Says Citicorp Unit Failed to Accommodate Her Alleged Disability — But a Jury Doesn’t Buy It
The Wall Street Journal
Rochelle Sharpe
SAN MATEO, Calif. — Beatrice Shaw knew her body odor sometimes got so rancid that it made her co-workers feel sick. She had watched with dismay as they put fans and Airwick deodorizers on their desks. Even her own lawyer described it as “just a killer.”
But unless someone at Citicorp Credit Services Inc. here told her when the intermittent scent erupted — sometimes every few weeks, sometimes just two or three times a year — she said she had no idea she was smelling at all.
For a while, Ms. Shaw’s bosses gently told her when she needed a shower, giving her a Post-It note with a flower drawn on it or the message: “It’s time.” But then a new supervisor decided that Ms. Shaw should deal with the problem herself, and that’s when the real commotion began.
Despite the qualms of her own attorney, the 47-year-old bankruptcy clerk sued the Citicorp subsidiary for discrimination under the Americans With Disabilities Act a year ago, contending that the banking company should accommodate her body odor just as it would any other handicap.
“People don’t realize this is a disability because they don’t have the problem,” she says. “This is one of those topics people either laugh about or don’t talk about.”
But this dispute sparked a trial that tested the limits of the two-year-old federal disabilities law. Her attorney, Paul Boynton, questioned whether businesses are as willing to accommodate disabilities that disrupt the workplace, such as body odor or flatulence, as to make simple changes, such as adding wheelchair ramps.
Ms. Shaw’s suit sought $1.2 million, the maximum $300,000 penalty for each of the four times she believed her supervisors violated the ADA. She said she wanted the company to accommodate her disability, simply by letting her know politely when the smell struck.
Citicorp officials say they would have accommodated Ms. Shaw if they had been convinced her body odor was a disability. All they had wanted, they say, was a doctor’s note explaining the physical cause, but instead they received letters that essentially described the case as a medical mystery.
Ms. Shaw’s bosses, who said they could smell her from 35 feet away, thought poor hygiene was really to blame; they said she smelled worst, with an odor reminiscent of a locker room or dirty sweat socks, on days when her hair and hands looked greasy and unwashed.
Ms. Shaw first became aware of her problem in the mid-1970s, when she was working at a school-district office. One day, she found an Ann Landers column on her desk, asking for advice on how to tell a co-worker she had body odor. The article suggested, among other things, leaving the column on the employee’s desk. Ms. Shaw recalls bursting into tears when she realized she had yet another unusual physical ailment. She had been dogged by medical problems ever since being hit head-on by a drunken driver in 1967, an accident that eventually forced her to undergo extensive throat surgery. Left with a reconstructed windpipe just one-fourth normal size, she now speaks only in a soft rasp.
Ironically, Citicorp hired Ms. Shaw through its outreach program to employ the disabled. But it knew only about her automobile injuries, not her body odor.
For years, the pungent aroma appeared only occasionally, Ms. Shaw says, usually at times of extreme stress. It emerged when she went to a bar for the first time after her divorce, for example, and shortly after she began work as a manicurist, putting a set of acrylic nails on a client for the first time.
Her problem was especially difficult to control because of her narrow windpipe. She avoided taking showers in the morning before work out of fear it would make her more susceptible to colds, which had led to such serious respiratory problems that she required hospitalization. She also was allergic to many of the stronger deodorants, once breaking out with such a bad rash that she couldn’t lower her arms.
Usually, dermatologists can find ways to eradicate offensive smells. They try to retard the rotting of dead skin cells, which can cause an unpleasant scent. They may prescribe topical antibiotics to reduce bacteria that decompose the skin or suggest aluminum chloride solutions, the potent ingredient in most deodorants.
Many patients blow-dry their armpits at night, paint on a solution called Drysol, then sleep with Saran Wrap under their arms so the liquid can be better absorbed into their skin. They also watch their diets because pungent chemicals from foods such as garlic and onions can be excreted through the pores. Some patients undergo surgery to sever nerves that trigger excessive sweating.
“I’ve never seen a case that wasn’t controllable,” says Joseph Bark, a former chairman of the American Academy of Dermatology’s public-information committee. He has never met Ms. Shaw.
Ms. Shaw has been examined by an internist, a dermatologist, a psychiatrist and an endocrinologist. She has cut down on spicy foods, taken Prozac to reduce anxiety and switched deodorants every six months in case she gets immune to them. To test out her latest remedies, she goes to her doctors for “smell checks.”
She always carries an extra bottle of deodorant and a change of clothes with her. And when the odor becomes too offensive, she leaves work, visits her doctor for another examination, then goes home, showers and sends all the clothes in her closet to the cleaners.
“Do you know how stressful it is to go home to take care of a problem you can’t control?” she asked, adding that she often feels “two steps lower than garbage.”
She finds the charge of poor personal hygiene especially galling because she takes such pride in her appearance. Sitting in her airy apartment, with the balcony door wide open, she shows off her red lacquered fingernails, which she keeps 1 1/2 inches long. She wears large diamond rings, one 8 1/2 carats and another with two stones totaling five carats. She keeps a glamour photo of herself on her fireplace, her long, dyed blonde hair falling in perfect curls to mink-wrapped shoulders. She owns 60 pairs of high-heeled shoes and goes to a beauty parlor twice a month.
At Citicorp, Ms. Shaw worked out a code with some friendly colleagues to let her know when the odor appeared. They would come up to her, give her a big hug and say: “Did you eat that whole big bowl of spaghetti by yourself?” or “Have you tried any new deodorants lately?”
Ms. Shaw says she appreciated the lighthearted help. But in 1992, after her transfer to a new department, her supervisors became convinced the problem was hygiene-related. They said it wasn’t their job to tell her when to take a bath.
“I wanted her to be proactive in preventing the problem from occurring, not simply reactive,” her supervisor, Sue Newport, said in a sworn declaration to the federal district court in San Francisco.
The company had given Ms. Shaw months to get medical proof that her body odor was a health problem. But because of inconclusive test results, her doctors stopped short of a diagnosis. “Although no medical condition has been found to account for the excess perspiration, I do not feel it is an issue of personal hygiene,” her doctor, Anne Bosshardt, wrote in a letter to Citicorp’s medical office.
A psychiatrist who evaluated Ms. Shaw once concluded that she probably suffered from bromhidrosis — smelly sweat — related to anxiety. He noted that her odor was strong at the beginning of the psychiatric interview, when she seemed nervous, but had vanished by the end.
Before long, Ms. Shaw’s problem worsened, and other employees complained more. Some walked by her desk, holding their noses, and one woman vomited from the stench. Ms. Shaw’s bosses reprimanded her repeatedly, suggesting she shower in the morning and wash her hair daily rather than every other day. Sometimes, she says, they told her harshly: “Go home and clean up your act.” She says her bosses sent her home three times when her friends told her she was not smelling at all. The company denies both allegations.
Meanwhile, Ms. Shaw began receiving poor job evaluations, partly because she was missing work. From 1990 through 1992, she was absent 41 days and tardy 27 times, and left early on 16 occasions, according to Citicorp attendance records submitted to the court. She blames the absences partly on the stress of her body-odor problems.
Finally, she sued, contending that the poor evaluations were due to her demands that the company accommodate her disability. Ms. Shaw’s attorney, Mr. Boynton, a 56-year-old rehabilitation counselor who had recently earned his law degree, knew the case was a long shot. “I told her the law was against us, and the facts were against us,” he says.
Under the ADA, some temporary and intermittent conditions have not been interpreted as disabilities. Moreover, the law says employees punished for legitimate reasons as well as discriminatory ones can’t collect damages or be ordered reinstated. Mr. Boynton concedes fearing that Ms. Shaw’s attendance problems would be considered a legitimate reason for the negative evaluations even if her odor were deemed a disability.
In August, a federal jury in San Francisco heard the case. Ms. Shaw, who couldn’t afford to spend money for depositions or medical witnesses, spent hours on the stand answering Citicorp lawyers’ questions, such as “Where do you put your dirty clothes?” and “Is it true you wore a skirt to work you’d scrubbed the toilet with the night before?” At first taking the latter question as a joke, she laughed and then said no.
Citicorp officials emphasized her lack of medical evidence and said her odor vanished once she got a final warning that she improve her hygiene or be fired. (Ms. Shaw, who will be leaving Citicorp in December when the company closes its San Mateo branch, says she suspects that she continued to smell but that her bosses just stopped telling her about it.)
“Oh, how I wanted her to break out with it before the jury,” says Mr. Boynton, who was making his federal-court debut. But the aroma never erupted. After three days of hearings, the jury deliberated less than two hours and sided with Citicorp.
Ernest Willmore, the jury foreman, says the jurors kept wondering whether the case was “for real.” After the trial, he says, they asked the judge how such a case had made it so far. The reason, the judge explained, was that the ADA was mostly untested. “I thought it was a waste of taxpayers’ time,” Mr. Willmore says.