Company’s failure to eliminate all scents from workplace wasn’t a failure to accommodate without specific requirements from employee: Tribunal
An Ontario employer who didn’t eliminate all scents from the workplace didn’t discriminate against an employee with hypersensitivity to smells, the Ontario Human Rights Tribunal has ruled.
Susan Kovios began work with Inteleservices Canada, a call centre operator, on Jan. 14, 2010. During her interview, Kovios explained that she had a hypersensitivity to scents and the call centre was an open work area with short cubicles, but Inteleservices told her it had a fragrance-free policy in the workplace.
Over three days of training in the call centre, Kovios had difficulties due to other employees wearing perfume and cologne. Each day, she spoke to the trainer about it, but the problem persisted. Kovios was allowed to job shadow another employee rather than finish the training, but that employee wore cologne as well. On Jan. 18, Kovios told management she couldn’t continue working in the office because the fragrance-free policy wasn’t being enforced.
Inteleservices didn’t have any options for her, as the only positions it had available were in the call centre. It also accommodated employees with scent sensitivity when employees were found to be wearing perfume or cologne. However Kovios felt she couldn’t work in an environment that wasn’t free of all scents, including ones only she could detect with her hypersensitivity. Since she didn’t ask for any specific accommodation and Inteleservices felt she seemed intent on leaving, it assumed she had quit when she didn’t return to the office.
Kovios filed a human rights complaint, claiming Inteleservices discriminated against her based on her disability and failed to accommodate her.
The Ontario Human Rights Tribunal found that Inteleservices had a fragrance-free policy and tried to enforce it when made aware of issues, such as sending employees who were wearing fragrances home to change or telling them to wash. It was also apparent that management wasn’t aware of the scents Kovios smelled during training until she complained of them, and then it allowed her to forgo the last day of training and shadow another employee instead — whose wearing of cologne was not apparent and Kovios didn’t specifically point it out. Given that Kovios could detect scents that others couldn’t because of her hypersensitivity, there was no indication the company didn’t do what it could to deal with her problem, said the tribunal.
The tribunal also noted that Kovios didn’t make any specific accommodation requests before she left the workplace, but rather only said she couldn’t work where there were scents and the fragrance-free policy needed to be strictly enforced. Without more information on her ability to detect scents others couldn’t, Teleservices couldn’t be expected to come up with a plan to accommodate Kovios. As a result, there was no discrimination, said the tribunal.
“It appears to me that from the outset, (Kovios) had a positive obligation to identify to (Inteleservices) what her accommodation needs were and to clearly explain to (Inteleservices) why the solutions that had been attempted were not adequate,” said the tribunal.
For more information see:
•Kovios v. Inteleservices Canada Inc., 2012 HRTO 1570 (Ont. Human Rights Trib.).