By Dave Strausfeld, J.D.
Assuming a hostile work environment claim is actionable under the ADA—and the statute’s similarity to Title VII suggests it is—an employee who suffered from chemical sensitivities failed to state a claim that she was subjected to a hostile work environment when her supervisor and some of her coworkers refused to abandon their perfume, cologne, and other scented products despite being officially instructed to do so. Their conduct—at least as currently pleaded—was not so severe or pervasive as to be objectively abusive, held a federal district court in Illinois, granting a motion to dismiss without prejudice (Alanis v. Metra
, February 8, 2016, Shah, M.).
The employee, who worked in a transit authority’s Office of Civil Rights, began to have reactions to smells in the workplace and requested as an accommodation a scent-free workspace. After confirming her medical condition with her doctors, the transit authority granted her request and instructed her coworkers that they were not permitted to wear perfumes or colognes. But some continued to do so. Her own supervisor allegedly wore perfume at the office. Also, her supervisor allegedly permitted employees to eat lunch in a conference room near the employee’s cubicle, even though she was bothered by food odors.
In her lawsuit, she claimed she was subjected to a hostile work environment in violation of her rights under the ADA.
HWE actionable under ADA?
The transit authority first pointed out that the Seventh Circuit has not recognized the existence of HWE claims under the ADA. True enough, the court agreed. But the similarity in statutory language between the ADA and Title VII, along with “the widely accepted notion” that a hostile work environment constitutes a form of discrimination, together suggested “that the claim does exist under the ADA,” the court reasoned.
Not severe or pervasive.
But even assuming such a cause of action exists, the employee did not state a claim because any hostile environment in this case was not severe or pervasive, the court concluded. For one thing, she was not subjected to insults or intimidation or physical threats. While her supervisor allegedly did
behave in a hostile manner toward her by applying perfume in her presence on an unknown number of occasions, and once wearing heavy perfume after the employee complained about being bothered by fragrances, her supervisor’s behavior was not serious enough, or, as far as might be gleaned from the complaint, frequent enough, to render her work environment an abusive one.
Also, her supervisor’s alleged threat of discipline after the employee objected to fragrances did not “plausibly suggest the kind of intimidating or derisive atmosphere indicative of a hostile workplace,” even when combined with other evidence. Nevertheless, because the employee might be able to cure some of her complaint’s deficiencies through re-pleading, the court dismissed her HWE claim without prejudice.
The employee also asserted a number of other claims, which led to a dispute over res judicata because she had asserted similar claims in another lawsuit. Applying federal common law, the court determined that only her FMLA claim was barred by res judicata. Her Section 1981 discrimination and retaliation claims were not precluded from moving ahead on this ground because they did not arise from the same transaction or set of operative facts as her claims in the other lawsuit—that is, from the same, or nearly the same, factual allegations.