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When the US was founded, is it likely our founding fathers could have anticipated this lawsuit – Dolan v. Case Pork Roll Co.?

Perhaps.

Ben Franklin once wrote a letter called Fart Proudly. Franklin was living abroad, serving as Ambassador to France. He opined the Royal Academy of Brussels called for too many scientific papers that focused only on the impractical. In that context, Franklin’s essay argued that more research should be done to improve the odor of human flatulence.

I have perused your late mathematical Prize Question, proposed in lieu of one in Natural Philosophy, for the ensuing year…Permit me then humbly to propose one of that sort for your consideration, and through you, if you approve it, for the serious Enquiry of learned Physicians, Chemists, &c. of this enlightened Age. It is universally well known, that in digesting our common food, there is created or produced in the bowels of human creatures, a great quantity of wind. That the permitting this air to escape and mix with the atmosphere, is usually offensive to the company, from the fetid smell that accompanies it. That all well-bred people therefore, to avoid giving such offence, forcibly restrain the efforts of nature to discharge that wind.

From Wikipedia:

The essay goes on to discuss the way different foods affect the odor of flatulence and to propose scientific testing of farting. Franklin also suggests that scientists work to develop a drug, “holesome and not disagreeable”, which can be mixed with “common Food or Sauces” with the effect of rendering flatulence “not only inoffensive, but agreeable as Perfumes”. The essay ends with a pun saying that compared to the practical applications of this discussion, other sciences are “scarcely worth a FART-HING.”

Franklin thought the Royal Academy was a pompous collection of windbags. His letter was intended to draw attention to their pretentiousness; not to stimulate a new field of inquiry.

Back to the more mundane 21st Century.

Dolan v. Case Pork Roll Co.

Richard Clem worked as comptroller at Case Pork Roll Co. He weighed as much as 420 pounds. He then had gastric bypass surgery. Post-op he suffered from constant flatulence as a side effect of the surgery. According to the lawsuit, Clem experiences “extreme gas and uncontrollable diarrhea” that made him have to “sit on a toilet 24 hours a day.”

His boss had enough of this. Thomas Dolan, the president of Case, claims that Mr. Clem’s seeming inability to control his flatulence and the ensuing aroma—was obviating the scent of pork rolling.

According to the lawsuit, the boss allegedly told the employee’s wife (also an employee of the company) that “This can’t go on. We can’t run an office and have visitors with the odor in the office,” and “We have to do something about Rich.”

So, on February 28, 2014 [the employee] let out his last fart on Case territory—he was fired. The same day his wife quit Case due to all the negativity directed toward her husband. And they lawyered up.

The lawsuit was filed as a violation of the American with Disabilities Act. The question to be resolved is whether the flatulence was a side effect of a medically necessary procedure to curb obesity and its complications. If so, is obesity and its treatment covered under the American with Disabilities Act? And, is there a reasonable accommodation the employer can make so the employee could have functioned?

Apparently, technology has come to the rescue. Shreddies is a flatulence filtering underwear. Activated charcoal cloth is built into the construct. Shreddies’ promotional web site has a diagram showing flatulent odors traversing the activated charcoal cloth, emerging as “odour-free air.” Will Shreddies be considered a “reasonable accommodation” which could have allowed the plaintiff to continue as an employee?

What’s my point with this? There are times an employer will have little choice but to terminate an employee. Before acting impulsively, go through a quick analysis as to whether the firing may lead to a lawsuit including an allegation of discrimination under the American with Disabilities Act. Other analyses need to be performed at the same time. There are many ways to allege discrimination. Run it by your lawyer – hopefully someone skilled in the nuances of employment law.

I wonder if Shreddies is the answer to Ben Franklin’s original call to action. A jury may soon decide.