Tuesday, February 25, 2014

Body Odor Fails to Establish Pretext

Hannoon v. Fawn Engineering Corp. out of the 8th Circuit starts off like a pretty routine discrimination case. The plaintiff claims he was fired based on his race and national origin. The employer counters with a legitimate non-discriminatory reason, here his poor performance. And the burden shifts to the employee to establish that the proffered rationale was pretext.

Here's where things get interesting. The Court turns to the issue of . . . body odor?
First, [the employee] argues that the confrontation concerning body odor demonstrates animus concerning race or national origin. We disagree. Because the comments regarding body odor did not suggest any reference to race or national origin, we are unwilling to hold such comments reasonably capable of supporting an inference of discriminatory intent. 
[The employee] attempts to bolster his argument on this point by noting that Wayne did not need to confront him, but rather could have referred him to Fawn's employee medical assistance program. As an initial matter, while we understand that comments from a supervisor to a subordinate concerning the delicate issue of body odor are, no doubt, distressing to all involved, we do not believe that a reasonable jury could find such comments to be race-based, inherently discriminatory, or the type of matter that requires referral to a medical assistance program. Further, there is no evidence that [the employee's] body odor problem was a medical issue rather than merely an issue of personal hygiene.
Apparently, complaints about body odor do not establish pretext. The 8th Circuit affirmed the district court's grant of summary judgment for the employer.

HT: Thanks to my colleague Janine Gismondi for alerting me to this case.