Have you been in the situation where, for hiring purposes, you have to produce a urine sample as part of drug testing? Or been attempting to do what you need to do in a football stadium bathroom at halftime, with a line of impatient fans who having been drinking beer for hours pressed up behind you -- you hear their menacing mutterings and freeze up?
The pressure on you is great, make no mistake about it. But some unfortunate folks get anxious enough that their well springs dry up and they just can’t hack it. Indeed, there may be 17,000,000 Americans suffering from this.
“Paruresis” is what this syndrome is called – also known as “shy bladder” or “bashful bladder.” It is, simply, a bladder that has performance anxiety when the pressure is on, whether in a public situation or with others around. It’s a bummer, to be sure, but is it a disability for purposes of the ADA if you are not hired because you can’t show a clean drug test because of it? What “major life activity” is substantially limited by possessing a shy bladder – urinating in public? Drinking beer at a Giants game? Has anyone even considered the question?
I am pleased to say that the EEOC has, indeed, spent some time considering the issue, and has recently published an informal opinion letter from one of its counsel as to “whether paruresis is a disability under the Americans with Disabilities Act (ADA), as amended by the ADA Amendments Act of 2008 (ADAAA), and under the regulations implementing the ADAAA published by the U.S. Equal Employment Opportunity Commission (EEOC) on March 25, 2011.”
The EEOC, noting that paruresis is, in fact, considered an anxiety disorder, stated that affected individuals may be the subject of an adverse employment action if they cannot take the standard urine test for the detection of illegal drug use, and are refused alternative tests.
Is Paruresis a “Disability?
As to whether it is a “disability,” one has to consider whether it is a physical or mental impairment that substantially limits one or more major life activities (or if there is a record of such impairment) – to which the applicant or employee may be entitled to a reasonable accommodation. (Under the “regarded as” test – where the employer takes an adverse action because of an actual or perceived impairment that is not both transitory and minor, no accommodation is required).
Under the 2008 amendments, a “major life activity” includes major bodily functions, such as bladder and brain functions, and functions of the neurological and genitourinary systems. The EEOC stated that under the prevailing law and regulations, “substantially limits” is to be construed broadly and expansively, and now “requires a lower degree of functional limitation” than before -- an impairment does not need to prevent or severely or significantly restrict a major life activity to be considered “substantially limiting.”
“Therefore, the determination of whether an individual’s paruresis substantially limits a major life activity is based on the limitations imposed by the condition when its symptoms are present (disregarding any mitigating measures that might limit or eliminate the symptoms).”
There are alternatives to urine testing for determining illegal drug use – hair, saliva, or a patch test may be used. But because, as noted above, under the “regarded as” test an applicant or employee is not entitled to a reasonable accommodation, for an applicant or employee to be entitled to this alternate testing, he/she must show that the paruresis “constitutes either an actual or record of disability.” Moreover, an employer may claim that an alternative drug test would cause an “undue hardship,” which, the EEOC concluded, “may include whether an alternative test is an effective means of determining current illegal use of drugs.”
The EEOC gives no definitive or clear answer to the question posed. Paruresis is not a designated “per se” disability under the law, but, says the EEOC, “[n]o negative inference should be drawn” from this, So to be entitled to a reasonable accommodation, a suffering individual must show an actual or record of disability. What this means is not altogether clear since the “bashful bladder” syndrome seems, to this medical layperson at least, to substantially impair a major life activity only when the urine testing is conducted. No testing --- no “bashful bladder” symptoms.
Indeed, by definition, a bladder is bashful only when it is required to perform when there are other people around. (Although in some cases a person is able urinate only through the process of catheterization. In such a severe case, a person would seem more likely to be able to show a substantial impairment of a major life activity, at least according to the EEOC analysis).
Stay tuned because we will no doubt see such a fact situation hit the courts soon enough and learn more.
In any event, if you have a bashful bladder, at a minimum don’t drink beer at football games.