The 2nd U.S. Circuit Court of Appeals cited an extreme technicality in throwing out a landmark $225,000 jury award to a former Merchant Marine captain who suffers from shy bladder syndrome.

Joseph Kinneary

A jury in September 2007 found the City of New York liable under the Americans With Disabilities Act for failing to accommodate Captain Joseph Kinneary's inability to urinate on command. He was fired in March 2004 after years of clashing with the city over providing urine samples for drug testing.

The ADA defines a disability as a mental or physical impairment that substantially limits one or more major life activities. The verdict in Kinneary's case appears to be the first in which a jury declared urination a major life activity.

But in a March 19 opinion, the 2nd Circuit flushed the verdict down the drain, finding that Kinneary, a sludge boat captain for the city's Department of Environmental Protection, failed to satisfy the bureaucratic requirements for keeping his job after he was unable to urinate for a mandatory test in December 2001.

“[T]he City provided Kinneary with the accommodation he sought,” the court said, referring to “the opportunity to have [the] drug test cancelled based upon a physician's evaluation.”

Under federal rules, an employee with shy bladder syndrome may cancel a drug test by obtaining a note from a doctor which says that “A medical condition has, or with a high degree of probability could have, precluded the employee from providing a sufficient amount of urine.” The doctor who evaluated Kinneary wrote:

This man has “Shy Bladder Syndrome” -- this is a chronic condition that can be helped by using an [alpha] blocker (flomax) which I have given him. He is not a substance abuser.

After finding the note was inadequate, the U.S. Coast Guard suspended Kinneary's merchant mariner license for refusing to take a drug test, paving the way for the city to fire him because, without the license, he could no longer “perform the essential functions of his job.”

“[T]he evidence unequivocally demonstrates that ... Kinneary failed to comply with the regulatory requirements that would have allowed him successfully to cancel his test and save his license,” Judge Peter W. Hall wrote for the 2nd Circuit.

Hall added in a footnote that “we need not and do not resolve here whether 'shy bladder syndrome' can be a disability under the ADA.” But he went on to cite a similar case in which a Wisconsin judge held 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.'” Balistrieri v. Express Drug Screening.

While the wording of the physician's evaluation of Kinneary may not have precisely passed bureaucratic muster, it seems like a very meager rationale for overturning the jury's verdict. After all, shy bladder syndrome would — by definition — preclude Kinneary from providing a sufficient amount of urine.

After the abortive December 2001 urine test, Kinneary passed a blood test and a hair test. “Maybe Kinneary needed either a doctor who's a lawyer, or a lawyer advising his doctor on how to write a diagnosis,” says a reader of a website that tracks 2nd Circuit decisions.

Hall's footnote hints at an underlying hostility toward the idea that shy bladder syndrome, also known as paruresis, is a bona fide disability.

According to the International Paruresis Association, seven percent of Americans suffer from the condition, which is classified as a social anxiety disorder by the American Psychiatric Association. A New Mexico jury in 2004 found under state law that paruresis is a “serious medical condition” and a hospital violated the rights of a doctor by refusing to accommodate it.

By Matthew Heller
3/26/10