Update: telecommuting-as-accommodation and perfume-sensitivity ADA case

by Walter Olson on November 15, 2012

In August we linked a case in which a woman sued her government employer for rejecting her request to telecommute even though it would help to accommodate what she said was her sensitivity to the perfumes worn by co-workers. The court at that time declined to dismiss her claim as invalid as a matter of law; now, however, it has dismissed it because she failed to produce necessary evidence. [Jon Hyman, earlier]

{ 5 comments }

1 DEM 11.15.12 at 12:52 pm

This is a good window into the incredibly over-regulated world the American workplace has become. It is no longer within an employer’s purview to define the conditions of employment; rather, even a tenuous claim of disability requires a fact-intensive and expensive foray into whether the employee can perform the “essential functions” of a job on conditions the employee happens to prefer.

Note also that the plaintiff admitted that she could not perform all the essential functions of her job from home. Presumably that admission was made during a deposition, for if she had made such an admission in a complaint, she could not have defeated a motion to dismiss (as she in fact did). To survive the motion to dismiss, she almost certainly had to allege that she could in fact perform all essential function from home. In short, her testimony almost certainly directly contradicted a core allegation in her complaint. And yet there is no report that she has been or will be sanctioned for this. She and her lawyer have wasted her employer’s time and money with impunity.

2 Anonymous Attorney 11.15.12 at 2:08 pm

I wonder if it’s time to introduce the concept of “de minimus” into American law. That is, vest the courts with the power to dismiss a case — even one that could make it on the merits — as being simply too little, too insignificant, too whiny to occupy the time and attention of the legal system. Is there such a power? If not, shouldn’t there be? Some criminal systems allow for dismissal of a case that’s technically sound, but too teensy to bother with.

A lady complaining she has to work from home because her co-workers’ perfume is too strong sounds like a good candidate.

3 DEM 11.15.12 at 2:19 pm

Anon Attorney, the closest thing I can think of is the amount in controversy requirement in federal court, but of course that does not apply to a federal claim. Perhaps it should.

4 CarLitGuy 11.15.12 at 4:48 pm

How about “loser pays?”, with counsel jointly and severably liable to the reasonable fees/costs of the successful party. Of course, that would also require a clear and robust offer of settlement provision in the statutes.

I’d like to believe that such a change would greatly reduce litigation at both ends of the spectrum – outrageous actions and outrageous defenses, both.

5 Tony Hooker 11.17.12 at 11:08 pm

99% of the time, I agree with you, but in this case, chemical sensitivity can be a bear to deal with.

I work in a cubicle environment myself, and when someone near me is wearing perfume, or god forbid, decides to use nail polish remover near me, I’m looking at a severe headache for several hours.

I’m fortunate enough to work from home most of the time, but when I do go into the office, and I end up on the elevator with someone who wears an excessive amount of perfume, It’s extremely difficult to deal with. If I had a choice, I’d rather have a punch in the face or a knee to the groin instead of the headache from certain smells.

I don’t know if it’s reasonable to ask a company to change everything to deal with this sort of sensitivity, but it can be very difficult for the person who has to live with it.

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