Hygiene Policy: Good Policy Solution or a Big Can of (Smelly) Worms?

Smelly Employee Fuels Hygiene Policy reads the headline of the Associated Press story that is sure to receive widespread attention and become the target of late-night talk show humor. Enacting a new “you must smell nice at work” commandment was one Tennessee town’s solution to a problem that has plagued nearly every single one of us at some point in our lives: what to do about a person whose body odor makes it difficult to maintain the required level of proximity? But is passing a new law going to resolve the problem, or simply affect how harshly the offender is treated?

According to reports, a Murfreesboro, Tennessee city worker has had a problem with body odor for years. (The employee, department for whom he works, and the suspected cause of the odor have not been identified, out of an attempt to spare the employee further embarrassment, but at the point of having one’s personal hygiene articles the subject of a national wire service article, it’s probably too late to worry about minimizing someone’s embarrassment. As Kobe Bryant’s accuser can surely attest, it’s only a matter of time before everyone with an Internet connection can find out exactly who this person is.) Despite repeated efforts at discussing the issue with the employee and attempting short-term solutions, the problem (that is, the odor) simply refused to go away, and it was to the point of making other employees nauseated. (See The Tennessean article.)

Out of solutions, the city determined that passing a new city policy was the only thing that could be done at this point, according to city attorney Susan Emery McGannon. The policy, enacted by the Murfreesboro City Council last Thursday, supplements a grooming policy that merely required employees to dress professionally according to their job description. The new policy reads as follows:

No employee shall have an odor generally offensive to others when reporting to work. An offensive body odor may result from a lack of good hygiene, from an excessive application of a fragrant aftershave or cologne or from other cause

Those who violate the policy risk disciplinary actions ranging from reprimands to one-day suspensions.

One obvious question is how someone will determine the rule has been violated. According to City Councilman Toby Gilley, the standard would be the same one a U.S. Supreme Court justice used to identify pornography. “We’ll know it when we see it” was Justice Potter Stewart’s standard and Murfreesboro’s will be “We’ll know it when we smell it.” So much for a policy capable of objective enforcement! And the policy won’t be applicable to everyone: odors stemming from medical conditions. will require department heads to handle the situation according to the federal Americans with Disabilities Act, which would prevent discrimination and require reasonable qualification to those who legally qualify as disabled. (See our site’s disability discrimination page for additional information on this topic.)

As city attorney McGannon pointed out, “It’s sad that this had to get legalistic. Things like this gives [sic] lawyers a bad rap when we have to make a rule for everything.” Obviously, the city considered itself at wits end before taking this step, and perhaps there is nothing else that could be done in Murfreesboro to deal with this particular employee. It’s very hard to analyze the decision without knowing more about the employee’s individual situation. If the odor was due to smelly cologne, then perhaps a “fragrance-free” policy, without reference to hygiene, would be sufficient. Many cities and private entities, in an effort to accommodate those with environmental allergies, breathing disorders, or multiple chemical sensitivity (MCD), have enacted “fragrance-free” policies. For more information about fragrance-free policies, see the Fragranced Products Information Network’s web site.) And if the situation is caused by a medical problem, then the policy will not apply (and even if it did, disciplining the employee is not a reasonable solution to a problem over which the employee may have little or no control.)

At this point, what’s left is how to deal with an employee who, after repeated conversations specifically discussing the problem, refuses to make necessary personal hygiene changes. (This will mostly likely rarely occur: most people are so embarrassed after one conversation that they take the appropriate steps to remedy the problem (of which they may have been unaware). Hopefully, they do not remedy the problem by going overboard in the other direction with excessive fragrance.) In this situation, however, it appears that most employers would already have tools to deal with the employee, whether it’s transferring the employee where he or she has less contact with the public and/or offended coworkers; invoking discipline under the existing grooming policy; or taking action against insubordination for refusal to comply with previous dictates concerning hygiene.

Creating an additional policy is a action that will hopefully not become a trend in other public and private workplaces. For one, the discretion involved in such policies gives coworkers and supervisors a weapon to humiliate and embarrass unpopular employees, and invites intolerance, for example, of workers whose national origin and/or cultural backgrounds accept a different level of body odor than 21st century America finds permissible. Moreover, many more violations are likely to be inadvertent or involuntary than deliberate, which means the policy is likely to be invoked more often than is necessary and/or just. This problem is one that is always difficult and delicate to address, whether it’s in the workplace or among friends and family, but trying to legislate against it and punish violators is no real solution.

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Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.