An Example of the Expanded Definition of "Disability" Under the ADAAA

October 10, 2011

We all anticipated that the Americans with Disabilities Amendments Act (ADAAA) would make it easier for certain medical conditions to qualify as protected disabilities. That was, after all, the point of the Act. Earlier this year, the EEOC provided us with an example of how the ADAAA may do so when it issued an informal discussion letter noting that it will now be easier for individuals with paruresis – commonly known as “shy bladder syndrome” – to meet the statutorily revised definition of a disability. This informal discussion letter is a clear reminder that employers should not make assumptions about whether a particular condition qualifies as a disability.

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. The condition is typically considered to be an anxiety disorder, but it can also consist of chronic pelvic floor dysfunction. To determine if paruresis qualifies as a “disability” under the ADAAA, the EEOC letter opinion reminds employers to conduct an individualized analysis to determine if one of the statutory definitions has been satisfied:

1. a physical or mental impairment that substantially limits a major life activity;
2. a record of a physical or mental impairment that substantially limits a major life activity; or
3. an adverse employment action taken because of an actual or perceived impairment that is not both transitory (i.e., expected to last for 6 months or less) and minor.

An individual with paruresis has a disability under the ADAAA if his or her condition “substantially limits” one or more “major life activities.” The list of major life activities, though not intended to be exhaustive, has always included caring for oneself. Under the ADAAA and the corresponding regulations published by the EEOC in March 2011, this list now also encompasses bladder and brain functions, as well as operations of the neurological and genitourinary systems. This makes it easier for paruresis to meet the standard.

The term “substantially limits” is broadly construed in favor of expansive coverage. An impairment no longer has to prevent or severely or significantly restrict a major life activity to be substantially limiting. Additionally, the determination of whether an impairment substantially limits a major life activity must be made without regard to mitigating measures such as medication or cognitive-behavioral therapy. All of these changes also make it easier for someone with paruresis to meet the statutory standard, but an individualized assessment is still required.

An individual with paruresis also has a disability if the employer “regards” that individual as being disabled. To regard an employee as disabled, the employer must take an adverse action against the employee because of an actual or perceived impairment (unless the impairment is transitory and minor). The EEOC opined that paruresis does not appear to be a transitory impairment. Accordingly, if an employer terminates, fails to hire or takes another similar adverse action against an individual because of paruresis, whether the condition is real or perceived, it is probable that the individual will be “regarded as” having a disability. It should be noted, however, that employees who are merely “regarded as” disabled are not entitled to reasonable accommodations.

In light of this EEOC informal discussion letter and the broad definition of disability under the ADAAA, employers who require applicants and/or employees to undergo drug testing are advised to use caution before subjecting individuals with paruresis to adverse employment actions because they are unable to take a drug test through urinalysis. Employers faced with this situation should conduct an individualized assessment to determine whether the individual, in fact, qualifies as an individual with a disability under the ADAAA. If the individual qualifies (which is likely), one potential alternative for employers to consider would be to allow the person to take an alternative drug test which does not involve urination (i.e., a hair, saliva or patch test).

Overview