Is it illegal to smell bad?

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

Local nuisance laws legislate against interfering with other people’s “use and enjoyment” of a place. And individual facilities or entities, including government offices, can make their own rules about how to handle bad-smelling people. The legal system is then used to argue about whether those rules comply with existing law and whether the rules are being applied in a just way.

Public buildings, meaning those operated by government, such as libraries and post offices differ from private businesses, such as malls or individual stores. Under the Constitution, these “government actors” are required to treat people in certain ways that are enumerated in the Bill of Rights and subsequent constitutional amendments as interpreted by cases analyzing those parts of the Constitution. That body of law is known as civil rights law and is supplemented by federal civil rights statutes which further regulate the treatment of citizens by government actors.

It is fundamental to a democratic government that citizens have access to government. When that access involves being physically present and the government wants to limit anything about the way access is provided, those limits have to be made within the scope of civil rights law. This kind of limit, specifically regarding the way people smell, has been examined by cases in which public libraries tried to keep bad smelling people out of their buildings.

The flagship case of precedent for bad grooming in public libraries is Kreimer v. Morristown [1] in which the federal Third Circuit Court of Appeals upheld a library rule that said “Patrons whose bodily hygiene is offensive so as to constitute a nuisance to other persons shall be required to leave the building.”[ii] Kreimer, a homeless library patron barred by that rule from entering the library, asserted in court that the rule violated his First Amendment rights to use the public library for reading, writing and thinking. But the court held that “this rule prohibits one patron from unreasonably interfering with other patrons’ use and enjoyment of the Library; it further promotes the Library’s interest in maintaining its facilities in a sanitary and attractive condition.”[iii]

Subsequent courts have also upheld policies excluding unclean people from accessing public libraries. But in 2001, a District of Columbia court[iv] found a library policy to be unconstitutionally vague because it listed as a minor offense, “Conduct or personal condition objectionable to other persons using the Library’s facilities or which interfere with the orderly provision of library services….[including] objectionable appearance (barefooted, bare-chested, body odor, filthy clothing, etc…).”

 

The court explained that having a few examples of what a person might consider to be objectionable followed by “etc.” simply did not set forth a clear limit on what would be tolerated. That court also said the library rule violated Fourteenth Amendment due process rights because it didn’t provide enough information for patrons to know in advance whether their appearance would be acceptable, especially because any employee who happened to be watching the door could make the decision about acceptable appearance according to his or her discretion at that moment. Clearly, just because there is a policy about body odor doesn’t mean it is a legal policy.

Libraries are not the only public buildings where a person’s odor or general hygiene might interfere with the comfort of others. Courts, post offices, and transportation facilities are other examples to consider. Courts usually have various decorum rules requiring that behavior in court not distract from the trial or hearing and declaring that the court is owed respect. Judges can use their own discretion to interpret those rules and have been known to remove trial participants and even lawyers for what the judge has deemed inappropriate dress or grooming.[v]

One can reason by comparison that the amount of time spent in a post office or on a bus is much shorter than in a library or courtroom and so the odor problem would be less significant in those places. It could also be said that because access to the court for the sake of asserting or defending one’s rights is required by law, a person simply has to be allowed there in whatever condition he appears. But those kinds of analysis are simply conjectures; a jury might not agree with them. Since case law has declared it acceptable for public libraries to limit access based on hygiene, there is a foundation for the same kind of limitation in other public buildings.


[i] Kreimer v. Morristown, 958 F.2d 1242 (3d Cir., 1992).

[ii] Id. at 1264.

[iii] Id.

[iv] Armstrong v. D.C. Public Library, 154 F. Supp. 2d 67 (D.C. Cir. 2001).

[v] 17 AM. JUR. 2d Contempt §56 (updated to 2007).

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