By Mark F. Kluger and William H. Healey
You would be amazed how often we are asked by employers for advice on dealing with an employee emitting offensive body odor at work. We always ask ourselves: all this higher education and we are dealing with questions about smelly employees? In the past, we used to just say “hose them down,” but we have since learned that there may be some underlying legal issues to address.
On August 16, 2017, a former employee of Capital One, N.A. sued the bank in federal court for violations of the Americans with Disabilities Act (“ADA”) based on its handling of his body odor and obesity issues. For 16 years, the plaintiff in that case was a relationship manager dealing with people seeking car loans (hopefully on the phone). Time to get serious. According to the Complaint, the employee had 4 surgeries to address a kidney issue. The side effects of those surgeries and medications, included significant weight gain and at times the emission of a “strong odor.” The employee requested a few accommodations under the ADA to allow him to continue to perform the essential functions of his job. Specifically, he asked the Human Resources Department (1) to allow him to work in a vacant office away from his co-workers when the body odor was evident; (2) for a work chair that did not have arm rests on the sides so he could fit into it; and (3) to permit him to work from home on occasion when the side effects of the surgeries necessitated it. The Human Resources Department deemed these accommodation requests to be reasonable and granted them. Unfortunately, the employee’s immediate supervisors did not like the smell of HR’s recommendations and rejected all of them.
On December 22, 2015, Capital One issued a Conduct Memo to the employee which allegedly criticized his hygiene and appearance. Three months later, the bank terminated him. It is important to keep in mind that there are often two sides to every story and we have only seen the Complaint filed last month. Capital One has yet to comment or defend itself, but the legal issues raised in the case are for real. Before we address them, there is one practical lesson that needs to be noted. Managers must be trained that HR and the employer’s in-house or outside lawyers may know something about employment law that they do not. In this case, the managers should not have been in a position to override HR’s recommended accommodations, which seems to have led to the lawsuit.
Under the ADA, obesity caused by an underlying medical condition that results in limitations to a major life activity, such as breathing, walking or sitting, will likely be considered a disability. That would require an employer to engage in an interactive process with an employee seeking accommodation to determine whether a reasonable one is available that would allow the employee to perform the essential functions of their job. Whether obesity that is not caused by an underlying medical condition, like too many Twinkies for example, is a disability under the ADA depends on who you ask. The EEOC says that it can be but the federal appellate courts around the country are split.
The body odor issue is a different story. If the body odor results from an underlying medical condition, it is likely that a court would find that it may be a disability if an employee can satisfy the other requirements, such as that the condition limits one or more major life activities which may in fact be difficult to establish. If the body odor is not the side effect of a medical condition or medication and is just bad hygiene, there can be no argument that there is statutory protection for that situation. But how is an employer to know? That’s where we can be useful.
Let us be clear: management-side employment lawyers are well known for having excellent personal hygiene. We do, however, know how employers should approach an employee who may not. Unfortunately, there is no delicate way around confronting the employee directly with the issue. So with air freshener in hand and the windows open, it is important of course for the discussion to be in private. We highly recommend that a second management employee be present for the discussion because although we want to minimize embarrassment for the employee, this is the kind of chat that can go sideways quickly and easily.
We recommend not only telling the employee that there have been complaints about a noticeable body odor, but also offering the possibility that it is either a hygiene or medical issue– either way, it needs to be addressed. It is also important, when possible, for those having the discussion with the employee to confirm the facts with their own noses. This will eliminate the possible claim of mistaken identity. If the employee volunteers that it is a medical condition, an employer has every right to request a doctor’s explanation as a starting point to determining whether there an ADA issue to consider. If it turns out to be only a hygiene issue….hose them down! Sorry, we don’t do that anymore. But let Bob from Accounting know that the smell needs to go away asap.
We have had some employers describe employee complaints about strong scents (perfumes or colognes) as well. Interestingly, the discussion with the employee who intentionally wears the artificial, chemically induced smell can be the same as with one that has body odor. By now, it should be no surprise that the ADA may protect the complaining employee who might have an allergic reaction to the excessive use of scents and is entitled to a reasonable accommodation preventing such exposure.
You may have been expecting more from our years of higher education, but when it comes to body odor, this is all we’ve got.