By Jim Cline and Mitchel Riese
A recent news story that garnered national attention concerned the discipline of a Social Security employee by the Social Security Administration, who reprimanded the employee for excessive workplace flatulence. The reprimand was delivered to the employee in a five-page letter that included a log of representative dates and times when the employee was recorded, “releasing the awful and unpleasant odor” in his Baltimore office. After the employee filed a grievance over the reprimand, the Social Security Administration withdrew it.
In the letter labeling the charge as “Conduct Unbecoming a Federal Employee,” the manager indicated that:
I spoke with you in regards of your releasing a bodily gas in the module during work hours. I asked you if you could make it to the rest room before releasing the awful and unpleasant odor. I informed you that the smell from your being flatulent disturbed your coworkers and disrupted the work environment. Several of your coworkers complained about your flatulence. You said that you would try not pass gas and that you would turn your fan on when it happens. I explained to you the turning on the fan would cause the smell to spread and worse in the air quality in the module.
The parties disagreed as to whether the condition was “uncontrollable” or merely “uncontrolled.” The employee indicated that he had “uncontrollable flatulence,” but offered to buy Gas-X to deal with his lactose intolerance problem. The manager declined that proposed accommodation indicating he believed that “you can control this condition.” The letter goes on to enumerate 60 occasions in which the employee emitted gas. The manager suggests that the conduct was somehow intentional and indicated he was issuing the reprimand because he wanted the employee to understand “the seriousness of your misconduct.”
Perhaps, whoever rebuts it, cuts it. The employee fought back, grieving the reprimand. After further advice by legal counsel, management concluded that they had a stinker of a case and decided to withdraw the reprimand. Setting aside any progressive discipline/just cause concerns, had the employee actually had medical conditions contributed to the flatulence, the employer would have faced a possible disability discrimination issue.
You might wonder (or at least we did), how this situation would be analyzed under the Washington Law Against Discrimination (WSLAD) and what rights an employee, not to mention the employee’s coworkers have in this type of situation. So, in case you should ever face this problem in your workplace, we thought we would take the time (perhaps because we have so much time to spare) to clear the air with a WSLAD analysis of the rights and responsibilities of the parties.
In this case, by not providing any medical documentation that the flatulence was being caused by his medical condition, a question might exist as to whether a “disability” actually exists. Under Washington law, lactose intolerance would be considered a disability. Once the employee asserts the existence of a medical condition, the employer has the obligation to inquire further, and the employee has an obligation to cooperate in that inquiry.
However, in order for the employer to be obligated to reasonably accommodate the disability, the condition “must have a substantially limiting effect upon the individual’s ability to perform his or her job… or the individual’s access to equal benefits, privileges, or terms or conditions of employment;” RCW 49.60.040 (7)(d). The employer here, should have, but failed to take the employees disability claim seriously and failed to request the relevant documentation. The employer erred by simply assuming that the gas emissions were intentional, never apparently considering the possibility that the passed gas could be involuntary.
So, the issue would be whether the fact that the employee’s condition has an adverse effect on the air quality of the employee’s coworkers substantially limits the employee’s ability to perform his job. Certainly, the fact that the employer believes that the employee’s condition is creating an unpleasant work environment for the employee’s coworkers would tend to show that the employee’s condition does have a substantially limiting affect upon his ability to perform his job. However, it is likely that a court would, when confronted with this issue, focus on whether or not the employee’s lactose intolerance affects his ability to perform the essential functions of his job. From the facts of the case, it does not appear that the employee’s lactose intolerance and the resulting flatulent condition substantially limits the employee’s ability to perform his job.
The situation is analogous in some ways, to cases that have arisen concerning individuals suffering from Tourette’s Syndrome, which can cause involuntary yelling by individuals who have the condition. In some cases, individuals with the condition will involuntarily shout racial epithets. Other employees complained that the screaming was creating a racially hostile work environment. The courts have held that the employer need not accommodate the individual with Tourette’s syndrome screaming racial epithets. Even the Federal Department of Justice has weighed in on this issue, supporting such a claim in a lawsuit against Wal-Mart. Similarly, it is likely that a court would determine that the employer need not accommodate an employee’s flatulence, even if it is caused by a condition that constitutes a disability under state law.
Disability laws do not require an employer to necessarily make an accommodation when the employee’s conduct involves a “direct threat” to others. On this occasion, while the employees did not appreciate the odiferous actions of their coworker, there was no immediate indication that their own personal health was directly threatened by his emissions. If the employer were to establish that the emitted gases were in some way harmful, as opposed to merely unpleasant, a different analysis might apply. There was, for example, no indication here that people were gasping or suffering aggravated lung conditions. In such a case, the employer might face competing disability claims.
While the Social Security Administration did, and finally took a long breath in thinking its legal obligations through, withdrew the reprimand in the case of the flatulent employee, had they not done so, and the employee had continued to challenge the imposition of the reprimand, it is unlikely that the employer would have been required to accommodate the employee’s condition. The employee’s argument to the contrary did not pass the sniff test.
Some of you might not appreciate the extent to which state and federal disability laws go to protect employees and make think that this analysis reminds you of the Dickens passage:
“If the law supposes that,” said Mr. Bumble,… “the law is a ass…”
But, we embrace these legal mandates as part of our professional commitment and would never be heard to say that.
