Perfume Allergy Sparks $10 Million Verdict
Plaintiff Claims Employer Caused The Allergy, Then Failed = To=20 Accommodate It
By Natalie White
Published: 06-20-2005
A top-ranked Detroit radio personality recently won a $10.5 million = verdict=20 after she argued that her employer failed to accommodate her perfume = sensitivity=20 and retaliated against her for filing a complaint charging that she = wasn't being=20 paid the same as men at the station.
Erin Weber, who helped boost her country radio station's ratings as a = disc=20 jockey, claimed her career collapsed after she developed a potentially=20 life-threatening chemical sensitivity. She said the company helped = create the=20 medical disability when it forced her to broadcast for five hours from a = booth=20 filled with toxic fumes from spilled nail polish remover. The station = then=20 failed to accommodate the disability and actually exacerbated it by = failing to=20 control co-workers' use of perfumes, she contended.
In addition, Weber, 43, said the radio station fired her in = retaliation for=20 filing a complaint with the EEOC claiming she was paid less than men in=20 comparable jobs.
"She filed under the federal Equal Pay Act and was victorious," said = Weber's=20 attorney, Raymond Sterling. "She was being paid two to three times less = than men=20 in comparable jobs at the station." He said she was paid $66,000 a year, = compared to $200,000 a year for male colleagues.
Defense attorney Daniel Tukel did not return requests for comment. =
One of the frustrating aspects of the case, Sterling said, has been = media=20 coverage depicting the disability as frivolous - a perception he worried = jurors=20 might adopt.
To avoid this and convince jurors of the seriousness of her claims, = Sterling=20 lined up witnesses and evidence to demonstrate the gravity of the = disability. He=20 said the defense tried to "make her look crazy" but that the medical = testimony=20 supported her contentions.
Three doctors testified to the condition, outlining how Weber had to = take=20 months off at a time when she lost her voice after being exposed to = Tresor=20 perfume worn by a co-worker.
"Exposure would create burning and swollen vocal chords and rob her = of her=20 voice. When you're a radio host this is a very serious problem, and she = would be=20 confined to voice rest, in one instance for three months," Sterling = said.
A six-woman jury in U.S. District Court in Detroit deliberated for = eight days=20 before deciding in favor of Weber. They issued a verdict that included = $7=20 million in punitive damages, $2 million for mental anguish and $1.5 = million for=20 lost income.
Sterling argued at trial that she was fired in 2001 after she filed a = complaint with the EEOC and after she complained about exposure to = co-workers'=20 Tresor perfume, which is described as a sensual mix of lilac and roses. = Weber=20 claimed its chemical base made her sick and that exposure could = potentially=20 cause her airways to swell into life-threatening anaphylactic shock, = Sterling=20 said. He said Weber is not sensitive to natural odors such as flower = scents but=20 to the chemicals used in mixing the perfumes.
The company said it tried to accommodate the disability, but Weber = claimed it=20 did little to stop one particular co-worker from purposefully exposing = her and=20 setting off severe allergic reactions. The radio station denied = wrong-doing at=20 trial.
A Toxic Environment
Weber developed the disability in 1999, Sterling said. He said two = large=20 bottles of nail polish remover spilled in the broadcasting booth during = a=20 morning show about pedicures. The smell was so bad that Weber kept = leaving the=20 booth to get fresh air. She asked if another broadcasting booth could be = used=20 but radio officials refused. Despite her complaints, Sterling said she = was=20 ordered to return to the booth and broadcast for five hours.
"It was an accidental spill of caustic and toxic chemicals in the = broadcast=20 booth," said Sterling. "She wanted to switch to studio B, but they = refused.=20 Management ordered her to get back in there with these nauseating, = caustic=20 chemicals. When she went to the doctor's, they found she had suffered = from=20 chemical burns. It had burned everything in her breathing apparatus. " =
Her doctors, who testified in court that she suffers from a = potentially=20 life-threatening disability, said her airways could close up with = exposure. She=20 carries an Epi-pen in case of such an emergency.
"This is a disability that can be life threatening," said Sterling. = "After=20 the initial exposure she developed an allergic condition triggered by = chemical=20 inhalation that could cause her airways to swell, causing asphyxiation = and=20 death."
Sterling said that Weber has been unable to get a job in radio = broadcasting=20 since her firing and blamed Inifinity Broadcasting, which owns the = station, for=20 blacklisting her in the industry, which the company denies. She has had = to turn=20 to other markets and now works as a free-lance voiceover specialist. One = of her=20 most notable assignments is the voice on Otis elevators announcing the = floors.=20
Failure To Accommodate
Weber said the radio station did little to accommodate her = disability.=20 Despite her repeated complaints, she said one co-worker seemed to be=20 deliberately exposing her to Tresor.
"We had an independent witness to verify that [the co-worker] wore = perfume at=20 the [station's country music] Hoedown event," said Sterling. He said = that Weber=20 also believed that the same co-worker sprayed perfume at the station = before her=20 shifts.
Although the station established a policy in which the co-worker in = question=20 was supposed to check in with management daily to make sure she was not = wearing=20 Tresor, Sterling said that policy was not enforced.
"They claimed they had a management designated 'sniffer' whom the = [co-worker]=20 was supposed to check in with every day. I showed this was a farce. But = [the=20 station's claim] did verify that they didn't trust [the co-worker] due = to her=20 defiance," Sterling said.
He said Weber wanted to explain her disability to colleagues and = wanted to=20 have certain areas designated as no-perfume zones, but management would = not=20 agree.
"Erin at least wanted the opportunity to speak with people about the=20 seriousness of the issue, but management refused to let her," Sterling = said.=20
She also asked if she could restrict access to the broadcasting = studio during=20 her shift.
"They didn't restrict that at all and actually disciplined her when = she=20 created a system that would notify her when someone came in behind her = while she=20 was on the air," he said.
Sterling said that although the station talked about changing Weber's = shift=20 to avoid exposure, nothing was done about it. Officials told her not to = talk to=20 co-workers about perfume and that they would take care of it. However, = she kept=20 being exposed to the offending perfume and had to take several leaves = because of=20 resulting sickness.
"There are personality problems in the workplace, but it is up to = management=20 to make sure people are safe, and they didn't," he said. "They fired her = for=20 needing these accommodations for a problem that they created in the = first place.=20 They decided it was just easier to push her away that to really deal = with the=20 situation."
Sterling said Weber was an award-winning DJ who helped make the = station one=20 of the top Detroit stations. She was nominated five times for the = nationally=20 prestigious Country Music Association's major market personality of the = year.=20
At trial, the radio station said Weber was fired because of her = inability to=20 do fulfill her job responsibilities, including not being able work a = weekend=20 just before she was fired.
"I showed that the only reason she could not do the shift was due to = her=20 re-exposure to coworkers' perfume two days before with the resultant = swollen=20 vocal cords and voice loss, as confirmed by a doctor," Sterling said. He = said=20 she notified the station of the voice loss and kept them apprised of her = medical=20 condition.
"They wrote her back saying we'll see you Monday, and then they fired = her on=20 Monday when she came in," he said.
Sterling argued that Weber was not shirking her duties, although she = did have=20 to take several unpaid leaves because of damage to her vocal cords.
"She had to take four medical leaves of varying duration," Sterling = said.=20 "She had not missed a day of work for seven months before."
Karen Mateo, a spokeswoman for Infinity, said, "We are disappointed = in the=20 verdict and intend to make all the appropriate post-trial motions."
Plaintiff's Attorney: Raymond J. Sterling of Driggers, Schultz in = Troy,=20 Mich.
Defendant's Attorney: Daniel B. Tukel of Butzel Long in = Detroit.
The Case: Weber v. Infinity Broadcasting Corporation Inc. = dba=20 WYCD-FM; May 23, 2005; U.S. District Court for the Eastern District = of=20 Michigan; Judge George Caram Steeh.
Questions or comments can be directed to the features editor = at:=20 bill.ibelle@lawyersweekly.com
=C2=A9 2005 Lawyers Weekly Inc., All Rights Reserved.
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