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Health See other Health Articles Title: Bladder Disability Issues Medscape... Today we will look at three recent cases involving bladder disabilities. In Akerson v. Pritzker, the federal district court in Massachusetts let a case go forward in which the plaintiff alleged she was fired because her interstitial cystitis made frequent bathroom breaks necessary. In Conner v. Iowa Methodist Hospital, a prospective employee with a "shy bladder" is suing a hospital because she could not provide a urine drug sample under the conditions required by the hospital. In EEOC v. K-Mart, the Equal Employment Opportunity Commission is suing K-Mart when it did not accommodate a dialysis patient who could not provide a urine sample for a drug test. United States: Bathroom Break Every 20 Minutes: Is This A Disability? (12/24/13) A federal court in Massachusetts was faced with the case of a Census Bureau employee whose inflammatory bladder disease, known as "interstitial cystitis" required her to use the bathroom as often as every 20 minutes when she was under stress. She sought frequent bathroom breaks as an accommodation. The employee claimed that while she was in the restroom her supervisor would call her on her desk phone, would send another employee into the bathroom looking for her, and would "shake his head disapprovingly" when she returned to her desk. After a two week medical leave, the employee's desk had been moved and her duties reassigned. Three days later, she was terminated. She sued under the ADA and The Rehabilitation Act, and on the employer's motion for summary judgment the Court held that under the 2008 ADA amendments ("ADAA") there was a genuine issue of fact as to whether she was disabled since "a reasonable jury could find that she is substantially limited in her ability to work." Similarly, the Court held that "a reasonable jury could conclude that [her] request for accommodation became the deciding factor in her termination decision," despite her performance deficiencies on the job. Finally, the Court held that "a reasonable jury could conclude that Defendant, upon learning of Plaintiff's disability and/or request for bathroom accommodations, artificially inflated the severity of these [performance] deficiencies as pretext for firing her based on her disability." http://www.mondaq.com/unitedstates/x/282926/Discrimination+Disability+Sexual+Harassment/Bathroom+Break+Every+20+Minutes+Is+This+A+Disability From Lexology (12/26/13) Did an employer inflate its worker’s performance deficiencies as a pretext for disability bias? Mass. Court says maybe On November 4, 2013, in Akerson v. Pritzker, the U.S. District Court for the District of Massachusetts rejected the race discrimination and Equal Pay Act claims brought by a former employee of the U.S. Census Bureau’s, but allowed her Rehabilitation Act claims to proceed to trial. The plaintiff in the case, Bonnie Akerson, had been employed as a “partnership specialist” for the U.S. Census Bureau where she educated organizations about the 2010 census and encouraged them to enter into partnership agreements with the Census Bureau. Applicants for the position could apply for one or more of four salary grade levels: GS-7, GS-9, GS-11, and GS-12. Akerson applied for the position at the GS-9 pay grade and was paid accordingly. Her male colleague applied for the position at the GS-11 pay grade and was paid at a higher level although both levels involved substantially the same job responsibilities. Akerson suffered from interstitial cystitis, an inflammatory bladder disease which, during flare- ups, caused her to use the restroom frequently—as often as every twenty minutes. Although her supervisors were not aware of Akerson’s condition until she disclosed it to one of them nine months into her employment, she claimed that one of her supervisors would intentionally call her on the phone when she was in the restroom, and when she did not answer the phone he would send a co-worker in the restroom after her, and would then “shake his head disapprovingly” when she returned. Akerson received an “acceptable” performance review for her first and only performance evaluation. The review did not mention Akerson’s bathroom breaks. A month later, the U.S. Census Bureau instituted an office-wide policy requiring that all partnership specialists submit a minimum of 10 signed partnership agreements per week. Akerson failed to meet that requirement during the next three months, and her supervisors counseled her for her failure to do so and for her work performance generally. Approximately nine months into her employment with the Bureau, Akerson’s bladder condition worsened and she took a two-week leave of absence from her job. Upon her return from leave, Akerson met with one of her supervisors and an HR representative to disclose her bladder condition. During the meeting, the supervisor asked Akerson how long she would need to be in the bathroom on any given visit and also asked Akerson to let her know about her whereabouts whenever she was away from her desk for reasons other than using the restroom. In addition, Akerson’s desk was moved to a different location and her duties were reassigned. Four days after the meeting, the Bureau terminated Akerson’s employment, ostensibly due to her poor work performance. Akerson filed a lawsuit in which she alleged that the Census Bureau had discriminated against her because of her race (Caucasian) and disability (interstitial cystitis), had retaliated against her for seeking an accommodation of her disability, and had paid her less than a similarly qualified male employee in violation of the Equal Pay Act. The district court held that Akerson’s documented performance issues and lack of evidence of racial discriminatory animus doomed her race discrimination claims. The court also held that the Census Bureau’s practice of paying employees based on the job grade for which he or she applies constituted “a legitimate factor independent of sex” and thus was sufficient to defeat Akerson’s Equal Pay Act claim. The court refused to grant summary judgment to the Census Bureau on Akerson’s disability discrimination and retaliation claims, however, for three reasons. First, the court found that Akerson’s bladder condition impaired her ability to work and substantially limited her in her ability to work “as compared to most people in the general population.” Based on these findings, the court held that Akerson’s condition qualified as a “disability” under the 2008 Americans with Disabilities Act Amendments Act. Second, the court considered the four-day interval between Akerson’s disclosure of her disability and the termination of her employment and the Bureau’s changes to her employment conditions (e.g., moving her desk, reassigning her duties, and asking Akerson to inform her supervisor of her whereabouts whenever she was away from her desk for reasons other than using the restroom). The court found that these allegations were probative of discriminatory animus. Third, the court held that although there was undisputed evidence of Akerson’s performance deficiencies, a reasonable jury could conclude that upon learning of her request for accommodation and her disability, the Bureau had artificially inflated the severity of those deficiencies as a pretext for firing her. Specifically, the court noted that the Bureau’s claim that its decision to discharge Akerson predated her request for accommodation was suspiciously unsupported by any documentary evidence, and thus could not support an award of summary judgment in the Bureau’s favor on Akerson’s disability discrimination and retaliation claims. Key Takeaways The district court’s decision in the Akerson case underscores the importance of clear contemporaneous documentation of all adverse employment decisions including documentation of the recommendations that may lead to discipline or termination of employment. Oral testimony, alone, from a supervisor and/or a decision-maker concerning an adverse employment decision may be insufficient to prove that the employer had a legitimate, non-discriminatory reason for its decision, or that the reason was not a pretext for discrimination or retaliation. http://www.lexology.com/library/detail.aspx?g=7e2cf7dd-2263-4ec6-b13d-266fb69a0761 Akerson v. Pritzker (11/04/13) http://www.disabilityleavelaw.com/wp-content/uploads/sites/173/2013/12/120213-akerson-v.-pritzker.pdf United States: "No Urine, No Job!" – New EEOC Lawsuit (9/13/13) The pressure is on — you are in a football stadium bathroom with a line of impatient fans behind you who have been drinking beer for hours and are muttering menacingly that you are taking too much time. You freeze up. How about a situation where you had to produce a urine sample as part of a routine drug testing when applying for a job? Is Paruresis a Disability? Way back on October 4, 2011, we noted that this condition, if chronic, actually has a name — it's called "paruresis," or "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? We received a lot of mail from sufferers and do not doubt their distress. However, without minimizing the condition, nonetheless what "major life activity" (under the ADA) is substantially limited by possessing a shy bladder – urinating in public? Drinking beer at a Giants game? (Note: On May 24, 2013, we published a comment from an anguished reader who makes out a strong case for paruresis as an ADA-disability). We wrote on May 14, 2013 that in 2011 the EEOC considered these issues, published an informal opinion letter, but came to no definitive or clear conclusion, which led us to say: "Stay tuned because we will no doubt see such a fact situation hit the courts soon enough and learn more." Lexology (9/13/13) Can Paruresis Be Reasonably Accommodated? A lawsuit was filed shortly thereafter: an applicant for a position at Iowa Methodist Medical Center was refused hiring because she could not complete the urine test – yep, paruresis. She sued under the ADA claiming that the Medical Center failed to make a reasonable accommodation for her alleged disability; she claimed that she had always managed her condition by using single-stall restrooms or by running water to cover the sound of her urinating. Her court filing stated that if she “cannot flush the toilet or run the water in the sink, she is generally unable to urinate in a public restroom.” Should, or could, she have been accommodated without undue hardship by letting her turn on the sink? Is An Inability To Provide A Urine Specimen Because Of Kidney Failure Grounds For Refusal To Hire? A case just filed by the EEOC in federal court in Maryland addresses an issue similar to the paruresis situation, except that the failure of the job applicant to provide urine was not due to paruresis but due to a disability recognized under the ADA. The EEOC sued Kmart for allegedly refusing to hire an applicant who could not provide the required urine sample – not because of a shy balder but because he suffers from kidney failure and undergoes dialysis. A disabling condition to be sure, and he duly requested an accommodation — to participate in other types of drug testing which do not require urine collection, such as blood or hair testing. It is alleged that without discussing with the applicant possible alternatives to the urinalysis, the hiring manager told the applicant two weeks later that he could not be hired because Kmart’s policy required a complete urinalysis. Should, or could, he have been accommodated without undue hardship by letting him take an alternative test? One reader wrote to us a while back apropos the Iowa shy bladder lawsuit: "I can understand the person being unable to urinate with anyone else in the room, but I think the employer can overcome the problem. Medical providers have what they call ‘top hats’ — plastic things that sit across the toilet and collect urine. The employer can rig the toilet with one of these. Then, they can pat down the person before leaving her to provide the sample. It'd be more time-consuming, but it can be done." Takeaway: Even if a "shy bladder" is not considered a disability, which issue has not yet been definitively addressed, nonetheless there seem to be cheap and easy ways to accommodate a person with paruresis, so employers should not put themselves in a situation where they are subject to suit. In the case of the applicant with renal failure, this advice seems to be even more appropriate. http://www.mondaq.com/unitedstates/x/262676/Discrimination+Disability+Sexual+Harassment/No+Urine+No+Job+New+EEOC+Lawsuit Hospital Sued Over Refusal To Accommodate Applicant With Shy Bladder Syndrome In Drug Test Jonathan Turley Blog (April 30, 2013) There is an interesting case out of Des Moines, Iowa where Jennifer Conner is suing Iowa Methodist Medical Center over the alleged refusal of the hospital to make relatively small accommodations for her disability: shy bladder syndrome. Conner fears urination in public restrooms and could not complete the required drug test for a position with the hospital. Connor appeared well-suited for the position of organ transplant financial coordinator at the hospital. She is a recent graduate with a Master’s degree in health care administration from Des Moines University. However, she needed to take the drug test. Since she was a teen, Conner has been diagnosed with anxiety condition paruresis. She would often run water or flush the toilet to allow her to use a public restroom. However, the hospital put her in a room without running water and demanded a sample. One would think a hospital would be sympathetic with a condition of this kind. However, the nurses refused to find an alternative room and made things worse by pounding on the door to tell Conner to hurry up. She even offered a blood test to show that she was not trying to avoid the test but was told to produce the sample by the end of the day or lose the job. Shy bladder syndrome is considered a disability under the federal Americans with Disabilities Act. That makes this record a serious problem for the hospital. She is seeking an unspecified amount in damages, including those for lost wages and benefits, attorneys’ fees, emotional distress and pain and suffering. This could be a true learning experience and an expensive one. For a minor accommodation, the hospital could have avoided this problem. The question is whether it was made clear to the hospital that they were dealing with a diagnosed disability. I would assume that she made that clear since there is no reason not to disclose the information. http://jonathanturley.org/2013/04/30/hospital-sued-over-refusal-to-accommodate-applicant-with-shy-bladder-syndrome-in-drug-test/ Is Having a Bashful Bladder a Disability? Or Merely a Problem at Halftime at Giants Stadium (October 4, 2011) 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 “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).” Accommodation 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.” Conclusion 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. http://employmentdiscrimination.foxrothschild.com/2011/10/articles/americans-with-disabilities-ac/is-having-a-bashful-bladder-a-disability-or-merely-a-problem-at-halftime-at-giants-stadium/ EEOC Sues Kmart for Disability Discrimination (9/05/13) Hyattsville Store Rejected Applicant Who Needed a Reasonable Accommodation For His Kidney Condition, Federal Agency Charges BALTIMORE - Kmart Corporation, a leading national retailer, violated federal law by refusing to employ as a store associate an individual with a disability who needed a reasonable accommodation, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed today. According to the EEOC's suit, after Kmart offered Lorenzo Cook an associate position at its Hyattsville, Md., store, the hiring official scheduled him for an appointment to complete his new-hire paperwork and submit to drug screening. When Cook later met with the hiring official as requested, he advised the manager that he suffered from kidney failure and could not provide a urine sample for urinalysis because he undergoes dialysis. Cook expressed his willingness to participate in drug testing and asked about reasonable accommodations such as drug testing not requiring urine, including blood or hair testing. The manager said she needed to discuss his request with her colleagues. About two weeks later, without discussing possible alternatives to the urinalysis, the hiring manager told Cook that Kmart's policy required all new hires to undertake a standard urine test. Kmart denied Cook employment because he could not complete the urinalysis, the EEOC said. Such alleged conduct violates the Americans with Disabilities Act (ADA), which requires employers to provide a reasonable accommodation, including during the application and hiring process, unless it can show it would be an undue hardship. The ADA also prohibits employers from refusing to hire individuals because of their disability. The EEOC filed suit (EEOC v. Kmart Corporation; Sears Holdings Management Corporation; Sears Holding Corporation; Civil Action No. 13-cv-02576) in U.S. District Court for the District of Maryland after first attempting to reach a voluntary pre-litigation settlement through its conciliation process. The EEOC seeks injunctive relief prohibiting Kmart from discriminating based on disability, equitable relief that provides equal employment opportunities for individuals with disabilities, and lost wages, compensatory and punitive damages and other affirmative relief for Cook. "Mr. Cook was offered a job as an associate based on his qualifications, and simply needed a reasonable accommodation to complete the hiring process and begin working," said EEOC Philadelphia Regional Attorney Debra M. Lawrence. "The EEOC will take action when an employer unjustifiably refuses to provide, or even consider, making simple changes to its post-offer screening practices to enable an individual with a disability to start working." EEOC Philadelphia District Director Spencer H. Lewis, Jr. added, "Given the resources of a major national employer like Kmart, it is hard to understand how it would have posed an undue hardship for the retailer to allow Mr. Cook to submit to a blood test as he offered to do, instead of rigidly requiring a urine sample that he could not provide due to his kidney impairment." http://www.eeoc.gov/eeoc/newsroom/release/9-5-13.cfm Post Comment Private Reply Ignore Thread
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