Jottings By An Employer's Lawyer

Tuesday, May 24, 2005

Perfume Allergy Worth 10 Million? In Detroit It Was

Erin Weber, formerly a DJ at Detroit country station WYCD-FM, complained that a co-employee wearing Tresor, made by Lancome, not only made her lose her voice but one time she "felt an electric shock quell through my entire body." According to Weber, the perfume was a pre-meditated attack by another female DJ, Linda Lee, co-host of the afternoon Edwards and Lee show. In an email to the station management, Weber claimed Lee intentionally walked by her at the Downtown Detroit Hoedown -- a popular annual country music festival. "Linda nearly brushed past me and a cloud of perfume trailed behind me," Weber wrote.

"To have brought the perfume with her suggests forward planning. This appears to be a premeditated attack which was entirely unprovoked by me in anyway," Weber wroteHer employer, Infinity Broadcasting said it asked the offending employee to stop wearing the perfume, changed their schedules so they did not interact and ultimately fired Weber when she did not come to work. The AP has a pretty bare bones story, see here, that has been widely circulated but the Detroit Free Press has more details in Radio DJ wins $10.6 million in stink over perfume.

A pre-verdict story also in the Free Press, Jury deliberates radio personality's lawsuit, said Weber was forced to work in a studio where a guest on an earlier show had spilled acetone while giving another host a manicure. There was also evidence that even though Weber's show was a ratings success, she made only $66,000 a year while males earned 2 or 3 times as much. Weber complained about the pay issue to the EEOC.

All of that apparently did not set well with the all female jury since according to the Free Press story, it awarded "$7 million in punitive damages, $2 million in mental anguish and emotional distress and $1.6 million for past and future compensation."

While the "perfume allergy" makes for good copy, including my favorite headline from a South African website, DJ wins $10m in smelly saga, one wonders if it will even stand up as a disability claim. My guess is it was the other aspects of the employer's conduct that set the jury off into an MDV frenzy; it may have been the unequal pay or the retaliation claim that Weber made after she filed a complaint with the EEOC. Even then the jury twice sent notes to the judge saying they were having difficulty reaching a decision. Given the numbers, my guess the fights were over damages not liability, and if I am right there was someone on the jury who was pressing for an amazingly high number. (Not that $10 million isn't!)

One other thing about the headlines accompanying the AP story, most refer to a $10 million judgment. By all accounts all that has happened is that a jury verdict has been returned. A verdict is only a step (albeit in this case a giant one) to a judgment, which must either be appealed or paid. But before a verdict becomes a judgment, the Court must apply the law to it, which in this case might very well reduce much of the award by application of the $300,000 caps on compensatory and punitive damages if the claim was only under the ADA.

In any event as Infinity Broadcasting, the owner of the station, was saying, the judgment, when there actually is one -- "will be appealed". Nevertheless the verdict is an impressive reminder of how serious some juries can be when it comes to meting out punishment to an employer for their perceived wrongdoing.


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