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The Difficulties of Discussing Hygiene

How do you best handle an employee who comes to work with offensive body odor? My HR department has been receiving complaints about this employee and I believe we will need to speak with her.

Monday, September 24, 2012
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Question: How do you best handle an employee who comes to work with offensive body odor? My HR department has been receiving complaints about this employee and I believe we will need to speak with her. How can I have this difficult conversation without running the risk of her thinking that I am harassing or discriminating against her, as I believe she is from a different cultural background and I do not know if she has any medical issues? 

Answer: While excessive body odor is certainly an unpleasant and uncomfortable topic to have to discuss, an employer facing such an issue should be mindful of two statutes in which addressing an employee's body-odor problem could potentially implicate legal concerns.

Americans with Disabilities Act

The Americans with Disabilities Act prohibits an employer with 15 or more employees from discharging or otherwise discriminating against a qualified individual on the basis of disability. See 42 U.S.C. § 12112(a). Under the ADA, the term "disability" means:

  1. a physical or mental impairment that substantially limits one or more "major life activities," including working;
  1. a record of such an impairment; or
  1. being regarded as having such an impairment, commonly referred to as discrimination based on a "perceived disability."

See § 12102(1).

Though excessive body odor is not itself categorized as a disability under the ADA, it is possible that the problem could be caused by an underlying medical condition that could implicate the protections of the ADA. 

It is the employee's responsibility to inform his or her employer of any medical condition(s) that may substantially limit his or her ability to perform the duties of the job. As such, an employer should not initiate a discussion regarding an employee's body odor by asking if the employee has a medical condition that could be the cause of the problem. Even if the employee states that he or she does not have such a condition, such unprompted questioning by the employer has the potential to raise a claim for discrimination based on a "perceived disability." The advisable course is to raise the body odor issue with the employee in a straightforward, yet general manner that does not suggest a cause for the problem, but rather allows the employee to offer details about a possible cause. 

If an employee voluntarily informs the employer that his or her excessive body odor is the result of a medical condition, however, it then becomes the responsibility of the employer to begin a dialogue with the employee to determine how best to address the issue while remaining within the boundaries of the ADA and related state or local disability-discrimination laws. 

Under the ADA, an employer must provide a disabled employee with any "reasonable accommodation" that may allow the employee to continue to perform the tasks of his or her job, so long as such accommodation does not pose an undue hardship on the employer. In the case of an employee suffering from a medical condition causing excessive body odor, potential reasonable accommodations may include increasing the ventilation in the employee's work area, allowing the employee more frequent breaks for hygienic or medical treatment of the problem, or permitting the employee to partly work from home, if desired. 

As discussed, however, an accommodation is only considered "reasonable" if it does not pose an undue hardship on the employer. Such a determination is necessarily fact-sensitive and may take into consideration a number of factors, including the nature and cost of the accommodation, the overall financial resources of the employer, and how the accommodation may impact the regular operations of the business. See § 12111(10).

Title VII

Title VII of the Civil Rights Act of 1964 prohibits employers from discharging or otherwise discriminating against an employee based on the individual's race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). As such, employers should be mindful when addressing an employee's body odor problem to avoid making any statements that expressly or even implicitly suggest that the issue is related in some way to the employee's ethnicity, race, sex or cultural or religious background. Should the employee attempt to steer the conversation toward ethnic or cultural issues, remind him or her that the problem is simply the body odor itself and that you are only bringing it to the employee's attention because it is an issue affecting the smooth operation of the workplace. 

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Title VII further protects employees from workplace harassment on the basis of one of the protected characteristics discussed above -- a type of discrimination sometimes referred to as "hostile work environment." An employer may be responsible for such harassment even if it is not carried out by an employee's supervisor or superior if: (1) the harassment is severe or pervasive enough to negatively affect the terms, conditions or privileges or an employee's work environment, and (2) the employer knows or should have known about the harassment but fails to promptly take action to stop it. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986). As such, employers should be mindful of any incidents of insults, offensive jokes or comments, threats or other harassing behavior being directed at an employee suffering from excessive body odor, and take prompt and aggressive steps to curtail such behavior.

Final Notes and Suggested Steps

Taking into consideration the legal implications discussed above, the following are some suggested best practices for addressing an employee's body odor problem:

* Schedule a time to meet with the employee privately to discuss the issue. Consider having a supervisor or HR representative with whom the employee has a positive relationship conduct the discussion or be present during the discussion.

* Do not attempt to address the issue by sending anonymous notes or by leaving deodorant or other hygiene products on the employee's desk, as this may be viewed by the employee as harassing or threatening behavior. 

* Be sensitive and tactful, yet direct and to the point. Don't sugar-coat the discussion and don't beat around the bush. Don't avoid stating what the problem is, but acknowledge the awkwardness of the topic and make clear that it is not your goal to unnecessarily embarrass the employee.

* Do not question the employee about a possible medical cause for his or her body odor without being prompted, but be prepared to engage in a discussion about possible accommodations should the employee indicate that there is a medical issue at the root of the problem. 

If an employee does not indicate a medical cause for the problem, proceed according to standard company policy for dealing with an appearance or dress code issue. Set a reasonable timeline for resolving the problem, and offer assistance as appropriate.

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