A recent arbitration award in Nova Scotia has concluded that sex addiction, which is sometimes invoked by employees to justify inappropriate behaviour in the workplace, does not constitute a disability. Consequently, it is not possible to argue that it is a mitigating factor or that it triggers the employer’s duty to accommodate.
In this matter, the facts giving rise to the employee’s dismissal are rather singular: he was given to noisily masturbating in a washroom cubicle in the workplace, within earshot of his co-workers.
He was initially spoken to by a supervisor following several employee complaints to management, but this did not have the desired effect, as he resumed the practice shortly thereafter.
After a second round of complaints he was dismissed. No medical excuse was offered at that time by the employee, who merely contended that what he did in a washroom cubicle was nobody’s business but his own.
It was not until the matter came before the grievance arbitrator that sex addiction was invoked to explain the grievor’s behaviour, and the argument made that the employer had a duty to accommodate his addiction. The arbitrator gave short shrift to this argument, concluding that there was no evidence in the medical literature that sex addiction was a recognized disorder, and that the union’s purported expert did not have sufficient credibility to give an authoritative opinion on the matter. In closing the arbitrator stated that even if it had been established that the grievor’s compulsion was a medical disorder, there was nothing to indicate that it had any impact on his ability to come to work on a regular basis, duly perform the tasks and duties of his position and generally be a productive employee. Thus, even had it been established that he was addicted to sex, this would not have triggered the employer’s duty to accommodate.
Over the last few years in Quebec, decisions on inappropriate behaviour of a sexual nature in the workplace have generally concerned, apart from cases of sexual harassment, the viewing of pornography during working hours on devices provided by the employer.
The obviously unacceptable nature of this type of behaviour, plus the theft of company time involved, are often sufficient to justify severe disciplinary measures, up to and including dismissal.
While the facts of this particular case may seem bizarre, the decision is nevertheless relevant as it reminds us that sex addiction in any of its forms (masturbation, viewing pornography, etc.) is not recognized as a medical condition or disability.
Short or mid-term developments?
It is not inconceivable that, on the basis of solid scientific evidence bolstered by the credible testimony of experts, a tribunal might decide that an employee does indeed suffer from such an addiction and thus has a possible ground of defence. However, in order for an employer to be obligated to accommodate an employee on that account, it still must be shown that the addiction materially affects the employee’s ability to perform the tasks of his or her position.
Until that happens, Quebec employers can take comfort in knowing that inappropriate conduct of a sexual nature does not have to be tolerated in the workplace, and that severe disciplinary measures, including dismissal, are perfectly legitimate in such circumstances.