( Disponible en anglais seulement )
Employers often face a variety of complaints from employees about health concerns due to individual conditions. One Ontario employer recently faced a Human Rights complaint for its failure to eliminate all scents from the workplace in the case of Kovios v. Inteleservices Canada Inc. 2012 HRTO 1570 (Ont. Human Rights Trib.)
The complainant began work at a call centre in Ontario in January of 2010. During her interview she disclosed that she was hypersensitive to scents. The employer’s facility, which was an open-concept work area with short cubicles (walls approximately four feet high), presented a potential problem.
The employer also had a fragrance-free policy in the workplace. The policy was only a guideline, and did not a ban scented products. Instead, employees were asked to help make the workplace more comfortable for people suffering from allergies and sensitivities to different products and chemicals. Enforcement relied on the goodwill of all employees, customers, clients and visitors.
During the first few days of training, the employee had health difficulties because of other employees’ perfumes and colognes. She spoke to the training personnel about the problem and was allowed to job-shadow another employee rather than finish her training. The problems persisted. A few days later, the complainant advised management that she could no longer continue work in the office because the fragrance-free policy was not being enforced. The only positions available to this employee were in the call centre. The complainant felt that she could not work in a workplace that was not free of scents. She did not, however, request any specific accommodation. When the complainant did not return to the office, the employer presumed that she had quit.
A Human Rights complaint ensued, claiming the employer had discriminated on the basis of her disability and a failure to accommodate by the employer. The Ontario Human Rights Tribunal found the employer had a fragrance-free policy and had made efforts to enforce it. Employees who were wearing fragrances were at times sent home to change or advised to wash off their cologne or perfume to the extent possible.
The Tribunal noted that the complainant did not make any specific requests for accommodation, saying only that she could not work where there were scents and the fragrance-free policy was not being enforced. Since the employer was not told about the complainant’s ability to detect scents that others could not, it could not reasonably be expected to come up with a plan to accommodate her disability.
It was held that there was no discrimination as the employee had a positive obligation to identify her accommodation needs, and to explain why the solutions offered by the employer were not adequate.
This case illustrates a common problem some employers face when attempting to accommodate employees with unique disabilities. The accommodation process requires input from employees, who must clearly identify their disabilities and the changes that might be necessary to accommodate them.