EEOC Sues on Behalf of Employee Denied Relief from Workplace Smells

July 17, 2017

The Equal Employment Opportunity Commission (EEOC) has filed suit in the Middle District of North Carolina alleging that an employer violated the Americans with Disabilities Act (ADA) by refusing a request to telecommute from an employee with a sensitivity to workplace smells.

According to EEOC's complaint, Elizabeth Pennell worked as a patient account representative at Advanced Home Care's call center in High Point. In August 2015, Pennell, who has asthma, was hospitalized and diagnosed with chronic bronchitis and chronic obstructive pulmonary disease (COPD). Pennell's respiratory conditions constitute a disability under the Americans with Disabilities Act (ADA). When Pennell returned from medical leave related to her disability, she asked her supervisor, the revenue program manager, if she could telework as an accommodation for her disability. Among other things, Pennell needed to telework to avoid fragrances, scents, and odors that aggravate her respiratory conditions — all of which might be found at the High Point facility on any given day. By teleworking, Pennell would be protected from actual and potential respiratory irritants at that facility.

Between August and December 2015, Pennell asked her supervisor if she could telework on at least three separate occasions. Pennell's request was never granted. Pennell was required to take medical leave because she could not work at that facility and the company would not allow her to telework. Ultimately Pennell was fired in January 2016 after exhausting her medical leave.

"When a qualified employee with a disability is ready and willing to work, the employer has a legal duty to provide a reasonable accommodation to make that employment possible unless the employer can show undue hardship," said Lynette A. Barnes, regional attorney for the EEOC's Charlotte District. "Employers must be flexible in evaluating requests from their employees for reasonable accommodation."

The filing of this lawsuit should serve as a reminder on two fronts for employers. First, an employee’s claim that he or she is allergic to certain scents or substances in the workplace should not be dismissed offhand. Frequently, the employee’s sensitivity to such scents or substances is related to an underlying respiratory condition such as asthma, COPD, or allergic rhinitis. Such conditions often constitute a disability under the ADA since they typically impact the major life activity of breathing. Second, once an employee requests to telecommute as an accommodation for a disability, that request should never be ignored. In EEOC v. Ford Motor Company, the seminal decision regarding telecommuting as an accommodation, the Sixth Circuit Court of Appeals recognized that both employers and employees must engage in a good faith “interactive process” to determineif the requested accommodation is reasonable or if it creates an undue hardship on the employer. If the employer ignores the request to telecommute and thus fails to engage in the required “interactive process” it runs a significant risk of liability for failure to accommodate. On the other hand, the employer who rejects the request to telecommute after engaging in a good faith interactive process with the employee will be in a much more defensible position should litigation result.