Saturday, 14 March 2015

Addicted to Love – Is an Affinity for Internet Pornography a Disability?

In 1986, English rocker Robert Palmer suggested that you might as well face it, you’re addicted to love. What if, however, rather than being addicted to love, one is “addicted” to watching others make love, on the internet, using an employer-provided laptop? Has “addiction” to internet pornography been accepted by a Canadian human rights tribunal as a "disability"?

As an aside, the image above is taken from an advertising campaign for what is touted as the world’s largest online pornography site. More information on the advertising campaign can be found on AdWeek’s website here: AdWeek May 20, 2014, which is obviously safe for work.

Pornography and the Workplace

This blog has previously looked at the intersection of pornography and workplace resources in the post Supreme Court of Canada: Employees’ Rights to Privacy with Work Equipment. As was noted in that post, in the case of R. v. Cole, 2012 SCC 53 the Honourable Justice Rosalie Abella, albeit writing in dissent on the substantive issue, commented as follows:

[109] Workplace computers are increasingly given to employees for their exclusive use, and employees are allowed — and often expected — to use them away from the workplace for both work-related and personal use. And as more data is stored in the cloud and accessed on both workplace and personal computers, the ownership of the device or the data, far from being determinative of the reasonable expectation of privacy, becomes an increasingly unhelpful marker. In deciding whether to exclude evidence illegally seized from workplace computers, this blurring of the line between personal and workplace usage should inform the analysis.

But what about porn at work? In Cole the issue concerned the admissibility of evidence in a case of child pornography; it was not, strictly speaking, an employment case. At the beginning of this post the question posed was whether an addiction to internet pornography has been accepted as a “disability” by any Canadian human rights tribunal.

The answer to that question would appear to be “no.” That is not to say, however, that the argument has not been tried.

Human Rights Arguments

A review of CanLII would appear to demonstrate that no one has yet taken the position, before a human rights tribunal, that termination for watching pornography at work is a violation of the employee’s right to be free from discrimination on the basis of a disability. However, in the case of Ontario Public Service Employees Union v. Ontario (Natural Resources), 2008 CanLII 32797 (ON GSB) that was one of the arguments advanced before the Ontario Grievance Settlement Board.

OPSEU v MNR concerned a case where an Ontario Ministry of Natural Resources official was terminated for, amongst other things, using his Ministry computer to view pornography in large quantities and wide variety, including teen pornography, child erotica, and child pornography. His union advanced the argument that he suffered from a disability and that the same predisposed him to watch pornography at work. In rejecting that argument adjudicator Richard L. Jackson commented as follows:

In view of all the limitations and qualifiers associated with Dr. Clyne’s three-factor hypothesis, her status as a psychologist (not a psychiatrist), and her limited knowledge of undercover work, the fact that the evidence indicates that the grievor didn’t actually do a great deal of undercover work, together with some concern that the grievor may not have told Dr. Clyne the complete truth, it would be very difficult to find that the grievor was disabled.

In reaching his decision adjudicator Jackson relied on the findings in another case involving an employee discharged for watching internet pornography at work, Re Seneca College and OPSEU (2002), 109 L.A.C. (4th) 334 (Carter), in which Professor Donald Carter wrote the following:

The first question we must answer is whether the grievor was suffering from a disability within the meaning of the Human Rights Code at the time of the activities that led to his discharge…The medical evidence presented to us, however, does not support a conclusion that the grievor was suffering from any form of medically recognized mental disorder. The union argued that the grievor was suffering from a type of impulse control disorder that took the form of pathological attraction to internet pornography. The evidence, however, does not support this conclusion. The grievor through his own testimony indicated that he could exercise self restraint if he chose to do so….

Commentary

If there is one thing I can take away from the decisions that have considered this subject it is that the limiting factor at this point appears to be the presentation of medical evidence. Where adjudicators have considered the issue, the case appears to turn on the presentation of sufficient medical evidence. The same seems to suggest that the decision makers are not discounting the possibility that one could be addicted to internet pornography, only that they have not yet received sufficient medical evidence proving that point.

The failure to present sufficient medical evidence has been a recurrent theme in employment-law cases. For example, this blog recently looked at the case of El-Hawary v. 1202827 Ontario Inc, 2014 ONSC 5265 (CanLII), in the post Moral Damages for Manner of Dismissal - Meeting the Evidentiary Burden in which the Honourable Justice Ray of the Ontario Superior Court of Justice sitting at Ottawa, declined to award moral damages after receiving what the court decided was insufficient evidence on the point.

What these cases suggest is that if the employee wishes to advance such an argument very strong and convincing medical evidence will have to be marshalled. We have not seen the argument succeed yet, but that is not to say that we may never.

Takeaways for Employees with Labour Pains

The takeaway from this post for employees with labour pains is that if one wishes to advance the argument that he or she is disabled by an addiction to internet pornography and that being fired for watching pornography at work is a violation of one’s human rights, that employee better be prepared to demonstrate, amongst other things, excellent medical evidence proving the disability. The case does not appear impossible, but it does appear difficult.

If you have been fired from your job in Ontario, whether for watching pornography at work, having a disability, or otherwise you should probably speak with a lawyer before doing anything else. The professional, experienced and cost-effective employment lawyers for employees at Ottawa's Kelly Santini LLP would be happy to be of service to you.

Takeaways for Employers with Labour Pains

The takeaway for employers is that there is no silver bullet to termination; not even, it would appear, finding child pornography on an employee’s computer. Human rights legislation is broad and expansive. The law does not permit or condone such behaviour, nor does it expect employers to allow employees to access illegal materials at work. I am not suggesting that employers must or even should permit such things to take place. What I am saying is that before making decisions about firing employees for issues that an employer may disagree with on a moral level (and here I am not referring to child pornography, but rather internet pornography in general), employers would be prudent to consider the usual human rights considerations regarding addictions and disability, in the same way the employer would approach an employee with an alcohol dependency.

If you are an employer in Ontario and find all of this a little incredulous, you should probably be speaking with an experienced employment and human rights lawyer who can guide you through the system. It can be easy and expensive to get this wrong, even on something as incredible as an employee using your resources to watch porn on your dime. If you are such an employer and if you are looking for such assistance, the professional, experienced and cost-effective employment lawyers for employers at Ottawa's Kelly Santini LLP would be happy to be of service to your business or organization.

Contact Me

To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260. You may also use the contact box at the top of this page.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

Sean Bawden, publisher of Labour Pains, can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He is also a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.



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