Even if you aren’t positive an employee’s problems amount to a disability, don’t worry about offering an accommodation. You aren’t admitting the employee is disabled, nor are you “regarding” him or her as disabled. You can still challenge the disability without ADA liability.
Recent case: Tammy Franks worked for the Central Garden & Pet Company for a decade before she was promoted to traffic manager. Within weeks, she started to complain tothat co-workers were wearing offensive fragrances that aggravated a condition she called “fragrance intolerance.” She claimed that when she smelled the perfume and cologne, she became nauseous and developed headaches, sinus trouble, watery eyes, shortness of breath and tightening of the chest.
The company tried to accommodate Franks by changing the office cleaning schedule so she wouldn’t be exposed to odors that she said aggravated her condition. Franks complained that some employees actually began wearing more fragrance to annoy her and cause a reaction. By February she was missing work regularly and constantly e-mailing the plant manager and others, demanding they tell her co-workers to stop wearing cologne and perfume.
Finally, Franks told management she was going to start leaving early to avoid fragrances around the time clock. She never came back to work. She sued, alleging she had been harassed based on her disability and that the company had regarded her as disabled by making some accommodations.
But the court tossed out the case. Her sudden fragrance problems at work did not mean she was disabled—the problem did not substantially impair a major life function. The court found Franks easily could have avoided fragrances. Plus, her employer’s accommodation attempts did not equal treating her as though she were disabled. (Franks v. Central Garden & Pet, No. 3:06-CV-68, MD GA, 2007)