) and/or the Fair Employment and Housing Act (FEHA).  John Barrie (Barrie) suffers from allergic sensitivities and reactions to multiple chemicals.  He informed his supervisor of his disability when he was hired by the California Department of Transportation in 2005 (DOT).  The DOT informally accommodated his disability during the first five years of his employment.  After Barrie started reporting to a new supervisor in 2010, he began finding chemicals in his office.

Barrie made numerous written and verbal complaints.  These complaints led to hostility and retaliation at work.  Barrie filed suit after supervisors repeatedly ignored management directives to keep perfumes and cleaning chemicals, like Windex and Comet, away from him.  Barrie claimed his supervisor called him an “idiot” and a “jerk” and that, after his desk was moved, he would sometimes find his things soaked in perfume.  After a 12-day trial, a jury found in favor of Barrie agreeing he had a physical disability of chemical sensitivity, his supervisors harassed, discriminated, and retaliated against him because of that disability and his complaints, and the DOT failed to reasonably accommodate his disability.  In May of 2017, the jury awarded Barrie over $44,000 in economic damages for lost earnings and $3 million in noneconomic damages for emotional distress.

The DOT contested the jury’s figure and the trial court judge found the award excessive and lowered the award to $350,000 as fair and reasonable.

Barrie appealed.  On March 28, 2019, California’s Third District Court of Appeal unanimously reinstated the jury’s original verdict. (Barrie v. California Dept. of Trans. (2019) Cal. 3rd Crt. App. Case No. C085175.)

This large verdict is not an anomaly.  In May 2005, a jury awarded a deejay $10.6 million for her employer’s failure to accommodate her allergy to a co-worker’s perfume, ignoring her complaints. (Weber v. Infinity Broad. Corp. (E.D. Mich. Dec. 14, 2005).)  The award was eventually reduced to $1.25 million, along with attorneys’ fees of approximately $424,000. In 2010, the City of Detroit agreed to pay a senior city planner with Multiple Chemical Sensitivity, $100,000, revise its ADA handbook and training, and to post notices about the fragrance-free policy to settle a perfume allergy lawsuit.  The employee complained when a new coworker wore heavy perfume and used a room deodorizer.  The coworker agreed to unplug the room deodorizer at the employee’s request, but refused to stop wearing perfume.  The employee appealed to her supervisor and to human resources, but the city misinformed the employee that her coworker had a constitutional right to wear perfume to work.

Under the FEHA, a disability is having a physical or mental impairment that limits one or more major life activities.  Major life activities include, among other things, breathing, concentrating, thinking, and working.  All of these activities can be impacted by a severe allergic reaction.  Employers should understand their obligations to engage in the good-faith, interactive process, and provide reasonable accommodations.  The accommodations analysis should address three issues:

• Reasonableness: Is the requested accommodation reasonable?
• Effectiveness: Is the request effective? Will this requested accommodation effectively allow the employee to perform the essential functions of his or her job?
• Undue Hardship: Does the request pose an undue hardship?

Moreover, to minimize risk and liability, employers should be vigilant in monitoring the effectiveness of any accommodation.