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Is “Electro-Sensitivity” a Disability?

Posted by Frank Steinberg | May 27, 2008 | 0 Comments

Businesses have to deal with all manner of disabilities in their employees in a way that complies with the Americans with Disabilities Act and similar state legislation such as the New Jersey Law Against Discrimination.  We've previously posted, for instance, on employees who claim to be allergic to perfume.  Litigation over that issue has gone as far as the U.S. Court of Appeals for the Third Circuit. 

Now there's a hint of a "sensitivity" — it's not clear whether doctors will call it an allergy — to electrical and radio waves.  For more information, here's a link to an electro-sensitivity advocacy group.

According to KOB.com, "a group in Santa Fe says the city is discriminating against them because they say that they're allergic to the wireless Internet signal. And now they want Wi-Fi banned from public buildings."  There's no word yet from Santa Fe's attorney of a recommendation on how to handle the complaint, but a City Councilor had a point when he noted that the city is already saturated with wireless signals.

Now, perfume in the workplace is one thing, desirable to some but certainly not essential to conducting  business.  However, American business runs on electronic devices: computers, cell phones, Blackberries, and the like.  They're everywhere.  Business cannot function without them.  Might a court be persuaded to rule that electro-sensitivity is a disability?  Perhaps.  Stranger things have happened.   If so, how could a business accommodate the disabled worker?  In most modern office settings there's no practical way to avoid exposure to electrical equipment and radio waves.

Asa result, it's unlikely that circumstances will allow a court to finesse the issue as the Third Circuit did with perfume sensitivity in Kaufman v. GMAC Mortgage.  In that case the court assumed, but did not decide, that perfume sensitivity was a disability.  It ruled against the plaintiff because it found that GMAC had reasonably accommodated the disability (if it was a disability).  Because of the pervasiveness of electrical and radio waves, with electro-sensitivity an accommodation would be immensely difficult. 

Of course, there's always the possibility of a legislative solution, but Congress has not demonstrated a willingness to scale back the scope of the ADA by amending  legislation.

In short, we are not aware of any large-scale movement by electro-sensitives to push this issue in the courts, but it may be coming.  Business advocacy groups may want to start thinking about how they will react if the issue comes to the fore.

About the Author

Frank Steinberg

Frank is the founder and principal of Steinberg Law, LLC. A Jersey boy born and bred, he focuses on employment litigation and counseling, business litigation,  and aviation law. Following law school and a clerkship in the federal district court Frank spent his early career with large litigation ...

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