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A recent Nova Scotia labour arbitration decision suggests that
employers may not have to accommodate employees who have a
medically diagnosed sex addiction where behaviours associated with
such an addiction clearly justify discipline or termination.
In Unifor, an employee was the subject of several
complaints from coworkers due to regularly masturbating in a
bathroom cubicle of his workplace. After warnings, the employee
continued the behaviour, and was fired.
The union, on behalf of the employee, commenced a wrongful
termination grievance. In support of his case, he provided a report
from a doctor who diagnosed him with a sex addiction. The doctor
listed a number of symptoms that, in his view, amounted to a sex
addiction:
"Loss of Control" – increased
frequency, duration, or depth of involvement in sexual acting out
behaviour indicating a possible loss of control within or between
sessions.
"Craving" – a strong desire to
participate in sexual acting out behaviours, such as pornography,
sexual contact, flirtation, sexting, video chat, phone
conversation, masturbation, etc.
"Threat to Life Roles" –
Repeated participation and commitment to sexual acting out despite
recurrent social or interpersonal problems or costs – e.g.
Conflict at home or at work as a result of sexual acting out or the
costs in time and energy of carrying out and keeping up the
deception used to hide the behaviour.
"Negative Mood" – using sex or
sexual acting out behaviour to alleviate negative mood states,
stress, tension, or irritation.
However, during cross-examination, the doctor admitted that
there was no standard list of symptoms attributable to sex
addiction. He described how he had taken symptoms of general
addiction and then modified them for sex addiction.
The arbitrator concluded that the doctor's assessment of the
employee's sex addiction was problematic primarily because (a)
sex addiction is not significantly medically or scientifically
recognized; (b) the doctor's stated symptoms were too general
and vague to necessarily be indicative of a sex addiction, if such
a condition exists; and (c) the symptoms described by the doctor
were largely subjective and/or represented his own opinions rather
than being some kind of recognized test.
The arbitrator, in the end, was not convinced sex addiction was
a recognized condition that amounted to a disability, and thus the
employer had no duty to accommodate the employee by being accepting
of the behaviours which stemmed from his purported addiction. The
termination was therefore found to have been justified.
What does this case tell us?
Although this is a Nova Scotia arbitration decision, and thus is
not binding on Ontario arbitrators, this case nonetheless suggests
that adjudicators may not be open to recognizing non-scientifically
recognized forms of addiction, such as sex addiction, as legitimate
disabilities requiring employer accommodation.
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