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Scent Sensitivity Not a Disability: Does This ADA Ruling Stink?

By Robyn Hagan Cain on February 14, 2013 | Last updated on March 21, 2019

Tina Milton was a clerical employee with the Texas Department of Criminal Justice (TDCJ) from November 1990 until April 19, 2007. She was responsible for looking for coded gang messages in inmate mail. She was terminated, administratively, after failing to provide medical documentation verifying FMLA leave.

Milton sued, arguing that she suffered from a disability: Namely, a sensitivity to scented candles and wall plug-ins.

If you think that wouldn’t create a problem for a TDCJ employee, you would be wrong.

Milton's sensitivity generally does not stop her from doing her job, but the smell at TDJC's Wynne Unit located in a musty, dusty century-old building is overwhelming to the large majority of its employees. Hence, the scented candles and plug-ins.

Milton first alerted TDCJ her problem with the use of scented products in the workplace in 2006, following her return to work from sinus surgery. She addressed the issue informally with her TDCJ supervisors, asking that the scented products be removed. Then she filed a formal ADA accommodation request, simply asking for "No plug in or candles. Strong odors."

Her request was denied, and she was given 90 days to find another TDCJ position that could accommodate her respiratory sensitivity.

When she brought other positions to the ADA coordinator's attention, the coordinator decided that they were equally unsuitable due to dust. (The coordinator mistakenly viewed Milton as being allergic to everything airborne.)

After Milton was terminated for failure to timely submit her FMLA documentation, she alleged that TDCJ had violated her rights under the ADA. The Fifth Circuit disagreed, noting the recognized differences between a simple "impairment" and an ADA-recognized "disability." To qualify as the latter, the impairment must "substantially limit the individual."

Although there was ample evidence that Milton's condition affects her life activities, the Fifth Circuit generally has not recognized disabilities based on conditions that the individual can effectively mitigate.

Milton's sensitivity to perfumed odors certainly caused her discomfort and inconvenience, but this condition was narrowly restricted in time and place and could be avoided in the larger context outside of the particular workplace at a particular employer. She regularly mitigated her side effects by self-segregating in public and social settings in an attempt to avoid exposure to scented products.

The appellate court reasoned that Milton's sensitivity could not, in totality, be called severe; it simply did not rise to the level of a substantial impairment of the major life activity -- that is, the ability to engage in productive and compensable work for which she was qualified by virtue of her experience and training.

Because Milton did not raise a genuine issue of material fact as to whether she was a qualified individual with a disability within the meaning of the ADA, the Fifth Circuit affirmed the district court's decision to dismiss her case.

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