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Employers must face multiple chemical sensitivity and toxic injury issues courts rule




Perfume BottleIn an unprecedented week the reailty of employees developing multiple chemical sensitivity and chemical injury caused by fragrances and other toxins in the workplace has been brought home to employers by the courts.

In Detroit, Michigan, USA, a city employee won a lawsuit after her managers failed to take her complaints that co-workers' perfume was making her sick. Meanwhile, in Australia, substantial damages were awarded to an airline cabin attendant whose respiratory illness was attributed to toxic cabin air.

In the first case, City of Detroit employee Susan McBride filed a lawsuit under the Americans with Disabilities Act (ADA). After her complaints that a co-worker’s perfume made it difficult for her to breathe were ignored by her superiors she decided to let a court decide whether her chemical sensitivity should be taken more seriously.

The city argued the perfume sensitivity did not qualify as a major life activity under the ADA but, in what is now a landmark case, the judge disagreed, stating that the ability to breathe freely certainly qualifies as a major life activity.

McBride was awarded $100,000 compensation and the City was ordered to enact a new policy on fragrances to include posting notices in buildings where McBride works, asking other city employees not to wear scents at work.

The notices will be worded as follows: To accommodate employees who are medically sensitive to the chemicals in scented products, the city of Detroit requests that you refrain from wearing scented products, including but not limited to colognes, after-shave, lotions, perfumes, deodorants, body/face lotions, hair sprays or similar products.

McBride as well as winning a personal battle to have her health protected at her place of work may have set a precedent that will now force all employers (at least in the US) to take the complaints of chemically sensitive individuals seriously to avoid potentially expensive litigation.

The wording of the notices to be placed by the City of Detroit is precisely what is needed in every workplace to protect the not insignificant 5%-25% of individuals who are estimated to be sensitive to scented products to some degree.

Perhaps employers will now begin to take the position that many North American colleges and universities have done and adopt fragrance bans to protect employee health and avoid future lawsuits, only time will tell.

In Australia we have another first and another precedent being set for employers to consider more carefully the health effects of the environments in which their employees are asked to work. In the first verdict of its kind anywhere in the world a court awarded flight attendant Joanne Turner substantial damages for respiratory damage caused by toxic fumes in the cabin of the BAE 146 regional jet aircraft on which she flew.

On 4 March 1992, toxic fumes entered the cabin in the "bleed air" from the aircrafts engines during a descent into Brisbane. Since this time Turner has suffered from chronic respiratory problems. The New South Wales Court of Appeal court upheld the award of A$139,000 (US$129,000) compensation, originally awarded a year ago by the Dust Diseases Tribunal. It is to be paid by the insurers of the now defunct East-West Airlines, which had appealed against the tribunal verdict. 

Bleed air is air that passes through the engines before being circulated through the cabin ventilation system. Aircraft manufacturers, airlines, and aviation authorities have recently admitted that such bleed air potentially contains toxic chemicals derived from fuel, oil, lubricants and other sources picked up as the air passes through the engines.

In June another case in Australia, brought by cabin crew from the same airline group, but this time against the aircraft manufacturer, will be heard.

A number of support and advocacy groups have been established worldwide by former airline employees including pilots and cabin crew along with frequent flyers whose health has been damaged by toxic cabin fumes. This case now provides the precedent needed for other cases to succeed and provides incentive for aircraft manufacturers, airlines and regulatory authorities to take steps to address this important health issue.

With these two unprecedented court rulings coming along at the same time, this is likely to be one week that those affected by chemical injury will not forget.


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