Better Than Barnum and Bailey's Where do I sign up? This was my immediate reaction after learning about James Pacenza, a former IBM employee who is suing the company for violation of his rights under the Americans With Disabilities Act after he was fired for logging onto an adult chat room using a company computer while at work. Says he became a sex addict as a result of traumatic stress suffered in 1969 in the Vietnam War and that he "treats" his stress disorder by visiting adult chat rooms. Instead of canning him, he claims IBM should have helped him by accommodating his sex addiction "disability."

I don't even know where to begin. Not that I'm a cynic, but I imagine the conversation with his lawyer went something like this:

Pacenza: "....and then I got fired."
Lawyer: "Listen, Jim, there are 100 reasons this claim is going to fail, but as long as you are okay with going public, I'm sure I can help you shake a few trees."
Pacenza: "That would be great."

This lawsuit makes a complete and utter mockery of the ADA and smacks of a media hungry lawyer trolling for publicity. I'm not saying I don't believe that Pacenza has an addiction. I'm not even scoffing at his claim that his sex addiction is rooted in his war experiences. (Hey, I'm a product of a women's college -- we make Fonda look like a righty -- so, I can dig it.) What I am saying is that, on its face, this claim has no legal merit under the ADA and the lawyer should know it, if he doesn't. I would love to be IBM's lawyer. Hell, I'd do it for free (not that I'm a media hungry lawyer..).

It's basic ADA law that employers do not have to condone their employees' illicit or illegal drug or alcohol use on the job. If an employee comes to you and says, "I used to have a drug problem, but I got some help. I'm clean, but I need some flexibility in my schedule to go to my therapy meetings," then you've got an ADA situation to address. You engage the employee to get details about his needs and you see what you can do to help a guy out, so long as he can do his job. That's not what Pacenza did.

If we are to believe that Pacenza is an addict (even assuming that the court will accept that being a sex addict qualifies as a bona fide "mental disorder" under the statute, which is doubtful given the ADA's exclusion of sex-based disorders), then his participation in an adult chat room while at work is no different than the employee caught shooting up in the company loo.

So, even accepting as true Pacenza's allegations, IBM did not have to continue to employ him after he was discovered to be engaging in conduct expressly disallowed by written company policy(which it was) simply on the basis that he can't help it.

Pacenza's lawyer has argued that, because IBM offers treatment programs to employees with substance addictions, it should have offered Pacenza treatment instead of terminating him. Notwithstanding IBM's offer of treatment to those employees, I would bet that IBM prohibits employees from doing drugs at work regardless of whether they are in treatment. Plus, according to IBM, Pacenza had been caught and warned before. Apparently, he didn't ask for help then, although he denies he was previously warned.

Pacenza's (too) late assertion that he is disabled loses credibility when you consider that this is a guy who claims he has been a sex addict for nearly forty years. He had a prime opportunity to ask for help if IBM warned him four months before his termination. Only when fired does he claim ADA protection.
And let's not forget that the ADA places the burden on the employee to ask for a reasonable accommodation for a disability.

The onus was not on IBM to ask Pacenza if he had a sex-based disability that needed accommodating. (If IBM had identified him as potentially disabled and inquired as to whether he was in need of help, perhaps his lawyer would have filed what's known as a "regarded as" ADA claim, but that's another column for another day.) If Pacenza was warned and he didn't make a peep about needing help, IBM was entitled to assume his bad boy behavior was just that -- an idle employee breaking company rules. Even if he wasn't warned, given the fact that IBM offers treatment to substance addict employees, Pacenza arguably had no reasonable basis to believe that a request for help from IBM would fall on deaf ears or cost him his job.

In short, I see no ground to excuse Pacenza from the burden of seeking out a reasonable accommodation for his purported disability. Moreover, IBM was entitled to terminate Pacenza for his illicit internet behavior regardless of whether he had been previously warned. It may open the company up to potential liability if IBM's usual protocol is to warn before firing, but employers are not liable simply because they fail to follow internal policy. There must be something more than the mere inference of possible wrongdoing.

Pacenza also claims that his termination hints at age discrimination because he "could have retired in a year." This argument holds more water if Pacenza was not warned than if he was warned as IBM claims, but this argument stinks either way.

Why would IBM expose itself (no pun intended) to potential liability to squeeze out an employee who might be gone in a year (unless IBM provides a special retirement package, but it's doubtful that IBM -- with its thousands of employees -- would consider avoidance of Pacenza's retirement package at a $65k annual salary sufficient incentive to terminate him wrongfully. Plus, the Age Discrimination in Employment Act covers employees 40 years of age and older. IBM hired Pacenza when he was 36. Retaining him as an employee for 19 years, until he was 55 (15 years after his ADEA protection began) hardly suggests age discrimination.

Pacenza noted that he would have understood being disciplined for his conduct, but that termination was unfair. This statement suggests his claim is a sham. If Pacenza is disabled under the ADA, it would have been unlawful for IBM to take any adverse employment action on the basis of his disability -- whether discipline, termination or something else. Pacenza's position suggests that his chat room conduct graduated to "disability" only when the stakes were high enough or when his lawyer thought of it.

I suppose Pacenza's claim is a natural mutation of the workplace-stress-as-disability claims that began in the late 90s (from which the courts by and large have mercifully spared us).

But please. Somebody put a tent on this circus (or hit the escape key).

Labels: ADA, Sex, workplace

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