In Canada, sex addiction is apparently not a disability. (Whether it is under the Americans with Disabilities Act remains to be seen, but I don't think so.)
A labor arbitrator has upheld the termination of an employee in Halifax, Nova Scotia, who was fired for . . . er . . . um . . . well . . .
This employee liked to do it at work. All the time. In the employee restroom.
And he moaned and made funny noises while he was doing it.
His co-workers complained to the employer, who was too embarrassed to face the issue head on. But the employer did tell him that it had received complaints about "unusual noises" from his bathroom stall and suggested he might want to talk to Human Resources if he was not feeling well.
When the inappropriate behavior continued, the employer released him, and he filed a grievance.
First, the employee argued that he had a "sex addiction," which was a disability under Canadian law, so his employer should have "accommodated" him.
Second, he said that he was considerate of his co-workers and never did it when the stall immediately beside his was occupied. (What a guy!)
Third, he said he wasn't warned that his behavior could lead to termination because the employer spoke to him about it only in euphemisms.
But you'll be relieved to know that the arbitrator ruled in favor of the employer. Although finding that the employee wasn't doing anything illegal, Arbitrator Gus Richardson ruled that he caused "embarrassment and distress" to his co-workers who were unlucky enough to be in the restroom when the employee was.
Yuck. I'll say.
The employee also argued that he was quiet and always kept his cell phone on silent if he was watching porn while going about his business. (I am not making that up.) But the arbitrator said he obviously wasn't that quiet, because otherwise how would the employees have known to complain about his behavior?
And, even assuming for the sake of argument that the employee had a "sex addiction" -- as his expert witness with the degree from an unaccredited, online institution had testified -- the arbitrator found that the alleged addiction was "not disabling in any way."
Supposedly this is the first known case in Canada involving this particular . . . issue. I sure hope that our arbitrators in the U.S. will agree with Mr. Richardson.
And I hope Mr. Richardson gets twice his usual fee for having to handle such a ridiculous case.
Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.