IBM Sued for Firing Alleged Internet Addict

globring sent us a link to a CNN article covering a trial with a unique defense. James Pacenza, a 58 year old Alabama man, has been fired from his position at IBM for visiting adult sites during working hours. The man is now suing the company for $5 Million, alleging that he is an internet addict. The plaintiff claims he visits these sites as a way of dealing with traumatic stress incurred in the Vietnam War. He claims that while he is addicted to sex and the internet, he never visited adult sites at work. Age-related issues, he says, are the cause of his filing. IBM, on its part, says that Pacenza was warned during a similar incident several months ago. Pacenza denies this as well.

Someone's lying here...

[BTWR]

"He claims that while he is addicted to sex and the internet, he never visited adult sites at work."

The CNN article states that this wasn't his first warning: ""Plaintiff was discharged by IBM because he visited an Internet chat room for a sexual experience during work after he had been previously warned," the company said."

Unique Defense?

[TheGreatHegemon]

It's more like bullshit defense. I wouldn't be surprised if IBM kept logs of their worker activities at work - if he was fired for this incident *after already having been warned once* he wasn't cheated out of his job.

Re:

[Phu5ion]

Well, the servers definitely don't lie... unless he was in a position where he had access to the logs.

Re:Someone's lying here...

[smittyoneeach]

If a tree falls in the forest, is it logged?

Re:

[scoot80]

Only if the admin hears it..

Re:

[MarkRose]

I should have saw that pun coming...

Re:Someone's lying here...

[smittyoneeach]

In a series of log puns, 'saw' was a welcome addition to the scene.

I've got your log right here...

[kn0tw0rk]

just let me unzip it.

Re:Someone's lying here...

[beakerMeep]

Well he denies the previous warning and I imagine the "im a victim of internet addiction" is a little bit of legal smoke and mirrors but it's not impossible for someone with PTSD. Either way though this guy was 6 months shy of retirement and with IBM's track-record of less than perfect dealings with retirees pensions, I think there is more to this story than we can gather from the CNN article. I think it would be interesting to know if someone reported him because they were bothered by what they saw on his screen or if some HR manager asked IT to troll through his internet connection logs looking for something incriminating.

Re:Someone's lying here...

[skoaldipper]

Like you inferred, I believe it mainly is age discrimination here. His lawyer even cites two people making snu-snu on a desk at IBM and they were just transferred. Also, I think you're right about them trolling his station, for the simple reason that before stomping off to a manager, common decency says you (the co-worker) turn off the monitor for him and have a talk with him personally. And, as this plaintiff cites, after 19 years of service to IBM, you would think his superiors would make every effort possible to salvage this man's reputation with a paid vacation for clinical counseling. This does smack of age discrimination. It really is in IBM's interest to settle this case. I wish the Vet well.

Re:

[penguinbrat]

The argument with the couple snu-snu'ing isn't a good one since you are stopping the 'issue' by separating them, on this guy you can't solve the issue so easily because he is getting his snu-snu from the same tools he is expected to use for work. Although, at 19 years of employment and months away from retirement (don't you retire at 20yrs?) I do agree with the notion that the manager should have been more proactive, at least making it VERY clear what the out come will be if he doesn't snu-snu at his own ho

Re:Snu snu??

[Skater]

I think snu-snu is just sex. The punishment was "death by snu-snu". That implies that snu-snu does not always involve death, sort of like how "death by misadventure" doesn't imply that misadventure always leads to death.

(That's one of my favorite episodes.)

Re:

[hedwards]

I don't see the connection between his surfing of sexually explicit chat rooms and PTSD. It seems somewhat tenuous that there is an apparent failure to accept that some links are NSFW and others are not. The fact that there appears the ex employee was deliberately looking for those sorts of sites on company time made him a liability whether or not he had a disability. It is not usually the case that individuals are granted accommodations which could result in employer aimed sexual harassment lawsuits. Obv

Correction

[beakerMeep]

Accoring to the article he was discovered by a fellow employee but I think questions still remain and the case isnt as open and shut (and funny) as it first appears.

Re:Someone's lying here...

[v1]

While it's quite possible his age had something to do with this, it's also very likely he is guilty as charged. It would be a sensible thing for an employer to put a close eye on someone approaching retirement with pension, in the hopes that they screw up enough to justify termination, this saves the company money. This is not necessarily a bad thing, and sorry but PTSD does not justify surfing porn at work any more than forgiving turrets at mcdonalds. Crackheads are not allowed to smoke up at work just because they are crackheads. If you have a behavioral disorder you need to keep it in check while you're at work, or you need to find a different job that is known to be tolerant of your behavioral problems. I suppose another parallel we could draw is someone spending an hour a day at work on an online casino, and claiming its OK because they are a gambling addict.

Bottom line, if you are 6 mos from retiring with pension you should know to be on your best behavior. If you walk out the door with a company stapler, i don't care if you are a recovering klepto, out you go. (I consider deliberately wasting company time to be theft)

I hope this fellow loses his case and gets to pay IBM's attorneys.

Re:Someone's lying here...

[Manchot]

This is not necessarily a bad thing

How can that not be a bad thing? If a company is more critical of an employee months away from retirement, that is by definition age discrimination. Sorry, but saving a few bucks is not justification for prejudice in the workplace.

Re:

[UbuntuDupe]

You miss the advantage of DB pensions, the defined benefit.

And you're mssing the disadvantage of DB pensions, which is that this benefit is pretty ill-defined.

If I make it 20 years, I won.

More like, "If your employer doesn't fire you to dodge paying benefits when you inevitably get to the point where the pension is worth more than the value of your additional labor AND the pension is fully funded and never raided", you won. Looking at the last 30 years, those are bigger if's than you may have thought.

Now,

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[account_deleted]

Comment removed based on user account deletion

Reminds me of an incident that I once dealt with.

[Anonymous Coward]

This reminds me of an incident I once saw while working IT at a fairly major firm.

One of the VPs called us into his office to report a problem with his computer. Apparently somebody had ejaculated all over his keyboard. He wanted us to get rid of the soiled keyboard, and bring him a new one. Not really being in a position to ask questions, we just did what he wanted.

About a week later, the same VP is on the phone, telling us that there's more ejaculate on his keyboard. So we bring him a new keyboard, yet again.

Another week or so later, we get a third call from the same VP. This time we went to the President of the firm, and reported this incident to him. He assured us he would look into it. I'm not sure exactly what the outcome was, but the VP ended up leaving his job soon after. According to some of the secretaries near his office, there was a pretty serious confrontation between him and the President of the company. One of the secretaries quoted part of the VP's yelling: "Yes, I got my sperm on the keyboard! It's because I have a fucking masturbation addition!"

Re:Reminds me of an incident that I once dealt wit

[PopeRatzo]

About a week later, the same VP is on the phone, telling us that there's more ejaculate on his keyboard

So many jokes come to mind that my head just exploded. Is there somebody I can sue?

Re:Someone's lying here...

[adisakp]

Even if he never visited adult sites at work, if it affected his ability to work, he should be terminated. If you have an alcoholic who is so affected by his drinking that he becomes unproductive, you should fire them. If they come in with a hangover every day and have zero productivity, that's wrong even if they've never had a drink at work.

Re:

[Brickwall]

If you have an alcoholic who is so affected by his drinking that he becomes unproductive, you should fire them.

Right. And if someone has cancer, and is exhausted and nauseous after receiving their chemotherapy, you should fire him too?

Most medical professionals consider alcoholism a disease. I would expect a firm to assist the employee with treatment and support for some period of time. If the employee continues to abuse drink, it's not that difficult to set up a testing program. Long term drinkers ca

Re:

[Lord Kano]

The CNN article states that this wasn't his first warning: ""Plaintiff was discharged by IBM because he visited an Internet chat room for a sexual experience during work after he had been previously warned," the company said."

Perhaps they considered a meeting from 8 years ago about the zero-tolerance policy to be a previous warning.

LK

Re:What about visiting Bible sites or /.?

[StarvingSE]

Because you are using the company's resources, and that means you must follow their rules. If you use IBM's computer, and use their internet connection during time they are paying you to work, then they had every right to fire this guy if he was visiting porn sites. I'm sure there is an employee handbook detailing what is considered appropriate computer use at work. Every employer I've worked for has made it pretty explicit.

Its just like you can't use racial slurs, sexually charged language, and other offensive things at work. Someone could be walking by, see your porn on your workstation, and be offended.

Re:

[ChameleonDave]

So the boss is the boss, right?

By your logic, the company could also legitimately discriminate on the basis of politics, colour or religion. After all, it's their computer, right?

Hmm, our logs say you visited a Hindu website last month. Sorry, this is a Lutheran workplace; you're fired for abuse of work resources.

If an employer wants to make a rule that work computers can only be used for work, then fine. If an employer wants to make a rule that you can't stop work to read a newspaper at work, th

Re:What about visiting Bible sites or /.?

[Tim C]

By your logic, the company could also legitimately discriminate on the basis of politics, colour or religion. After all, it's their computer, right?

No, because there are laws against discriminating against people on those bases. There is no law preventing you from discriminating against someone based on whether or not they visit porn sites, however, especially if they do it with your resources.

But if they start applying these unevenly, allowing employees to waste time all day on personal e-mails, irrelevant websites and tabloid newspapers, and then only jump on the employee visiting a site or reading a paper they don't like, then that's illegitimate control.

Not if they're up front about it. If they're going to be "uneven" about things, then as long as they declare an exhaustive list of categories of activity that will get you fired, I don't see how you can have a problem with it. If the computer use policy says "no porn" but doesn't say "no personal emails" (and I'd be amazed if it doesn't say something about it, possibly allowing "reasonable use" or similar) then personal email are fine and porn isn't and that's that. There's no guessing, there's no unfairness - everyone knows where they stand. It's not uneven when the rules apply equally to everyone.

Re:What about visiting Bible sites or /.?

[Anonymous Coward]

Almost anything taken to an extreme can become illogical. The issue here is about IBM's rules for computer use.

Let's not speculate about what could be done: Read the actual rules. We sign a contract every year that we will follow IBM's Business Conduct Guidelines [ibm.com]. If you're curious, the short section on information and communication systems [ibm.com].

I think the rules are very reasonable. Does anything in there strike you as unreasonable?

Re:

[Anonymous Coward]

Its just like you can't use racial slurs, sexually charged language, and other offensive things at work. Someone could be walking by, see your porn on your workstation, and be offended.

This kind of shit disgusts me. I started working in a steel mill in Buffalo in the 1950s. You should have heard some of the stuff that basically everyone there would say. It was some of the raunchiest, dirtiest, filthiest motherfucking stuff that you could ever imagine.

But you know what? Nobody went stupid about it, and got "

Re:

[westlake]

I started working in a steel mill in Buffalo in the 1950s. You should have heard some of the stuff that basically everyone there would say. It was some of the raunchiest, dirtiest, filthiest motherfucking stuff that you could ever imagine.

The mills were an all-male work force. The mills are gone.

The world changes---and in looking back, sometimes our memories betray us.

Re:What about visiting Bible sites or /.?

[Martin Blank]

Allowing employees to visit adult sites may create a hostile work environment and sets you up for a lawsuit from other employees who might see it and be offended. You may be able to get away with it when it's you and a couple of buddies starting up, but when your profits are in the billions, you're a giant stack of cash waiting for the first person to claim sexual harassment.

The flip side to that argument.

[EmbeddedJanitor]

Just changing two words: "Allowing employees to visit religous sites may create a hostile work environment and sets you up for a lawsuit from other employees who might see it and be offended. You may be able to get away with it when it's you and a couple of buddies starting up, but when your profits are in the billions, you're a giant stack of cash waiting for the first person to claim religous harassment."

Re:

[jrockway]

Porn is probably more offensive than religion because someone from a distance can easily discern porn on your screen. It's mostly visual, after all. A religious website is just text, like your spreadsheets, emacs buffers, etc. It looks like work. People fucking on your screen is clearly not work.

Also, people are conditioned to think that "sex is bad OMG something must be done", so that's playing against you too.

I think it's generally understood that looking at porn at work is going to get you in trouble

Re:

[Miguelito]

Why should compamies feel that they should be the moral guardians of their employees?

Hah. Companies don't have rules against things like adult sites because they want to be moral guardians, they do it because they're afraid of being sued. You don't have rules against visiting such sites during the day and someone else who IS offended by the stuff will sue for something like "creating a hostile workplace" if/when they see it on someone else's screen.

Most companies probably couldn't care less if it weren't

Re:What about visiting Bible sites or /.?

[nwbvt]

"what gives any company the right to discriminate?"

The federal government gives them the obligation to discriminate. If the manager hadn't taken action, the employee who had caught him could have sued for sexual harassment, arguing that the sexual content on the computer made for a hostile work environment.

Sigh.

[Anonymous Coward]

If people would actually take responsibility for their actions then this country might not be so bad.

Re:Sigh.

[beakerMeep]

Thanks for the insight, Anonymous Coward.

Re:

[Harmonious Botch]

Ok, your friend got killed. We're sorry about that. Really. But it was 38 years ago, ferchistsake! How long does it take for a man to adjust to a misfortune and stop being a victim of it?

My Rights Online?

[Kohath]

IBM has been violating my rights to have a job there. Who knew?

This has apparently been going on a long time, since I've never worked at IBM.

I think IBM owes us all some back pay.

Re:

[LoRdTAW]

Apparently it is: http://en.wikipedia.org/wiki/Internet_addiction [wikipedia.org]

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[shmlco]

Usually when you focus on some self-gratifiying behavior to the detriment of everything else (job, spouse, family, friends, etc.) they'll slap the "addiction" label on it. Such destructive behaviors can be sex, gambling, video games, and yes, the internet.

WTF?

[TheRealMindChild]

The only way I see ANY logic in this, is if Internet Addiction is considered a disability.... which causes you to look at porn... right.

Maybe I can get away with classifying my need to punch stupid people in the face as a disability. After all, I shouldn't be fired for that :I

Re:WTF?

[Erwos]

I was under the impression that addiction to pornography is a real, recognized psychological problem. He could very well be telling the truth, in a way.

Of course, either way, this guy is screwed: it's not illegal discrimination to fire someone for mental issues, especially when they affect work performance or atmosphere. The whole point of anti-discrimination laws is to stop people from firing others for stuff that doesn't affect those things.

Re:

[shmlco]

Sounds like his "logic" is that his addiction is a disability, and it is illegal to discriminate against someone solely on the basis of a disability.

Re:

[nebaz]

illegal to discriminate against someone solely on the basis of a disability
IANAL, But I can't imagine it would be against the law to discriminate against someone solely on the basis of a disability if it could be proven that it is detrimental to the job performance. Chauffers must be able to see, for example.

Re:

[evanbd]

As long as it's actually critical to the job, you're right. You can't fire (or even fail to hire) someone because they can't use the stairs into the building; but if the job description involves, for example, lifting and moving things that can't be done in a wheelchair, then someone in a wheelchair is legitimately unsuited for the job. There's also language about reasonable accommodations -- if you as an employer can make reasonable changes to the facilities, etc. then you are obligated to do so.

One exa

Re:WTF?

[thePowerOfGrayskull]

Unless it can be done with a "reasonable accomodation". Obviously you cannot accomodate a blind chauffeur but you can fairly easily accomodate someone with a "pornography addiction".

What, with Vasoline and a come-rag?

Re:WTF?

[Lehk228]

so is alcoholism but if i go to work drunk i would be fired.
you can't be fired for being addicted to porno

you can be fired for looking at porno on the job

Re:

[DocJohn]

Addiction to pornography (or the Internet) is not a recognized mental disorder, nor is there any diagnosis for it that an insurance company would reimburse you for. While the media continues hyping these things, the science and research still says these are not legitimate or recognized separate disorders.

So this guy doesn't have a leg to stand on from the mental health standpoint. If he has PTSD, that's a separate issue, but it certainly wouldn't be a legitimate reason for viewing porn at work.

Sounds like h

Re:

[MindStalker]

Well given diabilities deserve special accomidations. There is no reason IBM couldn't have just shut off of heavily filtered his internet especially if he was having trouble controlling himself and asked for help.

Pulease

[Oligonicella]

He says he's "an Internet addict who deserves treatment and sympathy rather than dismissal".

Sounds like he indeed visited during work hours or he wouldn't have had a reason at all to say this. It's IBM's system and rules. Tuff if you can't keep your hands (mental or physical) out of your pants at the job.

Re:

[couchslug]

The plaintiff makes veterans look bad, and as a vet he should fscking well know how to obey orders.

As a G.I. soon to be in the civilian sector, woe betide any vet who tries to bullshit me about their problems.
If they have PTSD I will offer to go WITH them to the local VA and make damn sure they get help. If they are lying, that'll get documented too.

Fails the straight face test

[dkleinsc]

"Your Honor, IBM fired me because they failed to give me the right to watch porn rather than working while on the job." Seriously, no sane judge is going to allow that to get by the inevitable dismissal motion by IBM.

Re:

[beakerMeep]

Not only did you misrepresent the defense of the man stated in the article (it was sexually explicit chat rooms, not pr0n) but im glad our legal system doesnt have a "if it fails the straight face test" clause.

Re:

[beakerMeep]

Well I think your right in that IBM has a legal advantage here but I feel bad for this guy. It's pretty rough to lose a pension for entering a chat room after 19 years of service. It may not be that he wasnt doing his job either, because he may have done it durring lunch break. The point I was making is that, on the surface i thought this was pretty funny too, but it's important not to jump to conclusions based on how rediculous a case sounds. I think the PTSD is legally a weak argument but if IBMs polic

Re:

[Pseudonym]

I realise that this is slashdot, and it's a bit much to ask people to read TFA, but you didn't even read the summary:

He claims that while he is addicted to sex and the internet, he never visited adult sites at work. Age-related issues, he says, are the cause of his filing. IBM, on its part, says that Pacenza was warned during a similar incident several months ago. Pacenza denies this as well.

Let me repeat that: He claims that he did not visit adult sites at work.

Now it may still be a TOS violation if he

Re:Fails the straight face test

[StarvingSE]

Companies fire people all the time for addiction. Why else would they make you take drug tests pre-employment and sometimes during employment? If you are addicted to drugs and show up to work high, you're gonna get fired. Why should it be different if you're addicted to porn and look at it at work, on the company's computer?

Blatant nitpickery

[Robotech_Master]

Technically, it's not "a unique defense." Pacenza is the plaintiff, not the defendant.

Nitpicks matter in the law

[Infonaut]

He is defending his actions that caused him to get fired.

The point of an unlawful termination suit is to show that the employer broke the law. In raising that claim, he is opening himself to attack from the defense, which will point out the legality of their actions by showing that homeboy was doing things he wasn't supposed to be doing.

As long as they were within their legal rights in firing him, the fact that he was traumatized in the Vietnam War or has an addiction to porn don't really matter. My u

BOFH did it first!

[Cyberax]

http://www.theregister.co.uk/2004/07/29/bofh_2004_ episode_24/ [theregister.co.uk]

"I don't actually think you CAN fire me for browsing porn.."

"Why not?"

"Well, I think I'm addicted to porn."

"I beg your pardon?"

"Addicted. To porn."

"You're joking!"

"Oh no. You see I'm fairly sure that the browsing of porn causes the release of testosterone, endorphins or something like that, which in turn causes a pleasure response in the body - or so my doctor will tell me if I ask. I'm addicted to that pleasure response, in much the same way as a drug addict is addicted to the pleasure they obtain from their drugs."

"So you're saying you have no control over your actions?"

"None."

"And you.... Believe that this is somehow the company's problem?"

"Oh no."

"Good."

"No, I think it's the company's fault. It's completely different."

"I think you'll find that to demonstrate fault, the company would have to be aware of a problem."

"They are. I filled out a workplace hazard form about it six months ago."

Just to move away from the precise issue for the

[goldcd]

moment. It seems that the number of things that count as disabilities has become insane.
On the current criteria, I'm slightly bemused as to why 'being thick' isn't allowed to count. It's not your fault, it puts you at a disadvantage, you can't change it etc.
Could anybody tell me why it's OK to discriminate against people being stupid in the workplace, but it's not if the mental/physical disability has a nice name?

Re:Just to move away from the precise issue for th

[AusIV]

I agree. If someone is unable to do their job and unwilling to try to change, I don't think the employer should have to keep paying them. I can understand a requirement that an employer not fire an employee who is going through some legitimate form of rehab for an addiction, but if the employee isn't doing anything about their problem, the employer shouldn't have to put up with it.

Re:Just to move away from the precise issue for th

[ShanghaiBill]

Could anybody tell me why it's OK to discriminate against people being stupid in the workplace

No, it is not okay to discriminate against stupid people, at least in the USA. The U.S. Supreme Court ruled in Griggs vs Duke Power [wikipedia.org] that people could not be hired or promoted on the basis of general intelligence.

Internet Addict?

[nate nice]

Sounds like he's a sex addict! Just because he's using the Internet to fuel his obvious sex addiction doesn't make him an Internet addict. It's like saying someone who uses magazines to get their porn is a magazine addict.

You're not addicted to the medium, you're addicted to the content.

Re:Internet Addict?

[GregGardner]

I'm not an alcoholic! I'm just addicted to using lowball glasses. I'm a lowball glass addict. It's just that my lowball glasses always seem to be filled with bourbon.

IBM is not a good place to work.

[thewils]

Much better is where the boss sends you the porn via email so you don't go having to look for it, and also pays your green fees when it's time to go playing golf.

If you dont have either of the above, consider seeking alternative employment.

Re:

[rajafarian]

That reminds me of when I worked for a national ISP and we had to test parental control software. "Hey, guys, look I can go to Persiankitty just fine!" For a whole day!

Is addiction a valid safety-net anyhow?

[phorm]

I think that there seems to be confusion between addiction and disability. While you might not fire somebody for a recognised disability (and some addictions tend to fall along those categories), I've never heard of having to hold on to somebody because they're addicted.

If that were the case, it would mean that when Bobby and Johnny get caused smoking pot in the back during work hours, or when Sally gets caught with a needle in her veins in the washroom, they could claim that the company could not fire them because they were addicts. I think not.

Re:

[Vegeta99]

I'm a Resident Assistant/Leasing Consultant at the student housing development I live at, and here's the Fair Housing Act standard:

If drug use is current, they are not a protected class.
If drug use is current, but they are enrolled in some sort of drug treatment program, they ARE a protected class, and you cannot discriminate on them.

Re:

[NormalVisual]

On the other hand, is it not perfectly legal to consider someone in breach of their lease if they engage in criminal activity on the premises?

Treatment program

[phorm]

Is there any fine-print on the effectiveness of the program, or how well they follow it? For example if a heroin addict goes to group every Wednesday, but still shoots up every Monday, Tues, Thurs, and Friday during lunch break... is he still protected?

I suppose in this case it would be if the guy goes to Wankaholics anonymous but still sneaks in a quickie at the computer during every lunch break.

This doesn't take into the account that while the guy might have a sex addiction, it does *not* require that

Re:

[Breakfast Pants]

A trucking company can fire a trucker who goes blind and can no longer truck. A company like IBM can fire a guy whose job is to work on a computer all day if he has a disability that only lets him jack-off all day. What's the big deal?

Bullshit

[jjohnson]

This sounds like a bullshit complaint that's about a bitter loser denying reality. Remember, anyone can file a complaint; whether it goes anywhere is what matters, and I doubt this one will. Big companies like IBM have checklists for firing people, and if they're saying they warned him months ago, they've almost certainly got it in writing. They've probably also got logs showing his workstation accessing porn. And as for Internet Addiction, even established addictions don't prevent you from getting fired--being addicted to heroin, for example, won't save your job just because you're legitimately, medically addicted to something everyone agrees is uncontrollable.

Might have a Case with the punishment differential

[dave1g]

Pacenza: Couple who had sex on desk merely transferred

He argues that other workers with worse offenses were disciplined less severely -- including a couple who had sex on a desk and were transferred.

Fred McNeese, a spokesman for Armonk-based IBM, would not comment.

Pacenza claims the company decided on dismissal only after improperly viewing his medical records, including psychiatric treatment, following the incident.

"In IBM management's eyes, plaintiff has an undesirable and self-professed record of psychological disability related to his Vietnam War combat experience," his papers claim.

Diederich says IBM workers who have drug or alcohol problems are placed in programs to help them, and Pacenza should have been offered the same. Instead, he says, Pacenza was told there were no programs for sex addiction or other psychological illnesses. He said Pacenza was also denied an appeal.

Diederich, who said he spent a year in Iraq as an Army lawyer, also argued that "A military combat veteran, if anyone, should be afforded a second chance, the benefit of doubt and afforded reasonable accommodation for combat-related disability."

Re:Might have a Case with the punishment different

[Courageous]

I would have to admit that if one employee views porn at work, and another set of employees FUCK at work, and their treatments by management are starkly different, with this person approaching a big retirement pension, the situation rather does look something like selective preferential enforcement. One of the reasons corporate consul will recommended treating all employees the same and have equitable and equally enforced policy is exactly because disparate treatment makes a good argument for a hidden agenda in court.

C//

Re:

[GryMor]

Makes sense to me. Viewing adult sites at work leaves an electronic trail back to the company, so they have a fiduciary responsibility to their shareholders to stop it. Sex on a desk is only an issue if done in such a way that there is evidence of it having occurred (in view of cameras, in an unlocked or windowed office, in a cube farm...), if the sex act itself was some how unlawfull (non consensual or for money, though there are other options in some jurisdictions) or if the relationship results in a conf

Re:Might have a Case with the punishment different

[www.sorehands.com]

Interesting. Not having a program for "programs for sex addiction or other psychological illnesses" may cause them for problems.
There has been some rulings (in Mass) that said that disability insurance companies can't discriminate between mental and physical disabilities.

Americans with Disabilities Act

[antifoidulus]

Does not cover everything. For example, kleptomania is not considered a "disability" under the act, and I doubt being addicted to the Internet is really much different.

Amazing, I was able to use the mandatory ethics training I had to take at work in a conversation....hooray! Maybe?

If sex addiction...

[Shados]

If sex additiction is a valid argument to raise when you're about to get fired, no men would EVER get fired. And then we'd have issues with equality between sex and blah.

Re:

[Guuge]

Are you suggesting that porn is the only reason men ever get fired?

Looks simple enough

[rueger]

His lawyer ... says Pacenza never visited pornographic sites at work, violated no written IBM rule ...

International Business Machines Corp. ... (says) ... its policy against surfing sexual Web sites is clear. It also claims Pacenza was told he could lose his job after an incident four months earlier, which Pacenza denies.

Seems pretty obvious. If IBM can produce those written policies, and has kept a written record of the previous warnings, Pacenza doesn't have a leg to stand on.

References to his past history in the military don't really seem all that relevant. Yes, many vets of Viet Name and other action carry the scars with them but that does not give them a right to totally ignore their employer's direction.

Re:

[supremebob]

Thanks to this guy, IBM management is probably going to have to make stricter guidelines stating what you can and can't view online while you're at work. I bet that will piss off a ton of employees!

Re:

[jpetts]

Pacenza doesn't have a leg to stand on.

Then he would be covered by ADA, right?

Re:

[Dun Malg]

References to his past history in the military don't really seem all that relevant. Yes, many vets of Viet Name and other action carry the scars with them but that does not give them a right to totally ignore their employer's direction.

Exactly. I don't think an event 37 years ago, traumatic though it may have been, is a reasonable excuse for not following the rules. Imagine, if you will, that his chosen method of coping with PTSD was drinking two pints of cheap gin a day. If, after showing up to work drunk and being warned this was not OK, he continued to do so, would not IBM be justified in canning him then? Does the man himself not bear the lion's share of the blame for not seeking some more work-friendly means of soothing his PTSD at

Re:

[rueger]

Exactly. I don't think an event 37 years ago, traumatic though it may have been, is a reasonable excuse for not following the rules. Imagine, if you will, that his chosen method of coping with PTSD was drinking two pints of cheap gin a day. If, after showing up to work drunk and being warned this was not OK, he continued to do so, would not IBM be justified in canning him then?

Just to be clear, I do have friends who suffer from PTSD and even 40 years later (they were in Viet Nam early on) it has a daily imp

Addition to not working | un-workaholism

[coren2000]

So lets see here. If I were a heroin addict, and I was fixing on the job, and they fired me for fixing on the job, I could sue them for 5Million? Dang, I should become an addict for the big pay day! Sounds like this guy just has an addiction to not working. Or perhaps he is allergic to work.

Key Word is Accomodation

[vic-traill]

Send Buddy over to my department. I am willing to assume the company's Duty to Accommodate - plus it will help mitigate the Undue Hardship I'm experiencing in trying to locate 'The Really Good Shit' porn. I need a professional.

Just when you think I'm being a smart-ass, this isn't as far out there as you might think. I understand the motovation(s) for this sort of governance, but the implementation is getting pretty whacky. From the Canadian Human Rights Commissions website:

1. What is the duty to accommodate?

The duty to accommodate is the obligation to meaningfully incorporate diversity into the workplace. The duty to accommodate involves eliminating or changing rules, policies, practices and behaviours that discriminate against persons based on a group characteristic, such as race, national or ethnic origin, colour, religion, age, sex (including pregnancy), sexual orientation, marital status, family status and disability. emphasis mine

So my contribution to diversifying sexual orientation is that I wanna monkey spank all day sitting at my desk. Where's the beef? ... [Slaps Head]

http://www.chrc-ccdp.ca/preventing_discrimination/ page1-en.asp [chrc-ccdp.ca]

Re:

[iantri]

Unfortunately for you, "wanker" is not a sexual orientation.

Absurd

[JPMaximilian]

Why would you sue a company (and expect to win) when you were fired for violating a companies (reasonable) policies. The lawyer probably knows his client doesn't have a chance, but it milking this chap for legal fees.

Consistent standard needs to be applied

[Giro d'Italia]

If indeed IBM simply transferred two other workers who had actual sex on a desk (one assumes this occurred when someone could witness it, rather than in a private office late one night), it's going to be hard for them to justify firing this guy for engaging in otherwise legal activity even though it was using company resources. That's not to say this is age discrimination or some other malfeasance on the part of IBM, but the lack of consistency is troubling.

Re:

[JPMaximilian]

If indeed IBM simply transferred two other workers who had actual sex on a desk (one assumes this occurred when someone could witness it, rather than in a private office late one night), it's going to be hard for them to justify firing this guy for engaging in otherwise legal activity even though it was using company resources. That's not to say this is age discrimination or some other malfeasance on the part of IBM, but the lack of consistency is troubling.

Even if it was a private office, that sort of conduct on company property is inappropriate. Context is very important in these situations. The fact that looking at porn is "legal" is very dependent on context. Going an taking a shower at my house is legal, doing so without permission at someone else residence is not.

Re:

[uncqual]

If neither of the employees having sex on a desk had been warned by IBM for similar previous violations, the cases may be quite distinct on that fact alone.

This reminds me of a Grey's Anatomy episode.

[antdude]

There was a Grey's Anatomy episode [tv.com] about a patient who watched pornography to ease his pain.

Cry me a river...

[mark-t]

Why the hell can't people just assume responsibility for their actions?

And before anybody accuses me of being insensitive here, I have a psychological disability myself But I recognize that it's *MY* problem, not other people's, and that it's up to me to make choices at work that do not put me in situations where my disability would reflect anything less than the most professional behaviour of which I am otherwise capable.

If you want to chat from work...

[Angstroem]

...then make sure that everything is channeled via ssh to an outside machine.

You don't want people to see that you're visiting nasty web sites? Well, set up a machine outside running Squid, drill a little hole into the firewall using ssh to connect the outside Squid with your favorite local port, which you now use as your web proxy.

And yes, this is also a wise thing to do even if you *not* visit nasty web sites but just sit in a company network which has an overly sensitive firewall e.g. blocking your

Has happened before

[caseih]

and the guy was successful, too, well kind of. The story is that my at one workplace my boss was at a few years ago, there was a man fired for browsing porn while at work. This wasn't just a one-time thing. He was caught spending up to 6 hours a day surfing for it. After the man was fired, he sued the company saying that his porn surfing was the result of addiction for which he was seeking treatment, and thus he had been wrongfully terminated. His claim was that he was disabled and that the company had fired him because of his disability. The case never went all the way to trial, though. Instead the company settled with him, agreeing to take him back on as an employee if he agreed to not surf any porn at work, and to have his every internet use monitored while at work. The sad thing is that he lasted a week under this arrangement. After about 5 days or so, he was caught surfing porn again. This time his lawyers told him to just go quietly. It would almost be a funny story if it wasn't so pathetic. Some of these people really do need help with their addictions (sexual or whatever). Suing IBM is not something that is going to be helpful, however.

I Hate When Sick People Come to Work...

[moehoward]

So, he knew he was "sick", yet still came into work. I hate it when sick people come into work.

He should have gotten treatment by himself. The article refers to "self medication". Too funny. IBM happens to have very good mental health benefits and he could have easily gotten into a discrete program through IBM. Or even by himself. My guess is that he would have even gotten paid leave for a short while.

I would have felt just a bit more sorry for him if he had spilled hot coffee on his lap at the McDonald's drive through. Would have gotten him the $5 million and also solved his, um, other problem.

What sort of pension arrangement is at IBM

[vakuona]

I work in the insurance industry and while I am not in the USA, I can't see how someone can lose their pension. He might lose his next six months income, and that may have a minor impact on his pension, but he can surely retire early or something. In any case, if he wants to retire, then IBM has nothing to gain (or should not be able to gain) from his being fired. The law should normally prevent that.

I think IBM should just allow him to retire early, and save themselves 6 months wages at the same time, or just give the guy his 6 months salary, damn, he has been working there for like only 19 years. It is not worth it to fight this guy.

Glad they fired him

[Sloppy]

Firing addicts when they screw up their jobs due to their addiction, is good thing, not a bad thing. Make their self-medication have consequences. Make them hit bottom and want to recover.

Re:

[dangitman]

SCO has the patent on "internet addiction" and is suing the man.

Re:Frivolous suits

[Vegeta99]

As a law student you should understand that there are many different definitions of "disease". I'm not currently a law student, I'm an undergrad studying human development and psychology, but plan to go on to law school.

The law may not define alcoholism as a disease, however, Merriam Webster defines the word as follows:
2 : a condition of the living animal or plant body or of one of its parts that impairs normal functioning and is typically manifested by distinguishing signs and symptoms : SICKNESS, MALADY
3 : a harmful development (as in a social institution)

As for 2, alcohol is known to encourage the release of endorphins and dopamine, and I'm sure you know the functions of both. At some point, without alcohol, one cannot keep endorphin and dopamine levels high enough during sobriety to function correctly, ie, with a clear mind and without physical tremors.

As for 3, alcoholism causes many problems, what with decreased economic productivity, many many many problems in the family, and increased burden on the health system, regardless of whether the alcoholic has a job or not: If he does, it increases health insurance premiums, if he does not, it increases stress on government- and institutionally-funded health care programs.

Alcoholism IS a disease, being a drunk is not. There is a point of no return for a drunk, however, and THAT is when it becomes a disease.