Can you legally fire an employee for extreme gas?


My readers are the best!

On Friday, I received two emails within 15 minutes of one another, encouraging me to blog about this story. Kenneth Hilario at the Philadelphia Business Journal writes about an employee of an NJ company who is suing her employer. What makes this story special? The company allegedly fired the spouse’s husband, the company’s controller, because of his “extreme gas and uncontrollable diarrhea.”

Wait a sec. How did the company harm the plaintiff?

You can view a copy of the complaint here.

The plaintiff claims violations of the Americans with Disabilities Act and the New Jersey Law Against Discrimination. The theory goes something like this: Both the state and federal laws prohibit an employer from discriminating against an employee with a disability. It also prevents associational discrimination, which I addressed in a blog post earlier this year. In a nutshell, you can’t discriminate against a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.

In this particular case, the plaintiff’s husband suffered from obesity, which the plaintiff claims is a disability. The husband undergoes gastric bypass surgery, as a result of which he suffers from “extreme gas and uncontrollable diarrhea.” The company then gives the plaintiff and her husband a hard time about the husband’s side effects. Husband is then fired; the complaint doesn’t say why. Plaintiff then quits that same day, claiming it’s because of the harassment and discrimination her husband faced as a result of his disability and side effects.

Rather than focus on the plaintiff, I’m pretty sure most of you are wondering whether the company can legally fired an employee with bad gas. So…

Can the company fire the plaintiff’s spouse?

Notably, the husband, the one with the supposed disability, hasn’t sued (yet). Was the company within its rights to fire him? Oh, there are so many issues here:

  • Is obesity a disability? Unclear.
  • What if the gastric bypass “cured” the obesity? He would still have a record of an impairment. Discrimination on that basis is unlawful.
  • What is the duty to accommodate? If obesity is a disability, and the employee requests a reasonable accommodation, then an employer must provide one (if available), unless doing so would create undue hardship. The duty to accommodate extends to a record of an impairment too.
  • Is there undue hardship? Good question. Actually, that’s a very fact-specific question. Certainly, really bad gas could create productivity issues for co-workers. But, maybe improved ventilation, re-locating the employee, or telecommuting could all be reasonable? It really depends.

Oh, I do enjoy being an employment lawyer.

Image Credit: By CDC [Public domain], via Wikimedia Commons
  • Nancy

    I can certainly see how working with someone who has ‘extreme gas’ would not be fun. However, from an HR and Safety standpoint, I am more concerned about the uncontrollable diarrhea. OSHA has certain safety standards concerning exposure to bodily fluids and depending on the extent of the problem, the company could have been faced with bringing in folks in bio-hazard suits to do clean-up duty on a regular basis. Sounds like one of those situations where there is not an easy solution for either side.

  • GrooveMeister

    Truly an explosive issue.

  • Merlynn

    I have never encountered this specific issue, but I did have an issue where a young woman had body order so severe that all of the employees in her group informed their manager that they could not work, because the smell was so severe.. While there were no ADA concerns applicable, there were culture issues that cold hAve been applicable. This employee’s manager was fairly new and did not know how to address this issue–so, it was put into my “lap” (boring my job is not =). Anyway, the conversation was actually not as difficult as I expected. She was not embarrassed, and told me she came from a small village and water was often scarce, so bathing was not something the community did frequently. As a resutl of her “past experience”, she only bathed/showered every 3 to 4 weeks, sometimes more, occasionally less (but “less” that was rare). She had no idea this was impacting anyone and agreed to shower daily. So, in this instance the issue was resolved.

    As Nancy stated, I would have similar concerns related OSHA and bodily fluids exposure to other employees. ADA issues are so “slippery, that I would have tried some type of accommodation before just terminating the employee (i.e., telecommunicating, even temporarily utilizing amother office or if unavailable, possibly using a conference for a while before terminating the employee, etc.) I would wonder if the empliyee’s company had a progressive discipline policy, and if the policy was followed?

    However, this issue is about the spouse who resigned and her “undo hardship and hostile environment” claim. It is possible that her husband’s “gas issues” were discussed with her by HR prior to her resignation. While the circumstances regarding what occurred when she resigned are not stated, I would not be surprised ito discover that she went to HR asking/demanding answers as to why would the company terminated her husband for something he was unable to control . Based on what was said by HR–especially if it was less than tactful, she could then very well have a case/claim, possibly a very stong case/claim.