Is The Internet A Legal Addiction

November 9, 2007
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DETROIT — Is being addicted to the Internet a disorder like alcoholism and compulsive gambling? If it is, should the obsession be covered by the Americans With Disabilities Act?

It’s very likely that James Pacenza of Montgomery, N.Y., would answer “yes” to both questions.

IBM Corp. fired Pacenza three years ago for visiting an online adult chat room while on the job making computer chips in a company-owned plant. The firm claimed managers had warned Pacenza about his penchant for Internet surfing before dismissing him.

Pacenza, who was 55 years old when IBM released him three years ago after 19 years on the job, said he suffers from Internet addiction disorder. He said the compulsion grew from the traumatic stress he acquired after watching his best friend be killed in the Vietnam War in 1969. Visiting the chat room, he said, relieved that stress.

Instead of being fired, Pacenza said IBM should have shown him sympathy and helped him get treatment for his alleged disorder.

Because the company didn’t do either, Pacenza filed a $5 million lawsuit against IBM in federal court in the southern district of New York. In his suit, he also said IBM fired him because of his age, and he claimed protection under the Americans With Disabilities Act.

IBM has countered by asking the federal judge for a summary judgment dismissing the case, arguing that sexual-behavior disorders are excluded from the ADA. The company also denied that Pacenza’s age had a role in its decision.

The judge hadn’t rendered a verdict on the company’s motion at press time.

If Pacenza wins the judgment and his online addiction is seen as a legitimate psychological illness, might that outcome affect a company’s Internet policy?

Not if it’s a proper policy, for at least two reasons.

“A, I don’t believe (Internet addiction) is really a disability under federal law,” said Adam Forman, a principal in the labor and employment group in the Detroit office of Miller Canfield.

“And, B, even if it were to be considered a disability, I don’t think that changes the rules of the road in terms of an employer’s ability to implement and enforce an e-mail- and Internet-usage policy that imposes discipline for violations,” he added.

Forman said as long as employers create and put into practice uniform policies to regulate e-mail and Internet use, and consistently and fairly impose penalties for violations of those policies, businesses will be well within the law. But, he emphasized, a policy has to be job related and consistent with what needs to be done on the job.

Forman took part in an American Bar Association forum on the topic last April. Also on that panel was the attorney representing Pacenza in his suit.

Forman said the American Psychological Association is debating whether to include Internet addiction disorder in its next Diagnostic and Statistical Manual of Mental Disorders, which already recognizes alcoholism, drug addiction and compulsive gambling as mental ailments.

In contrast, though, the ADA, the Equal Employment Opportunity Commission and the courts recognize alcoholism and drug addiction as emotional disorders, but not compulsive gambling.

At the forum, Forman compared someone who is obsessed with surfing the Internet to a person who has an irrational urge to gamble.

“Compulsive gambling was one of the conditions that was expressly excluded as a disability by Congress when they passed the ADA,” said Forman.

“From an employer’s perspective, I’m not sure if any of that matters, because even definable disabilities under the act don’t provide a shield for an employee to engage in misconduct,” he said.

Forman said the classic shield example is alcoholism. Even though the ADA recognizes it as a disability and is protected under the law, that doesn’t mean an employer has to keep an employee on the payroll who reports to work inebriated or drinks on the job.

“If an employer has a workplace-standards policy that said, ‘You can’t be drunk or drink at work,’ then an employer can fire the employee for that misconduct — as long as the standard is job related for the position in question and consistent for business necessity,” said Forman.

Regardless of how the Pacenza case turns out, Forman said the best advice he can give employers is to make sure a job-related and consistent online policy is in place, and that workers are made fully aware of it.

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