A recent Nova Scotia labour arbitration decision suggests that employers may not have to accommodate employees who have medically diagnosed sex addiction where behaviours associated with such an addiction clearly justify discipline or termination.
In Ontario human rights law, all employers must accommodate employees with a disability to the point of undue hardship. This may include, for example, allowing employees with medical marijuana prescriptions to use medical marijuana while at work. But sex addiction may not be a “disability,” at least as was suggested in UNIFOR, Local 2215 v I.M.P. Group Limited (Aerospace Division), 2019 CanLII 42096 (NS LA) (“UNIFOR”).
In Unifor, an employee was the subject of several complaints from coworkers due to regularly masturbating in a bathroom cubicle of his workplace. After warnings, the employee continued the behaviour, and was fired.
The union, on behalf of the employee, commenced a wrongful termination grievance. In support of his case, he provided a report from a doctor who diagnosed him with a sex addiction. The doctor listed a number of symptoms that, in his view, amounted to a sex addiction:
“Loss of control” – increased frequency, duration, or depth of involvement in sexual acting out behaviour indicating a possible loss of control within or between sessions.
“Craving” – a strong desire to participate in sexual acting out behaviours, such as pornography, sexual contact, flirtation, sexting, video chat, phone conversation, masturbation, etc.
“Threat to life roles” – Repeated participation and commitment to sexual acting out despite recurrent social or interpersonal problems or costs – e.g. Conflict at home or at work as a result of sexual acting out or the costs in time and energy of carrying out and keeping up the deception used to hide the behaviour.
“Negative mood” – using sex or sexual acting out behaviour to alleviate negative mood states, stress, tension, or irritation.
However, during cross-examination, the doctor admitted that there was no standard list of symptoms attributable to sex addiction. He described how he had taken symptoms of general addiction and then modified them for sex addiction.
The arbitrator concluded that the doctor’s assessment of the employee’s sex addiction was problematic primarily because (a) sex addiction is not significantly medically or scientifically recognized; (b) the doctor’s stated symptoms were too general and vague to necessarily be indicative of a sex addiction, if such a condition exists; and (c) the symptoms described by the doctor were largely subjective and/or represented his own opinions rather than being some kind of recognized test.
The arbitrator, in the end, was not convinced sex addiction was a recognized condition that amounted to a disability, and thus the employer had no duty to accommodate the employee by being accepting of the behaviours which stemmed from his purported addiction. The termination was therefore found to have been justified.
What does this case tell us?
Although this is a Nova Scotia arbitration decision, and thus is not binding on Ontario arbitrators, this case nonetheless suggests that adjudicators may not be open to recognizing non-scientifically recognized forms of addiction, such as sex addiction, as legitimate disabilities requiring employer accommodation.
By Marty Rabinovitch