One of the more risqué areas of employment law
The law is constantly evolving – changing to meet the demands and necessities of the shifting employment landscape. The nature of what is, and what is not, considered to be a disability or protected characteristic is also seeing some rather interesting changes.
One of the more risqué areas in this debate involves ‘sex addiction’ in the workplace. A tech employee was recently sacked after he visited an internet chatroom for a “sexual experience during work”. The employee decided to sue his ex-employer for $5million – citing his internet sex addiction was an offshoot of post-traumatic stress incurred by experiences in Vietnam.
We caught up with Muneeza Sheikh, partner at Levitt LLP and speaker at our Employment Law Masterclass, who talked us through employers’ obligations and revealed whether or not sex addiction is a disability under human rights law.
“As of now, it’s not,” she prefaced. “However, this is an area of the law which is evolving. Don’t get me wrong, while the words ‘sex addiction’ may not be used explicitly, a lawyer could make the argument that it is a disability and something which an employee is suffering with.
“At the same time, an employer has an obligation to accommodate workers up to the point of undue hardship. In the case of sex addiction, where an employee claims the nature of this addiction requires them to view pornography at work, from an employer’s perceptive they could argue this is past the point of undue hardship.”
Organizations have to consider the safety aspects of this too, Sheikh told us. What about professions in which children are present – having staff viewing certain risqué websites could pose a risk to them. And even if there aren’t children around, if there are colleagues or customers in the vicinity who see an employee viewing said material, it’s the employer that would be held liable for forcing those employees to work in a toxic, sexualized environment.
“This in turn would expose the employer to civil liability,” Sheikh added.
“I believe, rather quickly, an employer would be able to argue that they can only accommodate up to the point of undue hardship. And if people’s safety is a concern, if there are staff who would sue over unhealthy working conditions, then you’ve crossed that threshold pretty quickly.
“I think what would probably happen in those circumstances is the employer, depending on the type of employees and their individual disciplinary history plus their value to the organization, there may be a desire for the employer to give the worker time off to deal with their addiction.
“On the flipside of that, I could also imagine an employer not being willing to take the risk. In that case, they would express their understating of the issues the worker is going through, but ultimately decide sex addition in the workplace would cause harm to their organization, brand and employees.”
