A man sued IBM earlier this week for wrongful termination when he was fired for visiting adult chat rooms at work. The employee seeks $5 million, asserting that his termination amounted to both disability and age discrimination. The disability, apparently, was the result of traumatic stress from seeing a friend killed in Vietnam (38 years ago.) James Pacenza, 58, claimed that his visits to the adult chat rooms (a few months ago) were a form of treatment for the stress, and that he "was tempting [him]self to perhaps become involved in some titillating conversation," according to his complaint. I am not making this up.
What’s interesting about this case is the nature of his alleged disability. Pacenza asserts that he is "a sex addict, and with the development of the Internet, an Internet addict." But remember that he also claims to suffer from post-traumatic stress resulting from his war service.
IBM, not surprisingly, is seeking summary judgment on several grounds, the most obvious of which is that sexual disorders are specifically excluded from protection under the ADA. In fact, Section 12211 of the act specifically excludes “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders” from the definition of disability.
Notice, however, that this section doesn’t say anything about being “an Internet addict.” That’s a little different from sexual disorders. In fact, last October a Stanford University study reported on the concept of Internet addiction. The study reported that:
Nearly 14% of respondents said they found it difficult to stay away from the internet for several days and 12% admitted that they often remain online longer than expected. More than 8% of those surveyed said they hid internet use from family, friends and employers, and the same percentage confessed to going online to flee from real-world problems. Approximately 6% also said their personal relationships had suffered as a result of excessive internet usage.
That led the lead author of the study to compare Internet use with alcoholism, since it involved hiding the behavior from others going online to cure foul moods. "In a sense, they're using the internet to self-medicate," he said. Sound familiar?
So, while at first glance Mr. Pacenza’s desperate need to visit an adult chat room while on break might seem to fall squarely within that ADA exclusion of sexual disorders, IBM may be in for more of a fight than it thinks.
More importantly, given the prominence of internet use in the workplace, this decision, if adverse to IBM, could have far reaching implications for employers.