With the advent of allergy season and the growing awareness of disability accommodation, Texas employment lawyers are facing unique challenges each day. Consider the case of the woman who exhibits all the symptoms of a severe allergic reaction including heavy coughing and watery eyes. It turns out the allergic reaction is being triggered by a nearby co-worker’s perfume. The woman has requested that her co-worker stop wearing the perfume, to which the co-worker has replied , “Sorry, but it’s a wonderful fragrance”. The woman has requested to be moved several seats away, but the boss has been reluctant to become involved.
What are the woman’s rights in this situation ? Can the employer order the co-worker not to wear the offending fragrance ?
According to the U.S. Equal Employment Opportunity Commission (EEOC) , which regulates the Americans With Disabilities Act, a person is disabled if they possess a physical or mental impairment that inhibits a major life activity.
The key question under Texas employment law is whether the woman’s allergies fall under the classification of a disability. If so, the boss’ refusal to get involved could hurt the company. Under the Americans With Disabilities Act , any serious physical condition may be considered a disability. Any condition that affects a major life activity such as breathing would be considered a disability. Allergies and asthma are certainly conditions that affect major life activities and qualify under the ADA .
So what should the employer do? Under the ADA, the employer is obligated to make a “reasonable accommodation” unless it would cause the employer an “undue burden”. There is no strict legal definition for what constitutes an undue burden. Courts will look to the size of the business and the costs of the changes. In our case, moving the woman a few seats away from the offending perfume, would constitute a reasonable accommodation, and would most likely be legally required.
Nor should you be afraid to say something if your employer refuses to make such reasonable accommodation. The ADA expressly prohibits retaliation or discrimination against those individuals who exercise their rights or assist others in doing so. If you feel you are the victim of coercion or harassment for exercising your rights, you may contact the U.S. Attorney General , or your Texas State Attorney General , and file a complaint. The Attorney General can bring a lawsuit to hold employers accountable where there is a general pattern of discrimination.
In addition, you may hire a Texas employment attorney to acquire a court injunction to force the employer to make such reasonable accommodation and pay legal fees. A San Antonio personal injury attorney can fight for your reinstatement and back pay if applicable.