Could Porn Addiction Become a Viable Workplace Disability?

LOS ANGELES—Canadian lawyer Stuart Rudner published an article today on the possibility that in the near future courts may consider pornography addiction as a legitimate form of workplace disability when deciding cases involving the summary termination of an employee. "As I reviewed recent summary dismissal decisions in preparation for the first update of 2014 to my book You're Fired! Just Cause for Dismissal in Canada, I came across a decision that addressed the interplay between summary dismissal and the duty to accommodate," he wrote for hrreporter.com. "In that case, what made the decision more interesting and entertaining was the fact it related to a relatively new form of disability for which accommodation was requested: Addiction to Internet pornography." In the case, a 10-year employee "was found to have spent hundreds of hours surfing the net while he was at work. He worked nights, generally unsupervised." Despite working with a work computer equipped with a filter, "The evidence showed he had accessed many inappropriate websites and, when websites that he attempted to access were blocked, he entered alternate URLs in an effort to defeat the blocking mechanism. Rather than trying to access a .com website, he might try the same name using .org or.ca. In addition, he also accessed various dating websites and used his corporate email account to log in and receive correspondence from those websites, again contrary to policy." Rudner explained that at trial it was quickly established in arbitration that the employee had violated work policies, and that his behavior could rightly be considered misconduct, but as Rudner explained, "Once misconduct has been established, the employer must assess whether, in light of all of the relevant circumstances, summary dismissal was warranted. In other words, had the employment relationship been irreparably harmed? Further, courts have made it clear that proportionality is a fundamental principle. In other words, a judge will not ratify dismissal for cause where a lesser form of discipline would be appropriate." The employee in this case also claimed to be suffering from porn addiction. "Specifically," added Rudner, "he claimed he could not control himself and was effectively addicted to internet pornography. He said he had a lot of stress in his personal life and surfing the internet for pornography was an 'escape,' adding he only did it during down time and didn’t compromise the safety of his patients or his job performance." He also produced a "screening test" to back up the addiction claim, but hit a brick wall when the arbitrator denied his claim on the grounds that the test was invalid and noted that 'sexual compulsivity' is not a recognized mental illness." The addiction claim was also rejected because the employee had tried to delete incriminating emails, wrote Rudner. Despite a finding in this case against the "porn addiction" claim, however, Rudner sees a possible future in which the alleged ailment is taken seriously by judges. "In recent years," he argues, "the notion of addiction to Internet pornography has been raised on several occasions, and it was only a matter of time before it was an issue that had to be addressed by the courts. In this case, the court dealt with the submission quickly, as there was no real evidence to support it. In other words, the employee had not demonstrated he actually suffered from a legitimate disability that required accommodation. It remains an open question as to whether our courts would recognize such a disability if sufficient evidence was put forward."