Workplace Accommodation and Sex Addiction: Shades of Grey

Workplace Accommodation and Sex Addiction: Shades of Grey

A recent decision in the matter of an arbitration pursuant to the Trade Union Act, RSNS 1989, c.475, between UNIFOR, Local 2215 and I.M.P. Group Limited (Aerospace Division), reinforces the fact that there can be key differences between addiction, and plain bad judgement. In this case, the employee was a veteran aircraft log controller with over 18 years of service at the company, and a history of strong performance. But, when his colleagues began to hear strange noises coming from the bathroom stall at work, they notified HR of the activity, and meetings were subsequently held with the employee to address the issue. Approximately two years later, new complaints surfaced from co-workers about strange noises being heard from the bathroom stall at work once again. This prompted HR to open an official investigation into the matter.

The employee was terminated for cause based on the results of the investigation, and although the termination letter did not specify a reason for the termination, it was understood by all parties that the issue of masturbation in the workplace, and previous warnings going unaddressed, was the cause of the termination. The Union argued, with evidence presented by the employees’ psychologist, that the employee suffered from a sex addiction. But, counsel for the employer argued that the psychologist was not an expert qualified to give opinion evidence on the issue.

The Decision and Key Take-aways:

The arbitrator ruled that even if there was a condition called “sex addiction”, which he mentioned he was not convinced by the evidence that there was, there was also nothing to establish that it disabled the employee in anyway. Ultimately, if there was no disability, the employer had no duty to accommodate. Based on the evidence presented, the employer had just cause not only to discipline the employee, but also to terminate his employment.

Employers should note that based on this ruling, under Nova Scotia’s human rights legislation, sex addiction may not be seen as a disability that employers have a duty to accommodate. However, whether or not this ruling will be used as precedent in other provinces with similar cases, remains unknown.

Employers may be more confident in their protocols when dealing with a sexual activity case in the workplace, based on this ruling. Discipline has been demonstrated in this case as an appropriate solution by the employer, particularly when the activity in question either embarrassed or caused distress to other employees, and breached the employers policies. Should a re-offense occur in the future, the employer may be justified in terminating the employee for just cause.

Here’s a closer look at the case:

UNIFOR, Local 2215 v I.M.P. Group Limited (Aerospace Division), 2019 CanLII 42096 (NS LA), http://canlii.ca/t/j08wp, retrieved on 2019-06-17

What Employers can do for Due Diligence:

According to a policy from the Ontario Human Rights Commission on preventing discrimination based on mental health, disabilities, and addictions, in order to best prepare for an accommodation, employers should:

  • Understand that the duty to accommodate is informed by three principles: respect for dignity, individualization, and integration and full participation.
  • Be aware that the duty to accommodate mental health disabilities is no less rigorous than the duty to accommodate physical disabilities.
  • Understand that each and every accommodation case is unique, and should be treated accordingly.
  • Work with an expert accommodation provider or Occupational Therapist on an ongoing basis to manage the accommodation process.
  • Accept requests for accommodation in good faith, and take an active role in exploring traditional, and alternative solutions.
  • Conduct open discussions about possible accommodation solutions to gain more insight.
  • Be aware that an accommodation may be necessary even in cases where the employee has not made a formal request.
  • Implement accommodations in a timely manner.
  • Be discreet, respectful, and maintain trust and confidentiality.

How Gowan Consulting Can Help:

  • Provide support for policy and procedures development.
  • Train managers and employees on the duty to accommodate.
  • Provide objective Occupational Therapy assessments for accommodation requests.

If you would like to learn more about workplace accommodations, please check out our services for Providing Early Intervention and Return to Work planning.

Gowan Consulting has many resources to assist employees with accommodation concerns. Sign up for our BOOTCAMP: RTW Facilitation Skills Workshop. We also have webinars on accommodation,  mental healthreturn to work and several other topics if self-learning is more your thing!

Want to know how we can assist you personally in the workplace? Contact Us!

works cited:

Ontario Human Rights Commission, Policy on preventing discrimination based on mental health, disabilities, and addictions, http://www.ohrc.on.ca/en/policy-preventing-discrimination-based-mental-health-disabilities-and-addictions/13-duty-accommodate

UNIFOR, Local 2215 v I.M.P. Group Limited (Aerospace Division), 2019 CanLII 42096 (NS LA), http://canlii.ca/t/j08wp, retrieved on 2019-06-17

Gowan Consulting. (2019). Early Intervention and Sustainable Return to Work Planning Retrieved from: https://gowanhealth.com/services/early-intervention-and-sustainable-return-to-work-planning/

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