School Board Did Not Violate ADA by Not Providing Odor and Perfume Free Working Environment
Editors Note: This article was initially published with a title indicating that it was a New Jersey based story, when that is not the case. It has been corrected, and we apologize for any confusion.
Nada Feldman worked as a middle school teacher for the Charlotte-Mecklenburg Board of Education. On February 18, 2009, plaintiff’s doctor provided a note to the Board of Education stating that plaintiff “should not be exposed to high concentrations of perfume or chemicals because of a documented condition.” In a supplemental note, the physician specified that plaintiff should not be exposed to “paint, toxic odoriferous cleaning products, bleach, tar, scented candles, mold in carpet or room and new carpeting and the like.” Plaintiff also indicated that she had adverse reactions to deodorant, cologne, and hand lotion.
Shortly thereafter plaintiff experienced health problems related to a student who was wearing perfume. The Board suggested that it would be willing to post a sign in plaintiff’s classroom indicating that she had an allergy to perfume. However, plaintiff declined this proposal because she said it would violate her privacy rights.
During the summer of 2009, plaintiff moved to a new school on account of under-enrollment at her current school. On September 9, 2009, plaintiff complained to the Principal that the custodians were using a harsh bleach to clean a bathroom. Although such bleach was prohibited for use by the Board, the custodians had purchased the bleach themselves. The Principal advised the staff never to use bleach again in the school.
On September 10, 2009, the next day, plaintiff encountered an overwhelming smell of perfume on a student. Earlier in the day she had kicked a student out of class for smelling of perfume. The Assistant Principal investigated the perfume exposure and stated that he did not smell any perfume. The Principal had the student searched to see if she was in possession of perfume, but nothing was found. He offered medical assistance to plaintiff, who refused the assistance and then left school, never to return. Plaintiff resigned and brought suit under the ADA for failure to make reasonable accommodations. She alleged that the school told her to quit and admitted that it could not guarantee a safe environment for her.
Initially, the Court considered whether plaintiff could prove a disability for multiple chemical sensitivity. In light of the ADA Amendments Act, the Court assumed plaintiff could meet the test given congressional emphasis that whether an impairment substantially limits a major life activity should not demand extensive analysis. Plaintiff successfully argued that breathing was substantially limited when she was in the presence of perfume, paint, bleach or other chemicals.
Next, the Court considered whether the Board failed to make reasonable accommodations. The Court was not persuaded that the Board constructively discharged plaintiff or told her to quit. The Board denied any such direction to plaintiff to quit her job. In fact, one day before she was allegedly told to quit, the Board had written to her to assure her that it would continue to work to address her ADA concerns. The Board also offered her administrative leave with pay should she have to miss work for health reasons given that she already had exhausted her sick leave. The Court concluded that plaintiff was not credible in stating she had been instructed to quit.
Most importantly, the Court seemed to suggest that plaintiff’s request for an odor free work environment was not reasonable. “While Plaintiff has never specified the type of accommodation she believes would have allowed her to perform the job of a public middle school teacher, she seems to demand a complete ban on any chemicals or scented products at any school where she works. This is plainly an unreasonable request. A public school could never be free from any objectionable smell or any deodorant, perfume, cologne, hand lotion, or cleaning products. Nonetheless, Defendant made great efforts to attempt to accommodate Plaintiff’s needs.”
In the end the Court dismissed the law suit holding that plaintiff failed to show that a reasonable accommodation existed that would have allowed her to perform her job as a middle school teacher. This case can be found at Feldman v. Charlotte-Mecklenburg Board of Education, 2012 U.S. Dist. LEXIS 117636 (D.N.C. August 21, 2012). It is an instructive case because dealing with multiple chemical sensitivity is a challenge for many employers. In this case the plaintiff was unsuccessful because she could not identify any particular reasonable accommodation which would have allowed her to perform the essential functions of her job.
About the Author
John H. Geaney, a shareholder with Capehart Scatchard, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates. His blog may be read at http://www.njworkerscompblog.com.
Mr. Geaney is a member of the National Workers' Compensation Defense Network.