New Jersey Employment Law Blog

About a month ago I told you that I had taped a television panel discussion on Cancer in the Workplace, focusing on disability issues. Hosted by the award-winning Steve Adubato, our segment of Caucus NJ has now aired and is running on a couple of stations.  For most of you the easiest access will be on the New Jersey Network.

If you don't feel like waiting for it on TV, you can watch online here.

By the way, Steve is a very polished host and had a great way of swinging the conversation around the room to the different panelists, integrating our various areas of expertise.

I was a bit under the weather on taping day so I don't sound like myself, but I had a terrific discussion with some great people.  I hope that you enjoy it as much as I did.

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The Americans with Disabilities Act, the federal law that seeks to ensure equal opportunity for those who live with physical and psychological disabilities, just reached its 20th birthday.  The House of Representatives celebrated by altering the Speaker's rostrum to accommodate the wheelchair of Rep. Jim Langevin (D-RI) to allow him to preside, as other members can, the first time that any disabled member has presided over the House.  Of course, Langevin is a 5-term Congressman, and one might legitimately ask what took so long.  Still, it's progress.  Here's a short report from MSNBC. 

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Last week I had the privilege of participating in a panel that taped a half hour show for Steve Adubato's "Caucus New Jersey," which is broadcast on the New Jersey Network.  The topic was "Cancer in the Workplace" and focused on the legal, business, social and emotional issues that arise when an employee deals with cancer.

My co-panelists were Don DiStasio, CEO of the Eastern Division of the American Cancer Society, Ellen Levine of The Wellness Community of Central NJ, and Rochelle Shoretz, an attorney and Executive Director of Sharsheret.

It was a terrific panel and the discussion certainly opened my eyes to the human side of what I usually see presented as just a legal problem.

I have not been told when the show will air, but will keep you advised.

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Today's sojourn through the wonderful world of the Americans with Disabilities Act takes us north on Route 95 to our sister state of Connecticut, whence springs a decision of the Second Circuit in McBride v. Bic Product Manufacturing.  It's not a ground breaking case.  In fact, it's notable for just two things.  First, it provides a well-organized refresher for management and employees alike on how disability cases must be proved.  Second, it pulls the Second Circuit into line with other federal circuits (New Jersey's own Third included) on a question of how extensive is the employer's obligation to engage in an "interactive process" with the employee to explore what measures might reasonably accommodate the employee's disability.  We are going to focus on this second issue. 

McBride suffered from a respiratory ailment.  Bic's workplace was industrial, and included exposure to solvents and fumes.  McBride informed Bic of her need for an accommodation.  Bic proposed supplying her with a respirator, which McBride rejected.  The discussion of accommodation stopped there.  Bic apparently made no other suggestions, nor did McBride.  McBride's employment was terminated thereafter, and she sued for disability discrimination.

Among her claims against Bic, McBride argued that Bic failed to engage in the interactive process.  The court rejected this argument, not on the basis that a sufficient discussion took place (it apparently didn't), but on the basis that even if the discussion had taken place it would have been fruitless, since there was no reasonable accommodation available that would have allowed McBride to continue to work.  So we come back to our favorite sports analogy: no harm, no foul.  And therefore, the failure to engage in the interactive process does not automatically create liability under the ADA.

Lest managers and HR types cheer too quickly, however, there is a caveat.  This does not give employers free rein to ignore the interactive process requirement when they reasonably determine that no reasonable accommodation exists.  Among other things the court noted that failure to engage in the interactive process at all may be prima facie evidence that the employer violated the ADA.

In short, if you're an employer, engage in the process in good faith.  If you're an employee who wants to sue, you'd better be able to prove that you could have been accommodated if only the employer had discussed the issue reasonably.

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And we're not talking about hotel rooms.  We're referring to the accommodations needed by disabled workers to do their jobs.

Here's an interesting article about an employee in Montana.  She needed a service animal at work.  No problem there; the employer allowed her to bring her faithful pooch to the office.

But the animal had trouble staying upright on the slippery hallway floors of the office building.  And so the employee asked the employer to install non-skid strips on the floor for the dog.

This is the first time that I've ever heard of an accommodation of an accommodation.

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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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