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IBM Sued for Firing Alleged Internet Addict
globring sent us a link to a CNN article covering a trial with a unique defense. James Pacenza, a 58 year old Alabama man, has been fired from his position at IBM for visiting adult sites during working hours. The man is now suing the company for $5 Million, alleging that he is an internet addict. The plaintiff claims he visits these sites as a way of dealing with traumatic stress incurred in the Vietnam War. He claims that while he is addicted to sex and the internet, he never visited adult sites at work. Age-related issues, he says, are the cause of his filing. IBM, on its part, says that Pacenza was warned during a similar incident several months ago. Pacenza denies this as well.
The CNN article states that this wasn't his first warning: ""Plaintiff was discharged by IBM because he visited an Internet chat room for a sexual experience during work after he had been previously warned," the company said."
If people would actually take responsibility for their actions then this country might not be so bad.
IBM has been violating my rights to have a job there. Who knew?
This has apparently been going on a long time, since I've never worked at IBM.
I think IBM owes us all some back pay.
It's more like bullshit defense. I wouldn't be surprised if IBM kept logs of their worker activities at work - if he was fired for this incident *after already having been warned once* he wasn't cheated out of his job.
The only way I see ANY logic in this, is if Internet Addiction is considered a disability.... which causes you to look at porn... right.
:I
Maybe I can get away with classifying my need to punch stupid people in the face as a disability. After all, I shouldn't be fired for that
"When life gives you lemons, don't make lemonade. Make life take the lemons back!" -- Cave Johnson
He says he's "an Internet addict who deserves treatment and sympathy rather than dismissal".
Sounds like he indeed visited during work hours or he wouldn't have had a reason at all to say this. It's IBM's system and rules. Tuff if you can't keep your hands (mental or physical) out of your pants at the job.
"Your Honor, IBM fired me because they failed to give me the right to watch porn rather than working while on the job." Seriously, no sane judge is going to allow that to get by the inevitable dismissal motion by IBM.
I am officially gone from
Technically, it's not "a unique defense." Pacenza is the plaintiff, not the defendant.
Editor Emeritus and Senior Writer, TeleRead.org
SCO has the patent on "internet addiction" and is suing the man.
... and then they built the supercollider.
http://www.theregister.co.uk/2004/07/29/bofh_2004_ episode_24/
"I don't actually think you CAN fire me for browsing porn.."
"Why not?"
"Well, I think I'm addicted to porn."
"I beg your pardon?"
"Addicted. To porn."
"You're joking!"
"Oh no. You see I'm fairly sure that the browsing of porn causes the release of testosterone, endorphins or something like that, which in turn causes a pleasure response in the body - or so my doctor will tell me if I ask. I'm addicted to that pleasure response, in much the same way as a drug addict is addicted to the pleasure they obtain from their drugs."
"So you're saying you have no control over your actions?"
"None."
"And you.... Believe that this is somehow the company's problem?"
"Oh no."
"Good."
"No, I think it's the company's fault. It's completely different."
"I think you'll find that to demonstrate fault, the company would have to be aware of a problem."
"They are. I filled out a workplace hazard form about it six months ago."
moment. It seems that the number of things that count as disabilities has become insane.
On the current criteria, I'm slightly bemused as to why 'being thick' isn't allowed to count. It's not your fault, it puts you at a disadvantage, you can't change it etc.
Could anybody tell me why it's OK to discriminate against people being stupid in the workplace, but it's not if the mental/physical disability has a nice name?
Sounds like he's a sex addict! Just because he's using the Internet to fuel his obvious sex addiction doesn't make him an Internet addict. It's like saying someone who uses magazines to get their porn is a magazine addict.
You're not addicted to the medium, you're addicted to the content.
"If you are a dreamer, a wisher, a liar, A hope-er, a pray-er, a magic bean buyer
Much better is where the boss sends you the porn via email so you don't go having to look for it, and also pays your green fees when it's time to go playing golf.
If you dont have either of the above, consider seeking alternative employment.
Once I was a four stone apology. Now I am two separate gorillas.
I think that there seems to be confusion between addiction and disability. While you might not fire somebody for a recognised disability (and some addictions tend to fall along those categories), I've never heard of having to hold on to somebody because they're addicted.
If that were the case, it would mean that when Bobby and Johnny get caused smoking pot in the back during work hours, or when Sally gets caught with a needle in her veins in the washroom, they could claim that the company could not fire them because they were addicts. I think not.
This sounds like a bullshit complaint that's about a bitter loser denying reality. Remember, anyone can file a complaint; whether it goes anywhere is what matters, and I doubt this one will. Big companies like IBM have checklists for firing people, and if they're saying they warned him months ago, they've almost certainly got it in writing. They've probably also got logs showing his workstation accessing porn. And as for Internet Addiction, even established addictions don't prevent you from getting fired--being addicted to heroin, for example, won't save your job just because you're legitimately, medically addicted to something everyone agrees is uncontrollable.
Anyone who loves or hates any language, platform, or manufacturer, doesn't know what they're talking about.
Pacenza: Couple who had sex on desk merely transferred
He argues that other workers with worse offenses were disciplined less severely -- including a couple who had sex on a desk and were transferred.
Fred McNeese, a spokesman for Armonk-based IBM, would not comment.
Pacenza claims the company decided on dismissal only after improperly viewing his medical records, including psychiatric treatment, following the incident.
"In IBM management's eyes, plaintiff has an undesirable and self-professed record of psychological disability related to his Vietnam War combat experience," his papers claim.
Diederich says IBM workers who have drug or alcohol problems are placed in programs to help them, and Pacenza should have been offered the same. Instead, he says, Pacenza was told there were no programs for sex addiction or other psychological illnesses. He said Pacenza was also denied an appeal.
Diederich, who said he spent a year in Iraq as an Army lawyer, also argued that "A military combat veteran, if anyone, should be afforded a second chance, the benefit of doubt and afforded reasonable accommodation for combat-related disability."
Because you are using the company's resources, and that means you must follow their rules. If you use IBM's computer, and use their internet connection during time they are paying you to work, then they had every right to fire this guy if he was visiting porn sites. I'm sure there is an employee handbook detailing what is considered appropriate computer use at work. Every employer I've worked for has made it pretty explicit.
Its just like you can't use racial slurs, sexually charged language, and other offensive things at work. Someone could be walking by, see your porn on your workstation, and be offended.
I got nothin'
Allowing employees to visit adult sites may create a hostile work environment and sets you up for a lawsuit from other employees who might see it and be offended. You may be able to get away with it when it's you and a couple of buddies starting up, but when your profits are in the billions, you're a giant stack of cash waiting for the first person to claim sexual harassment.
You can never go home again... but I guess you can shop there.
His lawyer ... says Pacenza never visited pornographic sites at work, violated no written IBM rule ...
... (says) ... its policy against surfing sexual Web sites is clear. It also claims Pacenza was told he could lose his job after an incident four months earlier, which Pacenza denies.
International Business Machines Corp.
Seems pretty obvious. If IBM can produce those written policies, and has kept a written record of the previous warnings, Pacenza doesn't have a leg to stand on.
References to his past history in the military don't really seem all that relevant. Yes, many vets of Viet Name and other action carry the scars with them but that does not give them a right to totally ignore their employer's direction.
Three Squirrels
So lets see here. If I were a heroin addict, and I was fixing on the job, and they fired me for fixing on the job, I could sue them for 5Million? Dang, I should become an addict for the big pay day! Sounds like this guy just has an addiction to not working. Or perhaps he is allergic to work.
I would have to admit that if one employee views porn at work, and another set of employees FUCK at work, and their treatments by management are starkly different, with this person approaching a big retirement pension, the situation rather does look something like selective preferential enforcement. One of the reasons corporate consul will recommended treating all employees the same and have equitable and equally enforced policy is exactly because disparate treatment makes a good argument for a hidden agenda in court.
C//
This reminds me of an incident I once saw while working IT at a fairly major firm.
One of the VPs called us into his office to report a problem with his computer. Apparently somebody had ejaculated all over his keyboard. He wanted us to get rid of the soiled keyboard, and bring him a new one. Not really being in a position to ask questions, we just did what he wanted.
About a week later, the same VP is on the phone, telling us that there's more ejaculate on his keyboard. So we bring him a new keyboard, yet again.
Another week or so later, we get a third call from the same VP. This time we went to the President of the firm, and reported this incident to him. He assured us he would look into it. I'm not sure exactly what the outcome was, but the VP ended up leaving his job soon after. According to some of the secretaries near his office, there was a pretty serious confrontation between him and the President of the company. One of the secretaries quoted part of the VP's yelling: "Yes, I got my sperm on the keyboard! It's because I have a fucking masturbation addition!"
Send Buddy over to my department. I am willing to assume the company's Duty to Accommodate - plus it will help mitigate the Undue Hardship I'm experiencing in trying to locate 'The Really Good Shit' porn. I need a professional.
Just when you think I'm being a smart-ass, this isn't as far out there as you might think. I understand the motovation(s) for this sort of governance, but the implementation is getting pretty whacky. From the Canadian Human Rights Commissions website:
1. What is the duty to accommodate?The duty to accommodate is the obligation to meaningfully incorporate diversity into the workplace. The duty to accommodate involves eliminating or changing rules, policies, practices and behaviours that discriminate against persons based on a group characteristic, such as race, national or ethnic origin, colour, religion, age, sex (including pregnancy), sexual orientation, marital status, family status and disability. emphasis mine
So my contribution to diversifying sexual orientation is that I wanna monkey spank all day sitting at my desk. Where's the beef? ... [Slaps Head]
http://www.chrc-ccdp.ca/preventing_discrimination/ page1-en.asp
[17] Leary, T., White, C., Wood, P. R., Bhabha, W. D., and Wirth, N. Lambda calculus considered harmful. In Proceedings
No, it is not okay to discriminate against stupid people, at least in the USA. The U.S. Supreme Court ruled in Griggs vs Duke Power that people could not be hired or promoted on the basis of general intelligence.
As a law student you should understand that there are many different definitions of "disease". I'm not currently a law student, I'm an undergrad studying human development and psychology, but plan to go on to law school.
The law may not define alcoholism as a disease, however, Merriam Webster defines the word as follows:
2 : a condition of the living animal or plant body or of one of its parts that impairs normal functioning and is typically manifested by distinguishing signs and symptoms : SICKNESS, MALADY
3 : a harmful development (as in a social institution)
As for 2, alcohol is known to encourage the release of endorphins and dopamine, and I'm sure you know the functions of both. At some point, without alcohol, one cannot keep endorphin and dopamine levels high enough during sobriety to function correctly, ie, with a clear mind and without physical tremors.
As for 3, alcoholism causes many problems, what with decreased economic productivity, many many many problems in the family, and increased burden on the health system, regardless of whether the alcoholic has a job or not: If he does, it increases health insurance premiums, if he does not, it increases stress on government- and institutionally-funded health care programs.
Alcoholism IS a disease, being a drunk is not. There is a point of no return for a drunk, however, and THAT is when it becomes a disease.
Why would you sue a company (and expect to win) when you were fired for violating a companies (reasonable) policies. The lawyer probably knows his client doesn't have a chance, but it milking this chap for legal fees.
"I'll see you next time." - LeVar Burton
If indeed IBM simply transferred two other workers who had actual sex on a desk (one assumes this occurred when someone could witness it, rather than in a private office late one night), it's going to be hard for them to justify firing this guy for engaging in otherwise legal activity even though it was using company resources. That's not to say this is age discrimination or some other malfeasance on the part of IBM, but the lack of consistency is troubling.
So the boss is the boss, right?
By your logic, the company could also legitimately discriminate on the basis of politics, colour or religion. After all, it's their computer, right?
Hmm, our logs say you visited a Hindu website last month. Sorry, this is a Lutheran workplace; you're fired for abuse of work resources.
If an employer wants to make a rule that work computers can only be used for work, then fine. If an employer wants to make a rule that you can't stop work to read a newspaper at work, then fine. But if they start applying these unevenly, allowing employees to waste time all day on personal e-mails, irrelevant websites and tabloid newspapers, and then only jump on the employee visiting a site or reading a paper they don't like, then that's illegitimate control.
There is another aspect too: I used to work for Coca-Cola Italy. There a top-ranking manager told me that logs indicating visits to porn sites were something they specifically trawled for and then kept on file. Then, later in that person's career, if the company wanted to give him the boot without the usual legal and financial hassles, they could simply declare they had just discovered the logs, and according to the employment contract the guy's job was immediately terminated.
I think snu-snu is just sex. The punishment was "death by snu-snu". That implies that snu-snu does not always involve death, sort of like how "death by misadventure" doesn't imply that misadventure always leads to death.
(That's one of my favorite episodes.)
"what gives any company the right to discriminate?"
The federal government gives them the obligation to discriminate. If the manager hadn't taken action, the employee who had caught him could have sued for sexual harassment, arguing that the sexual content on the computer made for a hostile work environment.
Mathematics is made of 50 percent formulas, 50 percent proofs, and 50 percent imagination.
Its just like you can't use racial slurs, sexually charged language, and other offensive things at work. Someone could be walking by, see your porn on your workstation, and be offended.
This kind of shit disgusts me. I started working in a steel mill in Buffalo in the 1950s. You should have heard some of the stuff that basically everyone there would say. It was some of the raunchiest, dirtiest, filthiest motherfucking stuff that you could ever imagine.
But you know what? Nobody went stupid about it, and got "offended". Yeah, you'd hear things that you didn't like to think about. People would say mean things. But like the old saying goes, sticks and stones may break my bones, but words will never hurt me. I'd like to extend it beyond words, to pornographic pictures on a co-workers computer. You may not like seeing a woman getting bukkaked or taking four dicks at once. But even if you do see such an image, it won't hurt you.
In any case, it's disgraceful that the typical American workplace has become so sanitized and pussified. Not speaking your mind is not what America is about. America is about saying it as it is, even if it makes some people feel like crap. America is about freedom of expression. My father took bullets in France so that people 60 years later could speak their mind whenever they wanted, and not so they could go to work everday in fear of saying the wrong thing or looking at the wrong web site.
I'm damn glad I'm retired. I'm sure I'd get in a whole heap of shit for pointing out the stupidity of subordinates, or just for looking at some good, wholesome titty on my lunch break.
And before anybody accuses me of being insensitive here, I have a psychological disability myself But I recognize that it's *MY* problem, not other people's, and that it's up to me to make choices at work that do not put me in situations where my disability would reflect anything less than the most professional behaviour of which I am otherwise capable.
File under 'M' for 'Manic ranting'
and the guy was successful, too, well kind of. The story is that my at one workplace my boss was at a few years ago, there was a man fired for browsing porn while at work. This wasn't just a one-time thing. He was caught spending up to 6 hours a day surfing for it. After the man was fired, he sued the company saying that his porn surfing was the result of addiction for which he was seeking treatment, and thus he had been wrongfully terminated. His claim was that he was disabled and that the company had fired him because of his disability. The case never went all the way to trial, though. Instead the company settled with him, agreeing to take him back on as an employee if he agreed to not surf any porn at work, and to have his every internet use monitored while at work. The sad thing is that he lasted a week under this arrangement. After about 5 days or so, he was caught surfing porn again. This time his lawyers told him to just go quietly. It would almost be a funny story if it wasn't so pathetic. Some of these people really do need help with their addictions (sexual or whatever). Suing IBM is not something that is going to be helpful, however.
So, he knew he was "sick", yet still came into work. I hate it when sick people come into work.
He should have gotten treatment by himself. The article refers to "self medication". Too funny. IBM happens to have very good mental health benefits and he could have easily gotten into a discrete program through IBM. Or even by himself. My guess is that he would have even gotten paid leave for a short while.
I would have felt just a bit more sorry for him if he had spilled hot coffee on his lap at the McDonald's drive through. Would have gotten him the $5 million and also solved his, um, other problem.
"If you want to improve, be content to be thought foolish and stupid." - Epictetus
I work in the insurance industry and while I am not in the USA, I can't see how someone can lose their pension. He might lose his next six months income, and that may have a minor impact on his pension, but he can surely retire early or something. In any case, if he wants to retire, then IBM has nothing to gain (or should not be able to gain) from his being fired. The law should normally prevent that.
I think IBM should just allow him to retire early, and save themselves 6 months wages at the same time, or just give the guy his 6 months salary, damn, he has been working there for like only 19 years. It is not worth it to fight this guy.
Makes sense to me. Viewing adult sites at work leaves an electronic trail back to the company, so they have a fiduciary responsibility to their shareholders to stop it. Sex on a desk is only an issue if done in such a way that there is evidence of it having occurred (in view of cameras, in an unlocked or windowed office, in a cube farm...), if the sex act itself was some how unlawfull (non consensual or for money, though there are other options in some jurisdictions) or if the relationship results in a conflict of interest or the apearance thereof.
The first would, under the policies that IBM seems to be following in this case, result in first a warning (possibly a transfer at the same time to avoid sexual harrasment issues with employees who witnessed the act) and then termination, if the behavior continued. The second would likely result in prosecution by local authorities. The third generally results in transfer regardless of where any supporting acts occurred, in order to eliminate the conflict. It would also probably constitute a warning, so if they break up and one of them ends up in a similar relationship with a superior/subordinate it's the boot...
IANAL, this is all rational inferrence from my own companies manuals and sexual harrasment training (yes, thats what it was called, and yes, it should have had 'recognition and prevention' in the title to accurately represent it's content).
Realities just a bunch of bits.
By your logic, the company could also legitimately discriminate on the basis of politics, colour or religion. After all, it's their computer, right?
No, because there are laws against discriminating against people on those bases. There is no law preventing you from discriminating against someone based on whether or not they visit porn sites, however, especially if they do it with your resources.
But if they start applying these unevenly, allowing employees to waste time all day on personal e-mails, irrelevant websites and tabloid newspapers, and then only jump on the employee visiting a site or reading a paper they don't like, then that's illegitimate control.
Not if they're up front about it. If they're going to be "uneven" about things, then as long as they declare an exhaustive list of categories of activity that will get you fired, I don't see how you can have a problem with it. If the computer use policy says "no porn" but doesn't say "no personal emails" (and I'd be amazed if it doesn't say something about it, possibly allowing "reasonable use" or similar) then personal email are fine and porn isn't and that's that. There's no guessing, there's no unfairness - everyone knows where they stand. It's not uneven when the rules apply equally to everyone.
It's official. Most of you are morons.
Porn is probably more offensive than religion because someone from a distance can easily discern porn on your screen. It's mostly visual, after all. A religious website is just text, like your spreadsheets, emacs buffers, etc. It looks like work. People fucking on your screen is clearly not work.
Also, people are conditioned to think that "sex is bad OMG something must be done", so that's playing against you too.
I think it's generally understood that looking at porn at work is going to get you in trouble. If you don't understand why, it's probably good that you got fired.
My other car is first.
Let's not speculate about what could be done: Read the actual rules. We sign a contract every year that we will follow IBM's Business Conduct Guidelines. If you're curious, the short section on information and communication systems.
I think the rules are very reasonable. Does anything in there strike you as unreasonable?
"And you're aware that the company has a policy regarding acceptable use of computers?"
"Really?"
"YES" the Boss snaps, annoyed. "It's been in place for at least 18 months!"
"Ah, I see, so it's not actually a policy I agreed to several years ago when I started."
"Your contract gives the company the right to vary acceptable behaviour policies."
"Not my contract," I say
"I think you'll find it does," the HR Guy responds.
"No, mine was sent as an electronic document, so I just cut out the clauses I didn't like, added a couple of my own, printed two copies and signed them. Then your guy signed them too probably without checking. Or maybe he liked the idea of clause F.3 that I'm allowed to call Managers... 'knobface'."
"I.." the HR Guy says, then ducks out the door to check something.
two hours later . . .
"It's true," the HR Guy says. "There is a clause saying he can call you knobface."
"Which was also signed by your HR guy in ink," I add.
"Yes."
"Including the eight or so extra clauses I added... er.. Knobface?"
Firing addicts when they screw up their jobs due to their addiction, is good thing, not a bad thing. Make their self-medication have consequences. Make them hit bottom and want to recover.
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
I'm addicted to slacking. How about some time off to recover, boss, how bout it, eh!
Table-ized A.I.
just let me unzip it.
See my art -> http://herbevore.deviantart.com
[Makes stiff-arm salute] Yes, sir! We must obey all company rules, sir!
As already explained, that line of reasoning also justifies firing people on ideological grounds. Furthermore, it permits the sort of abuse that I described as happening at Coca-Cola.
-------
If a worker was wasting my time and money by spending paid company time stirring shit about his politic instead of actually doing his job, I'd fire him for that too. [Whoosh!] the entire discussion went over your head there, didn't it? Just for you, I'll repeat that it is fine to demand that a worker work. It is also fine to punish the misuse of a computer as a tool to sexually harass colleagues. But if you are going to allow a little freedom to surf the net, read e-mails and suchlike, you have no moral right to fire them for discreetly looking at something you disagree with, be it political, religious, personal, sexual, or anything else.