The Sweet Smell of Human Rights: Tribunal finds Employee Not Discriminated Against Due to Scent Sensitivities

The Human Rights Tribunal of Ontario has ruled that an employee with a hypersensitivity to certain scents did not experience discrimination in employment as a result of her employer’s inability to snuff out all smells in the workplace.

Susan Kovios has a scent and fragrance sensitivity. By all accounts it is severe. On January 14th, 2010, Kovios commenced employment with call center operator, Inteleservices Canada Inc. On January 18th, Kovios left Inteleservices’ office for good after experiencing severe reactions to the perfumes and colognes worn by her colleagues. In the human rights application that followed, Kovios alleged that Inteleservices had failed to accommodate her disability by failing to enforce its fragrance-free policy.

While it was unclear from the medical evidence whether Kovios’ scent sensitivity constituted a disability under the Human Rights Code, noting that Inteleservices was prepared to treat it as such, the Tribunal proceeded on the assumption that Kovios did in fact have a disability within the meaning of the Code. That said, given Kovios’ hypersensitivity, the Tribunal held that a more rigid enforcement of Inteleservices’ fragrance-free policy would have made little difference in the circumstances. In the Tribunal’s view, Kovios “…required not only an environment free of noticeable scents, but an environment free of scents that were not detectable to others but affected her because of her ‘hypersensitivity.'”

In any event, apart from the strict enforcement of its fragrance-free policy, Kovios never explained to Inteleservices what accommodation she was seeking. As a result, the issue of whether Inteleservices had met its duty to accommodate was never engaged. On that basis, the Tribunal determined that Kovios had not been discriminated against. 

Kovios v. Inteleservices Canada Inc., 2012 HRTO 1570.

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Andy Pushalik

About Andy Pushalik

Andy is a partner and the practice group leader of the Employment and Labour group of Dentons’ Toronto office. Andy has a broad labour and employment practice serving as “go to” outside labour and employment counsel to a wide variety of companies, charities and public sector organizations. Clients frequently seek Andy’s advice on sensitive human resources matters including workplace restructurings, discrimination and harassment complaints and workplace investigations. In addition, Andy regularly represents employers in all aspects of labour and employment litigation, including wrongful dismissal matters, grievance arbitrations and restrictive covenant disputes.

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