Human Rights Office

Human Rights Office
Human Rights Office

Kovios v. Inteleservices Canada Inc., 2012 HRTO 1570 (CanLII)

Summary:

In this case, the applicant, Susan Kovios, has a scent and fragrance sensitivity. In January of 2010 the applicant responded to a job ad from the respondent, Inteleservices Canada Inc. During the interview process, Ms. Kovios disclosed her scent sensitivity and asked if it would be a problem in the workplace. At the time, the respondent assured Ms. Kovios that it would not be a problem, referencing the company’s fragrance-free policy.  After being hired, the applicant commenced a three day training session with the respondent.  During the course of this three day training session the applicant encountered a number of problems related to scent. In each case, once notified, the respondent took measures to alleviate Ms. Kovios’ discomfort and/or concern. On day two, once notified, the respondent directed a fan at Ms. Kovios in an effort to displace and diffuse scent in the room. On the third day of training Ms. Kovios noticed a strong smell of cologne in the training room. After reporting this smell, it was suggested that Ms. Kovios could complete the rest of the training by shadowing one of the workers on the call centre floor. After moving to shadow one of the workers on the call centre floor, Ms. Kovios indicated that this particular worker was wearing cologne. At this point, Ms. Kovios felt like she was on the verge of a panic attack and stated that she could not remain in the environment without accommodation. After this third day of training Ms. Kovios did not return to work. In making its decision that the respondent did not discriminate against the respondent on the basis of disability, the Tribunal stated that the medical documentation provided by the applicant provided very little detail about the nature and extent of the applicant’s scent sensitivity. In addition, the Tribunal commented on the fact that Ms. Kovios was not clear regarding her need for accommodation (i.e. that she could not be exposed to scents that are not detectable by others). In its decision the Tribunal stated “an employer cannot provide accommodation for a problem that it does not know about” (para 65).

Question(s) to be Determined:

1.    Did the respondent, discriminate against the applicant on the basis of disability therefore failing to accommodate the applicant’s disability (i.e. her sensitivity to scents)?

Findings:

1.    Did the respondent, discriminate against the applicant on the basis of disability therefore failing to accommodate the applicant’s disability (i.e. her sensitivity to scents)?

NO

Reasoning:

1.    In this case it was decided that the respondent did not discriminate against the applicant on the basis of disability. Therefore, it was further decided that the respondent had not failed to accommodate the applicant’s disability (i.e. her sensitivity to scents). In making this finding the Tribunal stated, “It is apparent, based on her evidence, that the applicant’s experience is that she is affected by scents that are not detectable by others. If the accommodation that she required was that she could not be exposed to scents that are not detectable by others, she should have been clear that was the case. She did not make this clear and instead indicated that her needs could be met by having the fragrance-free policy enforced. However, the fragrance-free policy, in any of its iterations, requests that employees not use scented products and in particular refrain from using strongly scented products” (para 68).

Further reiterating this point, the Tribunal stated, “in the circumstances of this case, it appears to me that from the outset, the applicant had a positive obligation to accurately identify to the respondent what her accommodation needs were and to clearly explain to the respondent why the solutions that had been attempted were not adequate” (para 72).