Your business drug tests job applicants as a condition of
employment. What would happen if a male applicant refused to take a urine test
because he claimed that he had paruresis,
otherwise known as "shy bladder syndrome" or "bashful bladder
syndrome"? Would you have to accommodate the applicant with a different
type of drug test? Or could you just refuse to hire the applicant?
The EEOC recently addressed this topic and I
have the answer -- along with some self-deprecation -- after the
* * *
I've seen hell. And it's the men's bathroom
at Veterans Stadium.
Back in the late 80's, on the cusp of entering my teenage
years, I went to see a Philadelphia Eagles game at Veterans
Stadium on a cold day in December. To this day, I couldn't tell you who the
Eagles were playing, whether they won or lost, or even with whom I went to the
What I do remember -- vividly -- is my trip to the
It all happened at or around the 2nd quarter. There I am,
waiting in a line that extended out the door of the men's room with several
surly 700-level Eagles fans. Patiently, I watched as fans slowly
trickled out of both the bathroom exit and the entrance. (Those signs were
As I finally crossed the threshold, the first thing I
noticed were the heaters, spewing fiery hot blasts on my back. We're talking
Africa-hot. Combine that with the many layers of clothes I was wearing,
and, on a cold December day outside, inside, this bathroom felt a
sauna -- a damp sauna thick with the stench of urine. I might as well have in
standing in a giant port-a-potty. For, as I looked around, I could see grown
men peeing in open closets, trash cans, clogged sinks, and floors. (Well, at
least they weren't trough
diving -- warning: the link is to a disgusting YouTube video which,
while technically safe for work, should not be viewed around mealtime).
Those who actually stood in line for the urinals -- only
three or so can squeeze around the same sink -- were packed in, 8 wide,
shoulder-to-shoulder. "Hurry up, ***!" was probably the most
common chant; followed closely by, "Let's go, ***!" Savages,
I tells ya! Savages!
But, I endured. I waited for what felt like an eternity,
until finally, I reached the front. At first, I fumbled around a bit. Could you
blame me? I was in the middle of Thunderdome. In
making the final preparations, like Homer Simpson conjuring up images of "Flushing
Meadows," I tried to picture myself being somewhere else. But, that's
pretty darn hard when you're facing a barrage of obscenities and you can
actually feel the glassy eyes of dozens of men with beer-filled bladders
piercing through the back of your head. I took a deep breath to compose myself.
But, that smell! Between the close space, the stink, and the verbal assault
on my pre-teen sensibilities, my bladder became bashful and paruresis got the
best of me on that day.
"Shy bladder syndrome" may be a
disability which employers must accommodate.
If my disturbing imagery didn't paint a clear enough
picture for you already, allow me to clarify. Paruresis is the inability to
urinate in public restrooms or in close proximity to other people, or the fear
of being unable to do so. (Fortunately for me, my "paruresis" was a
one-time thing). Chronic paruresis, on the other hand, is generally considered
to be an anxiety disorder, and typically is treated with cognitive-behavioral
But is it a disability?
Under the Americans with
Disabilities Act Amendments Act, a physical or mental impairment that
substantially limits one or more major life activities is considered an actual
disability. Major life activities include major bodily functions, such as
bladder and brain functions, and functions of the neurological and
genitourinary systems. So, yes, one could make a good argument that going to
the bathroom is a major life activity.
Both the ADAAA its supporting regulations state that the
term "substantially limits" shall be construed broadly in favor of
expansive coverage. Additionally, whether an impairment substantially limits a
major life activity is determined without regard to the ameliorative effects of
mitigating measures (like medications or treatment). Thus, an individual's
paruresis substantially limits a major life activity if it would do so in the
absence of treatment, including cognitive-behavioral therapy and medication.
How should drug-testing employers address
candidates with paruresis?
So, let's assume that a job applicant comes to you and
asks for an accommodation -- an alternative to a urine test. Jonathan Segal, in this article over at the Duane Morris
Institute, offers two options for the company. First, it could arrange for a
medical evaluation to determine if the paruresis is legit. But that's
expensive. Segal's preferred second option would be to establish a protocol
that, unless other prohibited by applicable state or local law (or union contract),
whenever an individual cannot provide a urine specimen, he or she must provide
a hair specimen.
Makes sense to me. Unless changing test protocol would
cause undue burden or expense to the employer, this is a textbook reasonable
You can find a copy of the EEOC Informal Discussion
This article was originally published on Eric B. Meyer's blog, The Employer
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