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Can porn surfing be a ‘disability’? Lessons from the IBM case

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in Discrimination and Harassment,HR Management,Human Resources,Leaders & Managers,Management Training

Each year, employees spend hundreds of hours of “work time” checking their personal e-mail, the weather, sports scores or the latest Web sites. Although hardly productive, these minor distractions pale in comparison to some of the more dangerous activities in which some employees engage.

When employees use their work computers for inappropriate purposes, such as scouring the Internet for pornography, interacting with minors for sexual purposes or transmitting pornographic images, they violate the law and put their employers at risk.

Courts consistently have affirmed employer rights to monitor and limit employee Internet usage when on company time or using company equipment. Employees can’t have any expectation of privacy on their workplace computers.

Stress-triggered ‘addictive’ action

To see the potential risks—and the right way to handle them—consider this recent New York case:

James Pacenza was a model employee for IBM in New York for many years. But in 2003, a co-worker reported that Pacenza was downloading porn on his work computer. When his supervisor confronted him, Pacenza admitted it and told his supervisor he had a “problem” with pornography and Internet chat rooms. His supervisor offered to obtain help for him, but Pacenza refused.

The supervisor informed him that if he were caught again, he could be terminated. Four months later, Pacenza was caught again and terminated. Pacenza sued IBM, claiming the company violated the ADA (because his porn surfing was caused by a “disability”) and the Age Discrimination in Employment Act (ADEA).

In his complaint, Pacenza claimed he suffered from post-traumatic stress disorder that started with his military service in Vietnam. The stress disorder, he claimed, manifested itself in addictive behaviors, specifically attending Internet chat rooms and downloading porn. IBM has moved to have the case dismissed.

Outlook: Most likely, IBM will win the age-discrimination claim. Enforcing company rules against illicit Internet usage had nothing to do with Pacenza’s age.

The company’s Internet usage policy stated in part, “it is inappropriate to use IBM systems to visit Internet sites that feature sexual content, gambling, or that advocate intolerance of others. It is also inappropriate to use them in a manner that interferes with your productivity or the productivity of others.”

Pacenza’s disability-bias claim may be a closer call. IBM argued that the Diagnostic and Statistical Manual of Mental Disorders, the psychiatric disorder “bible” used by mental health professionals, does not list pornography addictions among its many diagnoses. And Pacenza’s claimed disability, post-traumatic stress disorder, doesn’t seem related to the Internet usage.

Big Blue’s bright spots

IBM’s handling of the situation can serve as a lesson for other employers. When Pacenza said he had a “problem,” the supervisor offered to help. By refusing the offer, Pacenza actually refused to participate in the “interactive accommodation” process required by the ADA.

Second, the company acted quickly to deal with the situation. This is particularly important in light of a recent decision in neighboring New Jersey in which an employer was found liable for an employee uploading child pornography, even though the practice was against company rules (see box below).

Employees visiting Internet chat rooms or visiting porn Web sites are not only wasting company resources, they potentially may be breaking the law. Employers must move quickly to stop the behavior.

Many software products on the market can block employee access to offensive sites. That can eliminate the most egregious actions, but employers ultimately must decide what approach is right for them.

What should employers do?

To avoid liability and protect the work force, employers should:

  1. Establish a well-publicized Internet usage policy that applies to all employees. Make sure that all employees sign the policy. The HR department should maintain these signed documents.
  2. Establish a chain of command for complaints. Upon receiving complaints, document the actions taken. Investigate all claims and take corrective action when it is appropriate.
  3. Purchase software that allows management to effectively monitor employee Internet usage.
  4. Allow workers some leeway in searching the Internet to maintain good worker morale, but try to avoid abuse of the privilege.
  5. Train and retrain both supervisors and workers on the company’s Internet privileges.  

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