There has been a lot of ink spilled and kilobytes written about how the ADA Amendments Act has substantially expanded the rights of individuals with disabilities to seek and obtain reasonable workplace accommodations. (See post, post, post, and post). The increase in the number of applicants and employees who qualify for reasonable accommodations and the types of impairments that now qualify as disabilities has me thinking about the unintended consequences arising with such broad and encompassing changes to the ADA. Today I read about a potential consequence I had not been able to imagine.
Elie Mystal wrote yesterday at Above the Law about an employee in Brazil sued and won the right to watch pornography and masturbate because she suffers from "a chemical imbalance that triggers severe anxiety and hypersexuality." This started me thinking, could the EEOC bring the same suit against a U.S. employer on behalf of an employee who wanted breaks to watch pornography and otherwise relieve his or her stress caused by severe anxiety or hypersexuality (i.e., to masturbate)? I think the answer, despite what Congress intended, is probably "yes".
First, is hypersexuality or severe anxiety a disability? The ADAAA regulations say that "depressive disorder, bipolar disorder, OCD, and schizophrenia" are presumptively disabling disorders. Severe anxiety is a recognized psychological disorder listed in the current version of the DSM and hypersexuality is a proposed diagnosis for the the DSM-V. (check)
Second, does it substantially affect a major life activity? The EEOC’s regulations instruct that whether a major life activity is substantially limited is not a demanding standard and should be viewed expansively. Furthermore the Commission regulations include concentrating, thinking and the operation of the major bodily systems including the reproductive system as major life activities. Therefore, it should not be hard to imagine evidence that these disorders cause the employee difficulty with thinking, concentrating or the normal operation of the reproductive systems. Moreover, how would an employer challenge whether these impairments and the preoccupations it causes limits the employee’s ability to think or concentrate? (check)
Third, are reasonable break times to relieve stress reasonable? Unless the employer can show undue hardship, probably so. Employees are permitted reasonable break times for reasons caused by other physical impairments such as frequent restroom breaks for impairments affecting the urinary or digestive systems; and frequent meal or break times for diabetics who need to test their blood sugar and eat small meals. Consequently, it would be up to the employer to show that the requested accommodation is not reasonable and/or it causes an undue hardship. (check).
Having concluded that the EEOC could bring this lawsuit under the ADA on behalf of a employee or applicant, I recognize that the likelihood of it doing so is less than zero; the political fallout would be disastrous for the Commission. Just because the EEOC would not bring the suit, however, would not prevent an employee from hiring private counsel and bringing the same claim against his or her employer. This example demonstrates just how far the ADAAA has gone to expand what qualifies as a disability. Did Congress go too far when it passed the ADAAA?