Monday, March 8, 2010

Sniffing out the dangers of the new ADA

perfumeOnPoint News and Overlawyered report that the City of Detroit has settled a disability discrimination lawsuit brought by an employee with a perfume allergy. She had claimed that the city failed to reasonably accommodate her allergy after she complained that a co-worker’s perfume made it difficult for her to breathe. Per the settlement, the employee will receive $100,000, and the city will adopt a policy prohibiting employees from wearing scented products. Even though this lawsuit was brought prior to the ADA’s amendments took effect, it nevertheless serves as a good illustration of the breadth of the new ADA.

The ADA amendments are intended to make it much easier for individuals to demonstrate that they meet the definition of “disability.” To have a disability, an individual must be “substantially limited” in performing a “major life activity” as compared to most people in the general population. An impairment need not prevent, or even significantly or severely restrict, the individual’s performance of a major life activity The determination is supposed to be a common-sense assessment based on comparing the individual’s ability to perform a specific major life activity with that of most people in the general population. Major life activities include daily functions, as well as the operation of major bodily functions (which would include, for example, the respiratory system).

If an employee has a chemical sensitivity to certain smells, that allergy will likely substantially affect the employee’s respiratory system, thus rendering the employee “disabled” under the ADA.

The focus in ADA cases has shifted from the legal argument of whether an employee’s medical condition rises the level of an ADA-protected disability, to the factual issue of whether the employer reasonably accommodated that disability. Employers need to be very aware of this change in focus. Managers and supervisors should be trained in their obligations to engage in the interactive process with employees to determine what reasonable accommodations – if any – can be made to enable the employee to perform the essential functions of the job. Lots more employees will be able to claim the protections of the ADA for lots more medical issues. How managers and supervisors respond to requests for reasonable accommodations will dictate the strength of an employer’s position in ADA lawsuits going forward.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or