Pacenza says that he is a sex and internet
addict who suffers from post traumatic stress disorder related to
the Vietnam War who uses chat rooms to alleviate his distress. He
is claiming protection under disability legislation.
IBM claims that its policies on internet use
are clear, that Pacenza violated them and that sexual behaviour
disorders are exempt from the Americans With Disabilities Act.
"Plaintiff was discharged by IBM because he
visited an Internet chat room for a sexual experience during work
after he had been previously warned," said the company.
Pacenza operates a machine in one of IBM's
computer chip plants. He logged on to a chat site called ChatAvenue
and when he walked away from his machine a colleague saw sexually
explicit language on the screen and reported him. He was sacked the
following day.
The case alleges that Pacenza's age and long
service formed part of IBM's decision to dismiss him. The 55
year-old had worked for the company for 19 years and would have
been eligible for retirement in a year. IBM denies that age had any
role to play in its decision.
IBM has asked the court for a summary judgment
on the basis that its internet use policies are clear. It also
claimed that Pacenza had previously been warned about an incident
following which he was told he could lose his job.
Employment specialist Robyn McIlroy of Pinsent
Masons, the law firm behind OUT-LAW.COM, said that the case
highlights how important a clear internet usage policy is. "The
basic rule is that employers should have a policy that is crystal
clear so that they don't have trouble defending cases such as
this," she said.
"If you have a clear policy you also need to
make sure it is disseminated amongst the staff so that nobody can
make the argument that it was never brought to their attention,"
said McIlroy.
