Excuse Me . . . I “Tooted”: Flatulance and the ADA

My four-year-old spent the vast majority of the weekend publically announcing (louder than her grandparents and I would have preferred) “excuse me I tooted” every time she passed gas—which considering her petite frame and refusal to eat a vast majority of foods, occurred much more often than I would have expected possible. Despite her well developed manners I tried to explain the private nature of this type of announcement, in hopes of combating the announcement in later years. While this is not something I would normally share in a public forum, its relationship to a recent employment lawsuit is too serendipitous to not tie the two incidents together. So, now I’ll get to the employment law issue.

On September 11, 2015, Louann Clem filed suit in federal court in New Jersey alleging that Case Pork Roll Company violated the ADA and the New Jersey Law Against Discrimination after the Company terminated her husband’s employment. Louann Clem was also employed by Case Pork Roll Company and served as the Administrative Assistant to the Comptroller, her husband Richard Clem. In October 2010, Mr. Clem had gastric bypass surgery and as a result suffered the side effect of “extreme gas” and “uncontrollable diarrhea.” By 2013, the symptoms had worsened and caused Ms. Clem significant disruption in the workplace (one would assume this also caused Mr. Clem significant disruption, but that is not alleged in the Complaint).

Case Pork Roll Company’s President, Thomas Dolan allegedly complained about the side effects and told Mr. Clem that he needed to work from home, and that the office environment smelled as a result of Mr. Clem’s symptoms. Ms. Clem alleges that as the symptoms worsened, Mr. Dolan and the company’s owner harassed her husband making comments such as: “We have to do something about Rich,” “This can’t go on,” “Why is Rich having these side effects,” “We cannot run an office and have visitors with the odor in the office.” Ultimately, Mr. Clem was terminated on February 28, 2014. That same date, Ms. Clem allegedly resigned “because of the harassment and discrimination her husband faced as a result of his disability and the resulting symptoms.” Accordingly, she alleges that the Company created a hostile work environment and constructively terminated her employment.

In statements from Ms. Clem’s attorney, the “disability” at issue is not the uncontrollable passing of gas, but obesity (which resulted in the need for the gastric bypass surgery). While we often recommend to business owners that they create thorough job descriptions that set forth the job duties and responsibilities of their employees, we don’t often see job descriptions that include “the ability to control bodily function.” It will be interesting to see how this case progresses and whether the Court accepts Ms. Clem’s arguments; further, one would assume a similar lawsuit by Mr. Clem will be not far behind. If your company is dealing with a difficult accommodation issue, contact a member of Verrill Dana’s Labor & Employment practice group to further discuss best practices.