Smelly Workplace? A Case Of 'Extreme Gas' In The Ol’ Factory

Can you be fired for farting up a storm (or for associating with someone who does)?

bad smell foul odor smelly fartIs there a more uncomfortable – and unpleasant – situation than sitting in a crowded car when a certain odor is detected emanating from someone in the car? There is an awkward silence – what can one say? – until or unless someone asks to crack open the window, or makes a half-hearted, stupid “joke,” and everyone squirms and eyes each other subtly.

Eventually, however, the odor disappears.

But what if it doesn’t disappear, and this happens in the workplace and worsens by the day, due to someone’s disability?  Big problem.

This became a real lawsuit, and it was no joke – either to the sufferer or the employer.

The Unfortunate Employee

An employee weighed 420 pounds, suffered from morbid obesity and diabetes, and claimed that this substantially limited the major life activities of eating, sleeping, breathing, exercising, and walking – potentially, therefore, deemed disabilities under the Americans With Disabilities Act (“ADA”).

The Unpleasant Side Effects

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He underwent gastric bypass surgery and developed very unwanted side effects: “extreme gas” and uncontrollable diarrhea.  His symptoms “were progressive and worsened” and caused “significant disruption in the workplace.”

He was subjected to the inevitable nasty comments from execs and co-workers: the president “complained about [his] impaired digestive and bowel functions,” and told him that he “needed to work from home and that the office environment smelled because of [his] symptoms.”

And his wife, who was also an employee, was subjected to these comments about her husband.

The “Harassed” Wife/Co-Employee

There’s a twist to this case:  although this poor guy was eventually fired (and may or may not have pursued legal remedies), it was his wife – who quit the day he was fired – who sued! 

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Huh?

She claimed that she was forced to quit (“constructive discharge”) because of the pervasive harassment (“hostile work environment”) that she suffered because of her husband’s disability.

Her complaint alleged that the execs made frequent, harassing comments to her about her disabled husband, such as “We have to do something about Rich,” “We cannot run an office and have visitors with the odor in the office,” and “Tell Rich that we are getting complaints from visitors who have problems with the odors.”

What was her claim?

“Associational Discrimination”

Six years ago, the Supreme Court held that the anti-retaliation provision of Title VII protects employees from termination where that employee was the fiancé of another employee who exercised her statutory right to file a discrimination complaint – “associational discrimination.”

Justice Scalia stated that a “reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired,” adding that “[h]urting him was the unlawful act by which the employer punished her.”  Justice Scalia – who knew?

Courts have included the ADA in this prohibition against associational discrimination – an employer cannot take adverse actions against a qualified individual “because of the known disability of an individual with whom the qualified individual is known to have a relationship.”

The Result Of The Workplace Smell Case

Unfortunately for the suffering wife, the Court recently dismissed her case, finding that she failed to sufficiently allege an adverse employment action against her by the company –  after all, she was not fired, but quit.  It noted that while she “adequately alleged conduct that was pervasive, but not severe, nonetheless …  the circumstances alleged by Plaintiff, when viewed as a whole and in the light most favorable to Plaintiff, fail to show that the alleged conduct altered the conditions of Plaintiff’s employment so as to create an abusive work environment.”

Odor Cases Throughout the USA

The Court found only a few hostile work environment claims “premised on coworkers and supervisors complaining about workers’ bathroom usage and body odor in the workplace.”

But the facts of these cases were, well, hardly redolent of a sweet workplace:

  1. A supervisor made “comments and practical jokes about plaintiff’s frequent bathroom usage due to Crohn’s disease … telling the plaintiff that he was ‘full of shit,’ locking the plaintiff in a bathroom with a piece of rope and a piece of wood and telling him to order pizza if he was ‘going to spend all day in the bathroom,’ and encouraging the plaintiff to move his office into the bathroom.” The Court held that this was “simple teasing” and “isolated incidents.”
  2. Plaintiff alleged that he was “ridiculed because of the odor which came from the restroom due to the condition of her digestive system.” Stanley v. White Swan, Inc., No. CIV-00-1291-F, 2002 U.S. Dist. LEXIS 27901, *26, 45-46 (W.D. Okla. Sept. 26, 2002).
  3. The court “[did] not doubt that being confronted by a supervisor with written complaints from co-workers, male and female, regarding odors emanating from one’s person or personal property would be embarrassing.” Pierce v. Mich. Dep’t of Corr., No. 4-cv-37, 2001 U.S. Dist. LEXIS 11992, *62 (W.D. Mich. Aug. 9, 2001).

An Odor Expert Opines

I checked with an odor expert about his perspective on this case.  I’ll give Jeff Charlton, an Environmental Consultant in Greater London, the last comment:

“This is a case under health and safety law … The fart is methane and this has a maximum exposure level which requires controls. As the source is the client he must be controlled to reduce the emissions to the lowest possible levels. I think common assault on colleagues’ olfactory senses would be a case too. It reminds me of the bad old days (40 years ago) when I sacked a female bookkeeper for smelling fishy and colleagues kept up an embarrassing banter and kept putting deodorants on her desk. After she was sacked I found it was an overloaded electrical socket giving off the smell. Obviously, I’m not a lawyer or sensitive employer.”

Obviously, Jeff.

Takeaway

Anyway, while this case may be sui generis, punishing an employee because of who she associates with just doesn’t pass the smell test.


richard-b-cohenRichard B. Cohen has litigated and arbitrated complex business and employment disputes for almost 40 years, and is a partner in the NYC office of the national “cloud” law firm FisherBroyles. He is the creator and author of his firm’s Employment Discrimination blog, and received an award from the American Bar Association for his blog posts. You can reach him at Richard.Cohen@fisherbroyles.com and follow him on Twitter at @richard09535496.