( Disponible en anglais seulement )
Author: Erik Marshall
What does a company have to do when an employee discloses that he or she has sensitivity to scents and/or fragrances in the workplace and requests accommodation? This was the question before the Human Rights Tribunal of Ontario (“HRTO”) in a recently decided case called Kovios v. Inteleservices Canada Inc. Spoiler alert: this story ends well for employers.
Inteleservices Canada Inc. (“Company”) operates a call centre in a large open space that has rows of cubicles and is occupied by approximately 200 agents at any one time. Susan Kovios (“Applicant”), has a scent and fragrance sensitivity. The Applicant informed the Company of this during her initial job interview and asked if this would be a problem. She was told that the Company had a fragrance-free policy, but that with over 200 people working in the same area, it would not be possible to guarantee that there would be no exposure to scents and fragrances. It was unclear whether employees were told at the time they were hired to not wear any perfume or cologne at all or only not to wear strong perfume or cologne.
Following the job interview, the Applicant attended the call centre to start a three-day training session along with eight other trainees. On the first day, the Applicant noticed that another trainee was wearing perfume and reported to her manager at the end of the day that she had developed a headache in response to the scent.
On day two, the Applicant again noticed that a particular trainee was wearing perfume and reported the same to her manager at lunchtime also stating that she may have to leave since she was not feeling well. That afternoon, a fan was placed in the room and directed at the Applicant. In her Application, the Applicant stated that it was she who requested this, but at the hearing, she denied this and stated that the fan actually made the situation worse as now the scented air was blowing in her face.
On day three, the manager moved the training session to a larger room with better ventilation to accommodate the Applicant. Nevertheless, the Applicant smelled perfume as she took her seat in the larger training room. When she asked the trainee beside her if she smelled perfume, the other trainee admitted that it was her who was wearing perfume and moved away from the Applicant. The Applicant complained about the smell to her manager and stated that she did not think she could continue in the environment because of the strong smell of perfume. Since the training was almost finished, the manager offered to let the Applicant job-shadow an employee in the call centre, a larger open space, for the rest of the day. The Applicant agreed and so the manager took her to the call centre floor and introduced her to a call centre worker. Before she left, the manager made sure that there were no obvious scents in the area.
The Applicant testified that the call centre worker she was assigned to was wearing cologne and that this was immediately obvious to her. She stated that she felt nauseous, light headed and on the verge of a panic attack. After about ten minutes, the Applicant told her manager that she could not stay in the environment and that she would have to leave. The manager stated that the Applicant did not ask for any specific accommodation and only call centre jobs were available.
In the final result, the HRTO decided that the Company did not discriminate against the Applicant and in particular did not fail to accommodate the Applicant’s disability. The HRTO held that the Company did not fail to accommodate the Applicant’s disability by failing to enforce its fragrance-free policy as alleged because the fragrance-free policy was not intended to restrict the use of all scented products in the workplace but rather only asked for voluntary adherence. The question of whether the workplace could be accommodated without undue hardship so that the Applicant would not be exposed even to scents not noticeable by others was not a question that arose in this case since a request for such accommodation was never made or suggested by the Applicant.
This decision illustrates that, in cases like this, employees have a positive duty to accurately identify for their employer what their accommodation needs are and to clearly explain why the solutions that have been attempted are not adequate. Failure to do so may be the difference between a finding of discrimination and a dismissal of an Application, as was the case here.