Barb Wilkie's EHN Website
Last updated 2008

By Betty Kreeger

Disclaimer: This article is for information purposes only and should not be construed as legal advice.

For years, those disabled by respiratory illnesses struggled for recognition that a "smoke-free" work environment was the only accommodation that could be considered reasonable. Decades of lawsuits brought only inadequate piecemeal accommodation. Why? Because the courts and administrative agencies such as the Department of Justice (DOJ), Equal Employment Opportunity Commission (EEOC) and Department of Fair Employment and Housing (DFEH) declared it unreasonable to ask people to give up their right to smoke. Today, the chemically sensitive face this same grueling fight.

Just as virtually no case law existed then for those who sought a "smoke-free" work accommodation, little exists now for those of us who require a "fragrance-free" work environment. Fortunately, we do have these tobacco cases as a basis upon which to build good legal arguments for "fragrance-free" as a reasonable accommodation. One such case is a 1991 California case County of Fresno v. Fair Employment and Housing Commission, 226 Cal.App.3d 1541. Here, two County employees with severe respiratory illness, which caused them to have a hypersensitivity to tobacco smoke, filed suit when their employer failed to accommodate them with a "smoke-free" work environment. They argued that anything less was not an accommodation. The Court agreed.

Is hypersensitivity a disability? During the appeal, the employer first tried to show that the employees were not disabled. However, the Court ruled against the employer, stating that "the employees were physically handicapped . . . . since hypersensitivity to tobacco smoke causes a loss of function to those with severe lung disease." It reasoned that "tobacco smoke in the environment may simply be an environmental limitation to those who do not suffer from severe respiratory disorders and that to most people, tobacco smoke is merely irritating, distasteful or discomforting. However, someone who suffers from a respiratory disorder and whose ability to breathe is severely limited by tobacco smoke is, nevertheless, physically handicapped within the meaning of the Act." The importance of documenting your disability cannot be stressed enough. If the employer cannot show undue hardship, they will then attack your status as a disabled person.

What is considered a reasonable accommodation? That can vary widely. In this case, the County had made numerous "good-faith" efforts to accommodate. However, the court held that "an employer cannot hide behind its asserted good faith in order to avoid responsibility for discriminatory policies and working conditions" and that "despite the county's good faith efforts to accommodate the employees, the county failed to make a reasonable accommodation since there was not a smoke-free environment in which the employees could work." It further ruled that "although the county attempted a variety of remedial measures [the suit listed 11], none of the measures accomplished the accommodating environment requested by the employees. Even when supervisors asked smokers to be considerate of nonsmokers, smokers did not stop smoking. Therefore, the county's good faith efforts to accommodate the employees were not sufficient, since they did not alleviate the problem." This is similar to the argument that employers use that they are accommodating the chemically sensitive when they ask employees to wear only "a little bit of fragrance."

In addition, citing two earlier cases, the Commission ruled that "for accommodation efforts to be reasonable they must be successful" and "must be individually tailored to me the needs of the handicapped employee."

Finally, the ADA and other government regulations require that "facilities used by employees [be] readily accessible to and usable by handicapped individuals." Clearly, if the environment is not free of fragrance, then it is simply not accessible to and usable by the chemically sensitive.

Although the circumstances in every case will be different, and every plaintiff must prove his or her case, I believe this case is important as a basis for making the argument that the only reasonable accommodation for a chemically sensitive person who meets all the other requirements under the ADA is a fragrance-free, chemical-free working environment. That may be accomplished in several ways depending on the individual circumstances, but government agencies charged with the protection of the rights of those disabled by MCS (and the courts) need to understand that a fragrance/chemical free work environment must be the goal.

Disclaimer: This article is for information purposes only and should not be construed as legal advice.

NOTE: This article appears in EHN's Jan - Feb 1999 newsletter, The New Reactor.