It is unlawful for employers in Canada to discriminate on the basis of disability. Not only do employers have a duty under human rights legislation to accommodate their employees’ disabilities, they must also create a workplace free of harassment on prohibited grounds, including disability.  Employers that fail to fulfill these duties expose themselves to significant liability for general damages for injury to a disabled employee’s dignity, feelings or self-respect, and in some cases, for punitive damages.

A recent labour arbitration case in Nova Scotia, UNIFOR, Local 2215 v I.M.P. Group Limited, 2019 CanLII 42096 (NS LA), considered whether an employee who masturbated while watching pornography in a workplace bathroom stall had a sex addiction, and whether sex addiction is a disability that employers must accommodate.  In addition, it considered whether, alternatively, the employee’s behaviour warranted discipline up to and including termination.

Background

The employee had 18 years’ service as an aircraft log controller. When hired, he was provided with the Employer’s Code of Business Conduct (Code) and the Human Resources Policy and Procedures Manual (Manual).  Both prohibited harassment of others, which was defined as, “any behaviour, often recurrent in nature, which negates an individual’s dignity and respect to which they are entitled because the behaviour is offensive, embarrassing or humiliating.” 

One of the employer-operated facilities was a hanger space that accommodated aircraft, offices, and employee washrooms.  In 2016, the employer received complaints that the employee was breathing heavily and acting erratically in a stall in the washroom, when co-workers were in stalls beside him.  In a meeting, a manager advised the employee of these complaints.  The employee was encouraged to contact Human Resources if there was a medical reason for his conduct. 

In 2018, co-workers made similar complaints. Following an investigation, another meeting was held and this time the employee was specifically advised that the meeting concerned masturbation in the workplace.  The employee admitted engaging in that conduct and watching pornography in the washroom stall.  The employee was referred to a psychologist who expressed the opinion that the employee had a sex addiction. The employee was terminated for just cause.

The Union’s Position  

The union argued the employee’s conduct could be excused because it was a disability caused by sex addiction.  

The Arbitrator’s Decision  

For the following reasons, the arbitrator decided that the employer had just cause to discipline the employee and terminate his employment:

Sex Addiction

The arbitrator noted that after reviewing the union’s expert’s credentials, report, and testimony, he was not persuaded that the expert was qualified to provide an opinion as to whether sex addiction existed as a recognized condition or disability or, if it did, to determine that the employee suffered from it.  Furthermore, the arbitrator indicated that the expert’s conclusion that the employee suffered from sex addiction was problematic because, among other things, sex addiction is not a condition generally recognized by an accredited professional body such as the American Medical Association, or the Diagnostic and Statistical Manual of Mental Disorders (DSM).  Moreover, the arbitrator’s view was that even if a condition called “sex addiction” existed and the employee suffered from it (which he was not persuaded was the case), it did not disable the employee as it did not affect his ability to perform his duties.  Accordingly, the arbitrator decided the employer did not have a duty to accommodate.  

Discipline

The arbitrator noted that after the 2016 meeting with the manager, the employee understood that:

• The employer had become aware of his sexual activity in the washroom;

• Other employees had heard him, were disturbed, and complained to management; 

• If there was a medical reason for his conduct he should do something about it; and

• It was inappropriate for him to continue this conduct and he ought to stop. 

However, the employee did not stop.

The arbitrator recognized that it is a general social norm that sexual activity is conducted in private.  He noted, however, that the employee’s sexual activity was not in private and thereby caused embarrassment and distress to co-workers, and that the employee continued that activity even after being warned.  The arbitrator concluded that this constituted harassment under the employer’s Code and Manual and, accordingly, discipline was warranted.

Termination

In considering whether the employer breached the principles of progressive discipline, the arbitrator stated that while progressive discipline is usually appropriate, it is not an invariable rule that must be followed in all cases. Furthermore, he noted that although the 2016 meeting was non-disciplinary because no discipline was imposed, it satisfied the principle underlying progressive discipline as it was, “timely communication of an employer’s expectations and a warning of consequences”; furthermore, the employee appreciated the seriousness of his misconduct.  Accordingly, the arbitrator was persuaded that the employer had just cause to terminate.     

Bottom Line for Employers 

This case is important for three reasons. First, it establishes that sex addiction is not necessarily a disability that employers have a duty to accommodate under Nova Scotia’s human rights legislation; it remains to be seen whether this approach will be adopted in other provinces.  Second, it establishes that it is appropriate for an employer to discipline an employee who engages in sexual conduct in the workplace and in breach of the employer’s polices, especially when it causes embarrassment and distress to co-workers and constitutes harassment.  And finally, the case establishes that should an employee not heed the employer’s warning that such sexual activity in the workplace must be discontinued, the employer is justified in terminating the employee for just cause.     

This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.