Sunday, February 18, 2007

Post-Traumatic Tort Syndrome

A man claiming to be addicted to internet pornography as a result of his combat experiences in Vietnam is suing IBM Corp. for $5 million for being fired over his use of sexually explicit internet chatrooms during work hours.
James Pacenza, 58, of Montgomery, says he visits chat rooms to treat traumatic stress incurred in 1969 when he saw his best friend killed during an Army patrol in Vietnam.

In papers filed in federal court in White Plains, Pacenza said the stress caused him to become "a sex addict, and with the development of the Internet, an Internet addict." He claimed protection under the American with Disabilities Act.

His lawyer, Michael Diederich, says Pacenza never visited pornographic sites at work, violated no written IBM rule and did not surf the Internet any more or any differently than other employees. He also says age discrimination contributed to IBM's actions. Pacenza, 55 at the time, had been with the company for 19 years and says he could have retired in a year.

I doubt that he has much of a chance, though this does raise some interesting legal angles. Workplace internet use is so ubiquitous that if every employer cracked down on every employee that browsed the net for other than business purposes during the workday the economy would come to a schreeching halt. Although I'm sure that every company that provides workers with an internet-connected workstation has a policy stating that use of the internet is strictly for business purposes, there seems to have evolved an unwritten code of conduct that says as long as the employee gets his work done in a satisfactory manner and does not expose the company to security or liability risks through his extracurricular internet traffic or create an offensive atmosphere for other employees who may oversee his monitor then the policy will not be enforced. One recent study actually found that employees who do online shopping from work during the Christmas shopping season are more productive than employees who take long lunch breaks to get their shopping done at stores.

So this case may not be as trivial as it seems on first impression. The employee's lawyer will surely go after the company for overlooking all of the other employees at IBM who browse the internet during work hours. However the particulars of this case pan out, it will serve as an interesting precedent for internet in the workplace issues. Can any of our house lawyers provide color commentary on this?


Blogger Oroborous said...

Visiting sexually explicit internet chatrooms isn't an approved method for treating PTSD, so he can hardly complain about getting fired for so doing.

Maybe he can get them to pay for rehab for his "addiction".

February 18, 2007 10:51 AM  
Blogger Harry Eagar said...

My employer does not have a policy on surfing at work.

Based on my occasional attendance at employer law seminars, I'd say the guy would win in a walk in California. Don't know about N.Y.

February 18, 2007 11:10 AM  
Blogger David said...

He's not likely to win, for two reasons:

1. The courts and the state mini-eeocs don't like these cases that make anti-discrimination laws look trivial or stupid. As far as they're concerned, fighting private job discrimination is very important (and who's going to argue with them) and trivializing it is dangerous. The wise-guys who complain because women can wear their hair long but men can't lose, and so will this guy.

2. The employee claims that it is discrimination to fire him for visiting chat rooms because his disability (sex addiction) forces him to visit chat rooms. Did he tell his employer that he was a sex addict before he was fired? If not, how can it be discrimination?

More importantly, the law regarding addiction is pretty clear. You can't be fired for being an addict. But that doesn't mean that you can't be fired for engaging in the behavior that feeds your addiction if everyone else is forbidden from engaging in that behavior. For example, you can't fire alcoholics because they are alcoholics. But if you forbid employees from coming to work drunk, you can fire an alcoholic for coming to work drunk. You can fire due to behavior, but not due to status.

Thus, the only argument open to him is that IBM does not forbid other employees to go to chat rooms, or does not enforce its rule. An interesting question will be whether IBM just forbids sex chat rooms and whether that's permissible. Still, I think he'll lose under the wise guy rule.

February 18, 2007 2:01 PM  
Blogger Peter Burnet said...

Darn you, I was just about the post this myself.

David is probably right, but if this guy is presentable and his case is well-prepared, he could give it a good shot if IBM is indeed casual about other racy Internet usage like The Daily Duck. I would answer David's addiction argument by saying Internet chats aren't sex and the proper analogy is an alcoholic surfing a site on cocktail recipes. At AA they talk about drinking all the time to good effect, so why shouldn't a sex addict talk a lot about sex? Eh, you prudes? And what has this to do with sexual discrimination? Surely IBM has lots of female sex addicts checking out Harry's sites and reading Harlequin rape fantasies. Does IBM check the books they read on their breaks? Do we dare suggest women aren't into this kind of thing? For shame.

The link with Vietnam and death is particularly creative. I don't think his lawyers would have any trouble finding all kinds of psychiatric and literary expertise to testify that sex and death go together like a horse and carriage. If he draws a good morally confused Boomer on the bench, he may have a comfortable retirement, although possibly a lonely one.

He's got to stay away from Judge Judy, though.

February 19, 2007 6:18 AM  
Blogger EVadvocate said...

Does IBM owe this guy a job? As far as I'm concerned employees should serve at the pleasure of the company and can be let go for any number of reasons. Maybe the guy wasn't getting his work done, maybe he was disruptive to other employees, maybe they just didn't need him any more.

IMO, IBM's mistake was telling this guy that they were firing him for surfing the internet. Just tell him, "You're no longer needed," and be done.

February 19, 2007 9:26 AM  
Blogger Peter Burnet said...


Because unless they let him go for cause, they would have to pay severance in lieu of notice--as much as two years salary for an employee of his seniority plus cash in lieu of benefits.

When that news got out, the other employees would probably cause the server to crash.

February 19, 2007 12:17 PM  
Blogger David said...

Here's where we remind people that Peter is a Canadian lawyer and you shouldn't all try to get your company to fire you without notice.

In the US, employment is at will unless you have a contract that expressly states otherwise. The only people who have that contract are either very high up in the corporation or union members. This guy was apparently neither and thus was almost certainly a employee at will. An employee at will can be fired for any reason or no reason, but not for an illegal reasons. The illegal reasons are sex, race, age, religion, handicap and, in less than half the state, sexual orientation discrimination.

There is no law in the US (that I'm aware of, and I almost certainly would be aware of it) that requires that notice be given or salary be paid -- except for certain plant closing laws which don't apply here.

February 19, 2007 7:40 PM  
Blogger Harry Eagar said...

I haven't read his complaint, but no doubt he is claiming IBM should have made reasonable accommodation for his 'handicap.'

If the lawyers at Thorkildson Katz are right, he would almost certainly win in California, although it would not go to court. It would be settled administratively.

Then it would go to court. The District Judge might rule for IBM, but the 9th Circuit would reverse. (The 9th has ruled that companies have to keep the most obnoxious people on, if they are unpleasant because they are suffering.)

February 19, 2007 8:04 PM  
Blogger David said...

But then the Supreme Court would reverse the 9th Circuit. They've made up a special stamp just for that purpose.

February 19, 2007 8:40 PM  
Blogger East of Oregon said...

interesting.. I'm taking Torts this year at law school... things that make you go hmmm.

I mentioned you on my blog today, take care:)

February 19, 2007 9:08 PM  
Blogger Harry Eagar said...

A rare lady visitor, don't let her get away, Duck

February 20, 2007 12:04 AM  
Blogger Brit said...

No such luck. Methinks Ms Orgeon is nothing but a sliver of spam.

February 20, 2007 1:22 AM  
Blogger Peter Burnet said...

Apologies, David, I'm really eating crow here, but I thought we were dealing with general common law principles and I am surprised. Do you mean that an employer can just tell a senior executive of thirty years "thanks for the good times" with no notice? In which case, why would any employer fire for cause or any reason whatsoever?

February 20, 2007 2:25 AM  
Blogger David said...

Duck: Here's her blog. I don't quite get it, but I don't think it's spam.

Peter: Do you mean that an employer can just tell a senior executive of thirty years "thanks for the good times" with no notice?

Yes, unless there's a contract between the two that expressly says otherwise. Note that an employee handbook or a stated policy can be, in the right circumstances, a sufficient contract.

Now, as a practical matter, it never happens like that because it would be (a) idiotic (b) terrible for employee morale and (c) because corporations are run by employees who want employees to be treated fairly. (I should also have mentioned that you can't fire someone solely to stop them from vesting in their pension or receiving earned commissions, etc.)

Why would an employer ever specify a cause? Other than wanting other employees to think that the firing was fair, or at least predictable, employers have to specify a cause if the employee files for unemployment compensation. Employees fired for cause (if the state agrees that there was cause) can't get compensation. If the employer fails to specify a cause, then nothing happens accept that the employee gets his unemployment. Lot's of little firing controversies are settled informally by the employer agreeing not to oppose the employee's application for unemployment.

Does Canada have unemployment compensation?

February 20, 2007 7:41 AM  
Blogger Peter Burnet said...

Does Canada have unemployment compensation?

Heh, heh.

It's much the same here, but I still don't see why an employer in the States would care because it's easy to put in something anodyne like redundancy or lack of work to satisfy them.

Is the general situation in the States a matter of common law or statute? Again, the source of my surprise is that this whole area of wrongful dismissal is largely driven by the historical common law and I believe overlaps a lot with the U.K. I just assumed that, like tort law, the starting principles were the same. There is definitely no right to a job here as there seems to be in Europe, but the law will protect long term employees by mandating notice periods roughly equal to a month for each year worked (although it varies wildly according to position in the hierarchy). I must say this one tests my free enterprise credentials.

February 20, 2007 8:40 AM  
Blogger David said...

It is common law. The Wikipedia article is pretty good on the history, although it probably gives the impression that the current law is softer than it really is. For example, the fact that a firing can't be discriminatory doesn't mean that it has to be for cause. If you can convince the jury that you fired that black guy because he was a Yankees fan and not because he's black, you should win.

Companies fall into two categories on individual firings, those that almost never contest unemployment compensation and those that almost always contest unemployment compensation. If the employee doesn't sue for wrongful termination and the company doesn't contest unemployment, it never has to specify a cause in a legal sense (although of course they tell the employee something, which is usually as little as they can).

I must say this one tests my free enterprise credentials. It doesn't test mine. In fact, it's somewhat reaffirming. As I said, as a practical matter 30 year employees aren't just sent packing and all big corporations have policies that, as a practical matter, require a well-supported reason for termination ("reason" being different than "cause"). It's only at the very top of the corporation that executives are sent packing because the CEO doesn't like them, and they're usually well compensated.

In the end, most terminations are lay-offs and lay-offs happen because the company/unit/plant/department isn't performing. Laws that lead to good management and efficient workers reduce lay-offs.

February 20, 2007 9:18 AM  
Blogger Peter Burnet said...

I should add that my somewhat more optimistic assessment of this guy's chances was based on my assumption that it was a cause vs. no cause fight that was about entitlement to severance. As a legal vs. illegal termination case, he's got a battle on his hands.

Jury selection would be fascinating to watch. "Gender bias, Your Honor? Me?"

February 20, 2007 12:23 PM  
Blogger Susan's Husband said...

On the subject of firing for cause:

When I worked at Cisco, there was a big difference between fired for cause and not, primarily termination benefits. If Cisco fired you without cause, then you basically got 6 months of pay and 90 days to exercise your stock options. If fired for cause, you got booted out the door with nothing. The employment contract listed explicitly the set of things that were cause for getting fired and they were all of the "convicted of felony theft of corporate resources" kind of thing. The only guy I ever heard of getting fired for cause got canned for literally stealing memory chips out of computers when they arrived at the shipping dock and selling them on the grey market. If you just stopped working (and I knew someone who did that), you got fired without cause because Cisco figured it was cheaper to pay the termination bonus than fight it (and it made any legal complaints from the fired person much harder to argue in front of a jury).

February 20, 2007 7:02 PM  
Blogger Harry Eagar said...

'Now, as a practical matter, it never happens like that'

It does in the newspaper business. All the time.

At my first paper, we had an internal award for the best reporter's work each year. The same guy won two years in a row and then was fired for no reason anybody could ever figure out.

The managing editor, who had worked for the paper since he was a teenager, was fired at age 50 for no discernible reason.

I could go on and on and on.

February 20, 2007 7:12 PM  
Blogger David said...

Harry: Was it a family owned newspapaer?

February 20, 2007 7:17 PM  
Blogger Harry Eagar said...

Sort of. It was controlled by the grandson of an earlier owner, who bet the family fortune on the Weather Channel and almost lost his shirt but came out very OK in the end.

(In the early days, he paid Weather Channel employees in stock. Several ended up, like me, on Maui, but they don't have to work any more.)

February 20, 2007 10:01 PM  
Anonymous Anonymous said...

Post-traumatic stress disorder (PTSD) was first brought to public attention in relation to war veterans, but it can result from a variety of traumatic incidents, such as mugging, rape, torture, being kidnapped or held captive, child abuse, car accidents, train wrecks, plane crashes, bombings, or natural disasters such as floods or earthquakes.

October 21, 2008 5:10 AM  

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