Circuit tosses ADA verdict in "Shy Bladder" case

The Americans With Disabilities Act requires employers to reasonably accommodate your disability. What does it mean to "reasonably accommodate"? And what is a "disability"? The answer to those questions can take all day. Our focus today is Paruresis and New York City's rules for shipboat captains.

The case is Kinneary v. City of New York, decided on March 19. I argued this appeal. Kinneary worked for the City as a Sludge Boat Captain with the NYC Department of Environmental Protection. He was unable to comply with the City's drug tests because of his Paruresis, commonly known as Shy-Bladder Syndrome, an anxiety that prevents you from urinating under pressure. However, as the Court of Appeals (Hall, Cabranes and Sullivan [D.J.]), noted, after the City notified Kinneary that he was going to lose his license to operate these vessels, "Kinneary took a number of proactive steps. He passed a blood test and a hair test. Kinneary twice wrote a City equal employment opportunity officer about the situation, but he never received a response to his inquiries."

The jury ruled in Kinneary's favor, awarding him back pay and damages for pain and suffering. The Court of Appeals reverses, holding that Kinneary was not qualified for his position because he was unable to pass the drug test and the reasonable accommodation that the City has in place for this problem -- a doctor's note containing certain particulars -- was not satisfied because his doctor's note did not affirmatively say that Kinneary "had a medical condition that did, or with a high probability could have, precluded Kinneary from providing a sufficient amount of urine for the test. Instead, the note simply stated the name of the condition, noted it was chronic and could be helped by an alpha blocker that Kinneary had been given, and indicated that Kinneary was not a substance abuser."

Even if it did not technically satisfy each requirement in the regulations, the doctor's note was good enough for the jury, probably because the note said that Kinneary's "medical condition" was "chronic." But the note was not good enough for the Court of Appeals, which also implicitly found that the alternative tests that Kinneary completed (blood, hair and saliva) were not enough to prevail at trial, even though these tests were reliable and confirmed that plaintiff was drug-free.

As an added bonus, the Court of Appeals drops a footnote that questions whether Kinneary's condition qualifies as a disability under the Americans With Disabilities Act. The jury said that Kinneary's Shy-Bladder condition was a disability. The Second Circuit is not so sure, stating (without conclusively resolving this issue):

Because Kinneary fails to make out this element of his claim, we need not and do not resolve here whether “shy bladder syndrome” can be a disability under the ADA. We did not reach this issue in Buckley v. Consol. Edison Co. of N.Y., because the plaintiff in that case had conceded that his bladder condition was not a disability under the ADA. 155 F.3d 150, 152 (2d Cir. 1998). We note that a U.S. District Court has said that, on the record before it, there was no evidence that shy bladder syndrome limited a plaintiff’s “ability to care for himself, perform manual tasks, or engage in other major life activities” and that the plaintiff before it, in opposing summary judgment, did not contend that the condition was an ADA disability. Balistrieri v. Express Drug Screening, LLC, No. 04-C-0989, 2008 WL 906236, at *5 (E.D. Wis. Mar. 31, 2008).