Sex Addiction Not a Defence

After retiring from the Air Force as an airplane mechanic, Mike got a job at an airport.  When he accepted the job, he was given a copy of the Code of Conduct which indicated that the employer defined harassment as any behavior, often recurrent in nature, which negates an individual’s dignity and the respect to which they are entitled because the behavior is offensive, embarrassing or humiliating. 
 
Harassment also included any improper conduct that was directed at and offensive to another employee, by a person who knew or ought reasonably to have known that it would be unwelcome. 
 
Mike had a unique habit of masturbating in the men’s washroom at work in a stall. 
 
To Mike, this was not odd.  He had served many tours of duty in distant lands where privacy was at a premium.  If he wanted to masturbate while on tour, he would have to do it in his sleeping bag at night, or in a bathroom to maintain any kind of privacy. 
 
For some reason, it did not seem odd to Mike to carry on this practice at the new job.We will leave aside the question of why Mike couldn’t just wait to get home.  People began to complain.  Mike was making distinctive sounds.  Mike received a warning, and, took a break from his daytime hobby.  Within two years, he started up again, but tried to be more cautious about other people being in the bathroom and hearing him.  He was not cautious enough.  Heavy breathing, moaning and sounds consistent with an orgasm were heard coming from the stall Mike occupied.  It was unclear if the sounds were always his own or rather coming from what he was watching on his smart phone.
 
While Mike was suspended during the following investigation, he was diagnosed with a sex addiction. 
 
After the investigation was completed, Mike was confronted. He admitted his activities in the washroom and said he had no real answer as to why it was still happening.  He wasterminated for just cause and his Union grieved the termination.
 
The Arbitrator found that Mike had violated the Code of Conduct because nobody wanted to be an involuntary voyeur.  People expect their personal decorum to be respected. 

Part of  Mike’s defense was that he should been given a break because he suffered from a sex addiction which was a disability under human rights legislation. The arbitrator was not buying it.  Sex addiction, he said, has not been recognized as a diagnosis by  professional governing medical bodies. 
 
Despite a clear warning, Mike repeated his offending behavior and the arbitrator found this situation serious enough and the need to protect the sensibilities of fellow important enough to warrant Mike’s termination.  There was just cause and Mike got nothing out of the Arbitration.
 
Even if Mike’s sex addiction had been found to be a disability under Human Rights Legislation; that would not have been the end of the discussion.  When behavior impacts others, there is balancing process.  In Mike’s case, the fervent needs of the one did not outweigh the sensibilities of the many.
 
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com