By Reba Weiss and Harrison Owens
In Oberti v. Pacific Maritime Association, et al. the District Court held that an employee could continue a claim for failure to accommodate under the Washington Law Against Discrimination (WLAD) although his “shy bladder syndrome” is not considered a disability under the ADA (The ADA has since been amended to the Americans with Disabilities Act As Amended (ADAAA). Under the new ADAAA, which greatly broadened the medical conditions which constitute a “disability”, “shy bladder syndrome” would probably be considered a “disability”.). In his suit, the employee claimed that his employer failed to accommodate his disability when it discharged him for failing to provide a urine sample for a drug test. The District Court found that the employee showed that his disability was medically diagnosable and substantially limited his employment, his employer did not engage in the interactive process, and his employer did not provide accommodation.
Mr. Edmund Oberti was a “casual” non-registered longshoreman employed by the Pacific Maritime Association. Mr. Oberti had previously failed a drug test as a trainee in 2007, but was given an opportunity to retest and passed. On August 7, 2010, Mr. Oberti was scheduled for a drug test, which required a urine sample, as part of a possible promotion to a Class B “registered” longshoreman. Mr. Oberti was unable to produce a usable urine sample, despite the Association eventually applying the Department of Transportation’s “shy bladder protocol.” The test was reported as a “refusal” due to Mr. Oberti’s inability to produce a usable sample.
Later that evening, Mr. Oberti was unable to urinate and went to the emergency room. The doctor diagnosed him with “shy bladder syndrome,” which is an inability to urinate under certain circumstances due to severe anxiety. Mr. Oberti provided the doctor’s letters to his employer and his union on or before August 11, 2010. Mr. Oberti stated that he had never experienced this prior to or after his drug test. On August 18, 2010, the the employer suspended Mr. Oberti’s dispatch privileges and he was permanently removed from the industry.
Several courts have found that “shy bladder syndrome” is not a disability under the federal Americans with Disabilities Act (ADA). However, Washington law defines “disability” more broadly and provides Washington residents with additional protections (This is not necessarily true since enactment of the ADAAA.). The District Court found that Mr. Oberti provided evidence that “shy bladder syndrome” is medically diagnosable and substantially limited his ability to be promoted to a Class B longshoreman position or continue in the industry. The District Court also found that Pacific Maritime knew of Mr. Oberti’s disability prior to termination, and failed to engage in the interactive process in order to accommodate him. The District Court found that Pacific Maritime did not present persuasive arguments against Mr. Oberti’s failure to accommodate claims and denied its motion for summary judgment on the failure to accommodate claim.
Prior to the enactment of the ADAAA, the Washington law prohibiting disability discrimination was broader than its federal counterpart. That has changed, however, with the enactment of the new federal law. An employer, once it is on notice that an employee has a disability, must engage in the “interactive process” in order to find a reasonable accommodation for the disabled employee. If it fails to do so, it is at risk of violating the ADAAA and the Washington Law Against Discrimination (WLAD).
**For more information on Disability Discrimination, click HERE!
