New Jersey Employment Law Blog

Businesses have to deal with all manner of disabilities in their employees in a way that complies with the Americans with Disabilities Act and similar state legislation such as the New Jersey Law Against Discrimination.  We've previously posted, for instance, on employees who claim to be allergic to perfume.  Litigation over that issue has gone as far as the U.S. Court of Appeals for the Third Circuit. 

Now there's a hint of a "sensitivity" --- it's not clear whether doctors will call it an allergy --- to electrical and radio waves.  For more information, here's a link to an electro-sensitivity advocacy group.

According to KOB.com, "a group in Santa Fe says the city is discriminating against them because they say that they're allergic to the wireless Internet signal. And now they want Wi-Fi banned from public buildings."  There's no word yet from Santa Fe's attorney of a recommendation on how to handle the complaint, but a City Councilor had a point when he noted that the city is already saturated with wireless signals.

Now, perfume in the workplace is one thing, desirable to some but certainly not essential to conducting  business.  However, American business runs on electronic devices: computers, cell phones, Blackberries, and the like.  They're everywhere.  Business cannot function without them.  Might a court be persuaded to rule that electro-sensitivity is a disability?  Perhaps.  Stranger things have happened.   If so, how could a business accommodate the disabled worker?  In most modern office settings there's no practical way to avoid exposure to electrical equipment and radio waves.

Asa result, it's unlikely that circumstances will allow a court to finesse the issue as the Third Circuit did with perfume sensitivity in Kaufman v. GMAC Mortgage.  In that case the court assumed, but did not decide, that perfume sensitivity was a disability.  It ruled against the plaintiff because it found that GMAC had reasonably accommodated the disability (if it was a disability).  Because of the pervasiveness of electrical and radio waves, with electro-sensitivity an accommodation would be immensely difficult. 

Of course, there's always the possibility of a legislative solution, but Congress has not demonstrated a willingness to scale back the scope of the ADA by amending  legislation.

In short, we are not aware of any large-scale movement by electro-sensitives to push this issue in the courts, but it may be coming.  Business advocacy groups may want to start thinking about how they will react if the issue comes to the fore.

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Michael Moore at the Pennsylvania Employment Law Blog has an interesting post asking whether sensitivity to perfume is an ADA Claim or Office Nonsense.  The post links to an article about a woman in Detroit who recently filed suit against her employer claiming that her sensitivity to perfume constitutes a disability for purposes of the Americans with Disabilities Act.

In a slip opinion filed on July 5, the Court of Appeals for the Third Circuit addressed that question.  The case is Kaufmann v. GMAC Mortgage.  For the moment it appears that perfume sensitivity that causes an allergic reaction can be defined as a disability for purposes of the ADA.  The more interesting question is what an employer must do to reasonably accommodate an employee who claims such a disability. 

When Kaufmann complained of difficulty in breathing, faintness, and nosebleeds --- which her doctor attributed to environmental irritants --- GMAC promptly decided to institute a "perfume free environment" to accommodate her.  In addition, GMAC moved her desk, changed air filters, and as required reminded other employees that they should not wear perfume in the office.

Kaufmann continued to complain about other employees wearing perfume, although they denied doing so.  Eventually Kaufmann's attendance became erratic and she was terminated.

Both the trial and appellate courts assumed that Kaufmann's sensitivity to perfume could constitute a disability but did not directly decide the issue.  Rather, the courts held that GMAC  reasonably accommodated  Kaufmann.

So was Kaufmann's case office nonsense or an ADA claim?  Well, you have to conclude that it was a claim.  (Although a lot of people might dismiss the notion of a perfume allergy as nonsense.)  The courts continue to interpret the ADA broadly, consistent with what they perceive to be the intent of Congress.  But you also have to conclude that the court here understood that GMAC had done all that it reasonably could for Kaufmann.

But what of the personal rights of the other employees?  Don't they have a right to wear perfume in the office?  The line between statutory rights and personal rights in the workplace will continue to be defined largely on a case-by-case basis.  Smart employers will take seriously all complaints and attempt to resolve them with proactive action.  GMAC's handling of the Kaufmann situation is a good example to follow. 

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