Prior to the mid 1990's, the issue of scents in the workplace was virtually non-existent. By 2000, so called "Halifax Hysteria" erupted with the introduction of local by-laws prohibiting perfume in many public places. In April 2000, The Globe and Mail published this article on the issue saying:
"The Halifax scent crackdown has drawn notice not only in the Canadian Press but in The New York Times ("Canada Sniffs and Dislikes the Smell"), The Wall Street Journal ("A City Smells Perfume and Holds Its Nose") and Glamour magazine. The right-wing American Spectator has just run a piece by professional skunk-science debunker Michael Fumento. Dubbing the scent ban the "Halifax holy war," Fumento dismissed the entire North American anti-scent lobby, declaring that "nowhere is it worse than in ocean-fresh Halifax."
The issue continues to arise more than ten years later at human rights tribunals, workers' compensation claims and grievance arbitrations. Just recently, in the Ontario Human Rights Tribunal decision of Kovios and Inteleservices Canada Inc.,the result was that there was no discrimination. However, the Tribunal only reached that conclusion after conducting a full hearing at substantial cost (unrecoverable) by the employer to defend. The following is our review of that case followed by tips on dealing with scents at the workplace.
The facts
Inteleservices operates a call center comprising two shifts and approximately 200 agents. As per industry standard, the workplace consisted of a large open space with rows of cubicles each with four foot walls. When interviewed for the job in January 2010, the applicant told the recruiter she had scent sensitivity and asked if this would be a problem. She was told that although there was a fragrance-free policy, with over 200 people working in the same area it would not be possible to rule out any exposure.
As part of its orientation training attended by the applicant and other new hires, a trainer reviewed Inteleservices' policies and procedures, including the fragrance-free policy. The applicant claimed that she immediately noticed that another member of the orientation group was wearing perfume. The applicant began to develop a migraine-type headache, a symptom of her sensitivity. She did not say anything to the individual wearing the perfume or the trainer until the end of the day when she told the trainer that "someone" was wearing a fragrance and this was a problem for her.
The applicant returned for the second day of training in the same room the next day. The applicant testified that the perfume was present again but she did not say anything until the break. At that time, she told the trainer that she might have to leave and identified the individual wearing the perfume. The trainer provided a fan thinking it might solve the issue but it did not.
The third day of training took place in the same room and the applicant said that she did not notice any fragrance in the small room. The group then moved to a larger training room with better ventilation – a move allegedly made by Inteleservices to accommodate the applicant. Unfortunately, the applicant encountered a perfume smell in the large room and she complained to the trainer saying she didn't think she could continue. The trainer suggested that they leave the training group and the applicant could finish her training by shadowing a worker on the call centre floor. The applicant then claimed that individual she was shadowing was wearing perfume and she believed that further exposure would only make her feel worse. After 10 minutes, she left the workstation and told the manager that she had to leave work. The applicant testified that the manager had no suggestions on how to accommodate her and so she left the workplace.
The following day the applicant called Inteleservices locally and its head office in the United States to complain about her experience. Not satisfied with the results of those phone calls, she eventually contacted the Human Rights Commission. In a nutshell, her complaint was that Inteleservices did not enforce its scent-free policy.
What the tribunal said
By now, you're probably thinking that something's missing and you're right. No medical information. The entire complaint failed as a result of the applicant not taking steps to follow her human rights obligation. Here's what the vice-chair of the Tribunal said:
"[the human resources manager] should perhaps have picked up on the applicant's statement that she had been unable to continue working in the call centre and the applicant's suggestion that the reason for this was that the respondent's fragrance-free policy was not being enforced. However, in all of the circumstances of this case, I find that [the human resources manager's] failure to clarify the situation does not mean that the respondent discriminated against the applicant by failing to accommodate. In particular, whether the conversation between the applicant and [the human resources manager] occurred as the applicant was leaving the workplace or a few days later, the applicant did not explain what accommodation she was seeking, apart from enforcement of the fragrance-free policy. In the circumstances of this case, it appears to me that from the outset, the applicant had a positive obligation to accurately identify to the respondent what her accommodation needs were and to clearly explain to the respondent why the solutions that had been attempted were not adequate."
What this means for you
The following are top tips gathered from this case and others on dealing with this issue at the workplace.
- If you have a policy, implement it, train on it and enforce
it.
If you have a scent-free policy make sure you implement it and take steps to enforce it – set forth all stakeholder responsibilities including the affected employee's obligation to bring forward specific and individual concerns. - Request clear and unequivocal objective medical evidence
when safe accommodation is an issue.
Employers are entitled to clear and unequivocal objective medical evidence to support an individual's safe return to work and accommodation. - Take the time necessary to explore accommodation especially
when there is serious risk of harm.
The accommodation process sometimes takes a significant amount of time and particularly may do so when an employee's safety or risk of re-injury is at stake. - Know the extent of accommodation required based on the
individual's medical information and the workplace.
The employer's duty to accommodate, where there is clear and unequivocal objective medical evidence that it is safe for the employee to return to work may include:- Staff training;
- Working with the health and safety committees or representatives and others to identify areas for improvement in air quality and air flow;
- Examining the possibility of air filtration; and
- Where warranted, exploring telecommuting.
- Sometimes accommodation may not be possible.
The employer's duty to accommodate ends where there is no clear and unequivocal medical evidence that it is safe for the employee to return to work (i.e., there can be no reasonable level of sureness that the employer can provide a safe environment).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
