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Hold It! Must You Allow Unlimited Bathroom Breaks?

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You’re required to offer job accommodations to employees with qualifying disabilities. But if an employee has a medical condition that requires frequent bathroom breaks, does that count as a “disability”? The answer is a clear “yes," especially this year …

Case in Point: Reginald Green was hired as a chauffeur and office assistant for a university president. Green underwent a pre-hiring medical exam in which he disclosed that he took medication for a bowel condition. He explained that the condition caused him to experience urgent needs to use the washroom. Nevertheless, he had no work restrictions.

Before he began the job, Green’s supervisor reviewed with him his responsibilities to be a safe driver. The supervisor also allegedly told Green it was best to minimize bathroom stops on long driving trips, stating that one stop was “acceptable” but “zero is preferable.”

The trouble occurred when the university president took a business trip from Washington, D.C., to Philadelphia. Prior to leaving, Green asked his supervisor if he could stop during the drive to use the restroom. The request was approved.

However, on the return ride home, the president didn’t want Green to make any stops. Green warned the president that he would “have an accident in the car” if he wasn’t allowed to stop. The president ignored his plea. Regardless, Green drove to a rest stop and used the facilities. When Green returned to the car, the president mumbled something under his breath and refused to talk to Green the rest of the drive. The next day, Green was fired.

He sued the university for discriminating in violation of the Americans with Disabilities Act (ADA), which requires “reasonable accommodations” for people with qualifying disabilities. The school countered by saying Green was fired for a legitimate business reason (poor performance) and not because of his disability. Plus, it argued that Green wasn’t technically disabled because he never missed a day of work due to the medical condition. (Green v. American Univ., D.D.C., 8/21/09)

On Oct. 1, Mindy will explain—in her trademark entertaining style—what the EEOC is targeting and how your organization can fly under the Commission’s radar, in the interactive webinar Curing The Lawsuit Epidemic — with Mindy Chapman’s HR 'Booster Shot'

What happened next and what lessons can be learned?

The court told the university to put a lid on its defense. It sent the case to a jury to flush out the facts.

The court said Green does qualify as a disabled person because the ADA Amendments Act of 2008 included “waste elimination” as a “major life activity” under the law. (The ADA says a disabled person is one who “has a physical or mental impairment that substantially limits one or more major life activities.”)

The court also rejected the theory that Green wasn’t disabled because he never missed work due to his ailment. It noted that “missing work is not a prerequisite for establishing the existence of a substantial impairment.”

In the past, the EEOC was going after the $25 million cases. Now they’re going after everybody for everything. Use this fun, skill-building webinar to get up to speed on the newest employment-law threats and solutions. And because it is a webinar, there is no limit to the number of participants at your location. Register now for this interactive event!

3 Lessons Learned … Without Going to Court

1. Respect the accommodation—don’t mumble under your breath. The court can hear you. It may not hear exactly what you said, but it will hear your attitude against people with disabilities or other protected characteristics.

2. Try, try again.  If you fire an employee with a disability who has a good performance record and then you claim they were fired for poor performance … try, try again. But, as in this case, the court won’t buy fishy excuses.

3. Get a sundial. If an employee asks for a reasonable accommodation before the sun rises and you fire them before the sun sets, get ready to write a check where the sky is the limit.

Mindy is one of the top-rated speakers at HR conferences across the country. And this briefing was rated as one of the top sessions at this year’s Society for Human Resource Management’s annual conference. Mindy will share her knowledge about:
  • Where employers are most vulnerable to employee lawsuits in today's economy—and how you should build your defenses immediately.
  • The essential changes to policies and procedures needed to avoid employment liability in 2009 and 2010.
  • The latest legal developments that every HR professional should be aware of
  • Practical lessons you can apply today from 10 recent lawsuit rulings.
  • The meaning of “DITO DITA” and why you should post this motto on your wall.
You’ll also have an opportunity to ask Mindy your own questions during the interactive Q&A session. Register now!

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{ 12 comments… read them below or add one }

xang xiong August 5, 2011 at 2:33 am

Hi Mindy
I work at a company 2nd shift but the president will have one of the lead man to lock the bathroom if we need to use it we have to go find him cause he the only one with the key but he's never around sometimes I and fellow employees will have to hold it for hour. But during 1st shift the bathroom is always open and they allow them to use it when ever they like. What should I and my co-worker do so that we will have the same right to use the washroom whenever we need to like the 1st shift?


Robert November 21, 2009 at 6:55 pm

Everyone should know that OSHA (Occupational Safety and Health Agency) requires employees in the United States to be allowed to go to the bathroom and get a drink of water whenever they need, not just on breaks. You can report violations to your local state OSHA office. You can also ask OSHA to keep your name private from the employer. If you do get disciplined for calling OSHA, you can contact them again and they are supposed to take care of that, too. I would encourage anyone who works somewhere like this to call OSHA and stand up for yourself and fellow employees.


Allen Bahn September 27, 2009 at 11:01 pm

I am president of an established company.I have prostrate problems along with blader cancer.I wear diapers and some times i have to change three to four times a day.I am limited to ameeting not exceeding one hour.
I would sugest giving the driver anothr boss or the president of the university another job.
The driver could also use heavy diapers and put two absorbing pads which could absorb any leakages.I always cary a spare trosers in case of an accident.A visit to a good urologist could help.


Megan September 16, 2009 at 10:18 pm

I read this one with disbelief. I’ve had the misfortune, only once thankfully, of soiling myself in a traffic jam situation. I had a female co-worker in the car with me at the time who was very understanding, but it was such a humiliating and outright embarrassing experience. I didn’t have a medical disability, I just outright had to go! And being stuck in traffic, no restrooms available, with a co-working in the car and nature calling… what are you supposed to do?


Sharon September 16, 2009 at 4:32 pm

When nature calls, disability or not, one should be allowed to go. My sister works for a company 11 hrs a day and they refuse bathroom breaks. If they have to go to the restroom they must shave it off their break or their lunch and still they hear about it. Medically, it is not good to try and hold it in for long periods of time and when you can’t you wind up having an accident which is mortifying.


Sarah September 16, 2009 at 8:49 am

With a trip of around 140 miles, I can’t beleive ANYONE wouldn’t need to use the restroom!


Teresa September 15, 2009 at 4:00 pm

This illustrates absolute absurdity on the part of the president and the employer. As far as I’m concerned EVERYONE would qualify as disabled in this case because “having to go” is something that happens to everyone. Ridiculous! Good thing they threw the book at them.


Mindy Chapman September 13, 2009 at 9:29 pm

Hi, Peter:
I know it is hard to believe. I had to read the case a few times too, but I could not make this stuff up if I tried. There is no “back story.” This is exactly the way the lawsuit was reported. The employee was even entitled to “progressive disciplinary action” and that didn’t happen. I believe the way the court reported the case because the president was openly hostile towards the employee’s disability and the HR professional communicated that as well when she said “zero” bathroom stops were preferred during long drives. Also, the employee was fired the next day without ever any record of performance issues. Please tell your “gut” that discrimination against people with disabilities lives on in 2009–that’s the real back story, a sad story, but a true one.
Best regards,


Peter Rowan September 10, 2009 at 9:06 am

This case must have a back story. I absolutely refuse to believe the president of a university had someone fired soley because the stopped to use the restroom. There must be much more to why the driver was fired. Come on Mindy. Don’t we deserve the rest of the details? Or, are we like the jury? You can’t tell us the rest of the facts because they “aren’t allowed.” I certainly can appreciate the ‘case in point’ you are making but in my gut I believe the back story contains the real lesson.


Brad Ray September 4, 2009 at 1:06 pm

Sadly, I have seen this type of infraction and worse within the manufacturing industry. Further, with the current state of employment, I don’t see many bright points in the distance. Employers will tend to treat their employees worse in a tight recession and I expect that there will be a number of these types of suits in the future. Great article by Mindy, she stays on top of it so that the we can avoid others mistakes! Thanks Mindy!!


DrStillStanding September 3, 2009 at 5:45 pm

Wow! Another EXCELLENT article by Mindy!

Mindy ROCKS!

I wish Mindy would send us an article EVERYDAY and EVERY HOUR!

I am printing this one off, the next time my senior executives LAUGH when I tell them we (the company) may be violating ADA laws, I will print this article off and paste it on their forewards, along with a check book, because as Mindy points out—–“be prepared to write a check where the sky is the limit!”.

Excellent post!

PS: Can you imagine IF this was a female with “other” reasons to stop for a restroom break! This president/CEO or whatever his title “was” has to be one of the dumbest folks I have read about in a long time. How dare this president to tell me when I can not use the restroom! LOL! (Laughing & shaking my head!) lol! :)

Dr. C.


Laura September 3, 2009 at 4:12 pm

I personally cannot fathom the individual (let alone the company) who would deny any person a bathroom break-disability or not. Be human and use common sense, people! How much would the president have mumbled if the guy had actually had an accident in the car??


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