March 9, 2010
Scents Alive! Perfume Allergy Case Settles for $100,000
A Detroit city planner with an allergy to perfume is savoring the sweet smell of legal success after the city agreed to pay her $100,000 and be more sensitive to the chemically sensitive.
The agreement -– obtained through a public records act request -- settled Susan McBride's lawsuit under the Americans With Disabilities Act which alleged the City of Detroit failed to reasonably accommodate her allergy after she complained that a co-worker's perfume made it difficult for her to breathe.
Some critics attacked McBride for being overly sensitive and abusing the court system. But many workplaces are now perfume-free and a judge in November 2008 denied the city's motion to dismiss, ruling McBride could proceed with a disability claim “based on the major life activity of breathing.”
As part of the settlement, which the parties signed last month, the city will post a notice on bulletin boards in its offices announcing that “Our goal is to be sensitive to employees with perfume and chemical sensitivities” and asking employees to refrain from wearing scented products, including but not limited to colognes, after-shave lotions, perfumes, deodorants, body/face lotions, hair sprays or similar products.
The city's new no-scent policy goes further than a policy adopted by the Michigan Department of Information which provides that “[m]ild scents may be worn in moderation, but strong or offensive scents that become detrimental to the work unit will not be tolerated.” McBride had cited that policy as an example of what she was seeking.
In a similar case, a Detroit jury awarded $10.6 million in 2005 to a former DJ who alleged a radio station failed to protect her from a co-worker's perfume. A judge later reduced Erin Weber's award to $814,000.
McBride claimed her exposure to co-worker Rosalind Chaney's perfume caused her to suffer breathing problems including a cough that “causes [her] throat to close a little and [her] chest to tighten” and “something sharp and irritating ... like a really sharp pebble” in her throat. She sued the city in July 2007 after management refused to adopt a department-wide scent policy or relocate either her or Chaney.
The city argued in a motion to dismiss that McBride's allergy to perfume was not a disability under the ADA because it did not substantially limit a “major life activity.” But U.S. District Judge Lawrence P. Zatkoff found she had “produced evidence that her breathing is significantly restricted as compared to the average person.”
“Defendant also has not offered any explanation why it could not simply have ordered Ms. Chaney to cease wearing offensive perfumes or oils, or why such a directive would constitute an unreasonable accommodation,” he noted.
Given the outcome of the Weber case, the City of Detroit's initial insensitivity toward McBride was surprising. Now it appears to be bending over backward to accommodate the chemically insensitive, even asking employees not to use “scented candles, perfume samples from magazines, spray or solid air fresheners, room deodorizers, plug-in wall air fresheners, cleaning compounds or similar products.”
An abbreviated no-scent notice will also be posted in the lobby of the planning department and the entire policy will be included in the city's employee manual.
