The Scent of a Lawsuit: Synthetic Fragrance-Related Litigation
FRAGRANCE ALLERGY AND SENSITIVITY IN THE WORKPLACE
Is fragrance allergy a real thing? Can the undisclosed chemicals in synthetic fragrance have immediate health consequences for some people? How is fragrance sensitivity handled in the workplace, with many people working in close proximity to each other, wearing any number of scented personal products?
When people with fragrance sensitivity or fragrance allergy do not have their needs addressed satisfactorily by management, they are increasingly turning to litigation. By ignoring or otherwise not accommodating the employee’s disability, the employer could be violating the Americans With Disabilities Act (ADA). In response to such lawsuits, some employers and public places have banned the use of any scented products. According to the Labor Law Center, employers need to be aware that allergies to fragrance or multiple chemical sensitivities can be disabilities under ADA.
ARE FRAGRANCE REACTIONS PHYSIOLOGICAL OR PSYCHOLOGICAL?
Interestingly, the Canadian Medical Association Journal says that the science supporting fragrance bans in the workplace is fuzzy and inconclusive, as there is no reliable diagnostic test for fragrance allergies. Synthetic fragrances are complicated; one fragrance can be made up of many different ingredients. Pamela Dalton, a psychologist at the Monell Chemical Senses Center which is an independent, nonprofit scientific institute in Philadelphia where researchers study taste and smell, says that while some fragrance materials indeed can have direct physiological effects, most people are probably having a psychological reaction. “When it comes to scents that are used in air fresheners, or someone else’s perfume or carpet freshener or that sort of thing, there is an element of loss of control that I think plays in the sense of personal space and that their lungs are being invaded,” Dalton adds. “I think that heightens the anxiety about the exposure.” This anxiety can cause real physical symptoms, including elevated heart rate and blood pressure, rapid breathing, increased stress hormones, and hyperventilation.”
So…it’s all in their heads?
TO THE EXTREME: MULTIPLE CHEMICAL SENSITIVITY (MCS)
That is certainly not the case for everyone claiming sensitivity to fragrance. Many private companies and governmental organizations have enacted policies that support the treatment of Multiple Chemical Sensitivity as a bona fide disorder. Multiple Chemical Sensitivity, or MCS, is Multiple Chemical Sensitivity (MCS) is a condition characterized by a heightened sensitivity to chemicals. People who have MCS can become ill when exposed to a variety of chemicals, many of which are commonly encountered in everyday life. Some people have only mild chemical sensitivities, while others have a more severe form of the illness, which is referred to as MCS.
Substances that frequently cause symptoms in chemically sensitive people include pesticides, perfume/cologne and other scented products, fresh paint, new carpets, many building materials, solvents, fresh ink, smoke, vehicle exhaust, industrial fumes, and many cleaning products. Other scented products include air “fresheners,” fragrance-emitting devices, fabric softener, potpourri, incense, essential oils, and most soaps, shampoos, hair products, skin lotions, and laundry detergents.Fragrances were named “allergen of the year” for 2007 by the American Contact Dermatitis Society. There are more than 2,800 fragrance ingredients listed in the database of the Research Institute for Fragrance Materials, Inc. (RIFM). At least 100 of these ingredients are known allergens.
CDC, HUD, AND SOCIAL SECURITY ADMINISTRATION TAKE FRAGRANCE ISSUES SERIOUSLY
In June 2009, the CDC implemented a new indoor environmental quality policy for all its facilities. This policy prohibits, among other things: Incense, candles, or reed diffusers and plug-in or spray air fresheners. The policy also states: "[The] CDC encourages employees to be as fragrance-free as possible when they arrive in the workplace. Fragrance is not appropriate for a professional work environment, and the use of some products with fragrance may be detrimental to the health of workers with chemical sensitivities, allergies, asthma, and chronic headaches/migraines." The U.S. Department of Housing and Urban Development (HUD) considers multiple chemical sensitivity to be a disability under the Fair Housing Act and the Americans with Disabilities Act. The Social Security Administration has also recognized MCS as a disabling condition.
FRAGRANCE LAWSUIT AGAINST THE CITY OF DETROIT
A lawsuit was filed against the City of Detroit in 2007 because an employee alleged her health was negatively impacted by a co-worker’s perfume. The city's reaction and initial response to the employee was that there was no medical diagnosis to support her disability, They refused her request, and did not work with her to find a reasonable accommodation. The city eventually settled with the plaintiff in 2010 for $100,000 and added the following section to its ADA (Americans with Disabilities) Handbook:
“Our goal is to be sensitive to employees with perfume and chemical sensitivities. Employees who are sensitive to perfumes and chemicals may suffer potentially serious health consequences. In order to accommodate employees who are medically sensitive to the chemicals in scented products, the City of Detroit requests that you refrain from wearing scented products, including but not limited to colognes, after-shave lotions, perfumes, deodorants, body/face lotions, hair sprays or similar products. The city of Detroit also asks you to refrain the use of scented candles, perfume samples from magazines, spray or solid air fresheners, room deodorizers, plug-in wall air fresheners, cleaning compounds or similar products. Our employees with medical chemical sensitivities thank you for your cooperation.”
In this case, the federal court ruled that an allergy to scents can be a disability under ADAAA, the most recent amendment to the Americans with Disabilities Act. Under this law enforced by the EEOC (Equal Employment Opportunity Commission), when an employee has severe symptoms as a result of being exposed to odors or scents, that can be a disability. Such symptoms would include asthma, breathing difficulties, or an itchy, inflamed rash called contact dermatitis. Once an employee has an allergy to a chemical, the symptoms are likely to be triggered by smaller and smaller amounts of exposure. However, according to the Labor Law Center, not every employee with an allergy to fragrance is entitled to an accommodation. Employees with a minor allergy that causes a runny nose or sneezing are not entitled to accommodation under ADA. In order to be considered a disability, an employee must have a condition that substantially limits one or more major life activities.
In this particular case, the court found that the plaintiff's MCS was a disability that interferred with the major life activity of breathing.
FRAGRANCE LAWSUIT AGAINST INFINITY BROADCASTING BY LOCAL DJ
In 2005, a lawsuit was filed against Infinity Broadcasting by local DJ Erin Weber who claimed her career collapsed after she developed a potentially life-threatening chemical sensitivity - she said the company helped create the medical disability when it forced her to broadcast for five hours from a booth filled with toxic fumes from two large bottles of nail polish remover that were spilled during a morning show about pedicures. She was fired in 2001 after she filed a complaint with the EEOC claiming she was paid less than men in comparable jobs, and after she complained about exposure to co-workers' Tresor perfume. Exposure to this perfume reportedly caused Weber to have medical problems relating to her throat and voice. Weber claimed the chemical base made her sick and that exposure could potentially cause her airways to swell into life-threatening anaphylactic shock. According to Weber’s attorney, she is not sensitive to natural odors such as flower scents but to the chemicals used in mixing the perfumes. A federal jury awarded her over $10 million dollars, but a federal judge later reduced the award to $814,000.
The media’s coverage of these lawsuits and the public’s social media comments clearly indicate that most see fragrance sensitivity as ‘fussiness’ and/or evidence of hypochondria. Headlines like "Smells Like $100,000" and "Who Wins From Lawsuit Abuse?" seem to portray those suffering from fragrance-related problems as money-grubbing and the suits as frivolous. Sometimes, however, exposure to the chemical cocktail that is synthetic fragrance can be life-threatening.
AXE AND ANAPHYLAXIS
A Bethlehem, Pennsylvania teen missed most of his freshmen year in high school due to repeated life-threatening reactions to Axe Body Spray. Brandon Silk’s allergic reactions started in eighth grade . He would feel nauseous and suffer inexplicable headaches. His mother Rosa eventually made the decision to home-school Brandon after his allergy required ER visits on multiple occasions and an EpiPen shot three school days in a row. Unilever refused to provide her with the ingredients in Axe so she could determine what ingredient exactly her son is allergic to. “They told me if I want the ingredients in Axe, I need to have a doctor call them and it’s got to be in writing,” she said. She had a doctor do that, but the doctor received no reply.
Brandon Silk’s plight was not the only instance in which Axe Body Spray was involved in scent-related fracas: In May 2012 a fire alarm was triggered at a Connecticut high school when an 'overabundance' of AXE was sprayed in a locker room. In 2013, Medgar Evers College Preparatory School in Brooklyn, New York was temporarily shut down after eight students were hospitalized after being exposed to AXE body spray in a sixth-grade classroom.
UPDATE: Unilever, parent company of both Axe Body Spray and, more recently, the Seventh Generation brand, in February 2017 agreed to disclose fragrance ingredients. They will list fragrance ingredients above 0.01 percent (100 parts per million) in a product’s formulation (via the SmartLabel app, but not on the actual labels).
Clearly for some people, synthetic fragrance is far more than just a nuisance, and employers ignore concerns about fragrance at their peril. It is my opinion that eventually, all manufacturers of synthetically scented products will be required to list their fragrance components on product labels.
Women's Voices for the Earth is a great resource for more information about synthetic fragrance and other product safety issues. The infographic below focuses on skin allergy, but it is emphasized that allergy is not the only health problem linked to fragrance.
Susan McBride vs City of Detroit https://www.leagle.com/decision/infdco20081126998
No Perfume for Detroit City Workers http://blogs.findlaw.com/legally_weird/2010/03/no-perfume-at-work-fed-court-says.html
New ADA Guidelines for Fragrance Sensitivity https://www.laborlawcenter.com/education-center/new-ada-guidelines-for-fragrance-sensitivity/
Fragrance Sensitivity a Disability Under ADA https://www.laborlawcenter.com/education-center/fragrance-sensitivity-a-disability-under-ada/
Who Wins from Lawsuit Abuse? Hint:It’s Not You or Me https://www.overlawyered.com/2007/07/who-wins-from-lawsuit-abuse-hint-its-not-you-or-me/
Government Publishing Office, United States District Court, Eastern District of MichiganSouthern Division, Case No. 02-74602 https://www.gpo.gov/fdsys/pkg/USCOURTS-mied-2_02-cv-74602/pdf/USCOURTS-mied-2_02-cv-74602-2.pdf
Perfume Allergy Sparks $10 Million Verdict http://www.sterlingattorneys.com/Articles/Perfume-Allergy-Sparks-10-Million-Verdict.shtml
Smells Like $100,000: Detroit settles case over complaint of city worker's perfume http://www.mlive.com/news/detroit/index.ssf/2010/03/smells_like_100000_detroit_set.html
Freedom High School Student Allergic to Axe Body Spray to be Homeschooled http://www.lehighvalleylive.com/bethlehem/index.ssf/2013/03/freedom_student_allergic_to_ax.html
Canadian Medical Association Journal: Scent-fee Policies Generally Unjustified http://www.cmaj.ca/content/183/6/E315.full.pdf
United States Department Of Education Office Of Special Education and Rehabilitation Services Administration Informational Memorandum https://www2.ed.gov/policy/speced/guid/rsa/im/2002/im-02-04.pdf
Chemical Sensitivity Foundation http://www.chemicalsensitivityfoundation.org/
Extreme Chemical Sensitivity Makes Sufferers Allergic to Life http://discovermagazine.com/2013/nov/13-allergic-life
Allergen of the Year: Fragrance http://www.medscape.com/viewarticle/559985_1