A Nova Scotia arbitrator has ruled that sex addiction isn’t a disability that employers must accommodate, especially where the condition doesn’t affect the employee’s ability to perform their duties.

The arbitrator, Augustus Richardson, also expressed doubt that a condition called “sex addiction” existed, noting it wasn’t generally recognized by an accredited professional body such as the American Medical Association or the Diagnostic and Statistical Manual of Mental Disorders.

Sari Springer, a partner at Littler Mendelson P.C., believes the employer in the case, aerospace and defence contractor IMP Group Ltd., did well to avoid a knee-jerk reaction to the issue of disability.

Read: How to handle a workplace accommodation

“The employer didn’t jump just because ‘disability’ came up,” she says. “Instead, the company took a breath before springing  into accommodations mode, and asked whether what the employee described was even a disability in the first place.”

Indeed, Springer believes the pendulum may be swinging a bit in accommodation cases. “We’re starting to see employers dusting themselves off ever so slightly,” she says.

The case originated in 2016 when the employer received complaints that the employee, an aircraft log controller with 18 years of service, was breathing heavily and acting erratically in a washroom stall when co-workers were in stalls beside him. The company advised the employee of the complaints and encouraged him to contact the human resources department if there was a medical reason for his conduct. Similar complaints followed in 2018. At a subsequent meeting, the employee admitted masturbating and watching pornography in a washroom stall.

The company referred the employee to a psychologist, who concluded the employee had a sex addiction. The company then terminated the employee.

Read: The challenges of terminating benefits for employees on disability

At the hearing, Unifor, the employee’s union, argued the employee’s conduct was excusable because it was a disability caused by sex addiction. But the arbitrator wasn’t convinced. He ruled against the psychologist’s conclusions that sex addiction existed as a recognized disability, that the employer was undermined by the expert’s lack of qualifications in the specific area and the fact that the condition was not recognized by “any accredited professional governing body.”

There was also no evidence that the employee’s actions interfered with his home life, his attendance and performance at work, or his productivity.

‘The grievor’s ‘addiction,’ if that’s what it was, may have interfered with the work or activities of other employees, but it didn’t affect his own work,” the arbitrator concluded. “Nor was there any evidence that it could not be controlled.”

The upshot was that even if a condition called sex addiction existed and even if the employee suffered from it — two conclusions of which the arbitrator was not persuaded — “. . . there was nothing to establish that is was disabling in any way.”

Read: Evolving trends in absence and disability management

Given that the employee continued his actions after being warned about them, the employer was justified in terminating his employment.

The case is analogous to Harrington v. Fraser Valley University, which arose in 2018 from a student’s complaint to the British Columbia Human Rights Tribunal that she had failed a course because of a learning disability the university didn’t accommodate, says Springer.

“The university was able to prove that she failed because she just wasn’t smart enough or failed to work hard enough, and the tribunal said that was OK,” she says.

Still, Shana French, a lawyer at Sherrard Kuzz LLP, says the Nova Scotia case may have engendered a different result before the Human Rights Tribunal of Ontario.

“Whether or not the condition was formally recognized by professional bodies would not have been determinative because Ontario law doesn’t require the existence of a capital ‘D’ disability,” she says. “I would have expected more analysis of whether the employee’s behaviour was culpable instead of just dismissing it as not meeting the formal medical requirements for a disability.”

Read: How to bridge the insurer, physician divide in disability management

Copyright © 2019 Transcontinental Media G.P. Originally published on benefitscanada.com

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