December 15, 2006

Slyly Undermining the ADA

by PG

One thing that I wish I'd inculcated more forcefully in the media class I TAed: if you're going to write about a topic and discuss its legal implications, glance over the law or at least have a lawyer review your article before publishing. Just getting quotes from an attorney is not enough. Businessweek claims,

Attorneys say recognition by a court -- whether in this or some future litigation -- that Internet abuse is an uncontrollable addiction, and not just a bad habit, could redefine the condition as a psychological impairment worthy of protection under the Americans with Disabilities Act (ADA).
That in turn would have far-reaching ramifications for how companies deal with workplace Internet use and abuse.
For starters, businesses could be compelled to allow medical leave, provide counseling to or make other accommodations for employees who can't control Internet use, says Brian East, co-chair of the disability rights committee of the National Employment Lawyers Association.
East says recognizing Internet abuse as an addiction would make it more difficult for employers to fire employees who have a problem. "Assuming it is recognized as an impairment . . . it is analyzed the same way as alcoholism," says East.
Yet the scenario the article opens with is about someone whose Internet use violated the company's policy. Even a person with a recognized substance abuse problem can be fired for using the substance on the job, according to Sec. 12114:

(c) Authority of covered entity. - A covered entity- (1) may prohibit the illegal use of drugs and the use of alcohol at the workplace by all employees; (2) may require that employees shall not be under the influence of alcohol or be engaging in the illegal use of drugs at the workplace; (3) may require that employees behave in conformance with the requirements established under the Drugļæ½Free Workplace Act of 1988 (41 U.S.C. 701 et seq.); (4) may hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee ...
So if James Pacenza was underperforming compared to other IBM employees, and was in sexual chatrooms while at work, it doesn't matter whether internet addiction is treated like substance addiction under the ADA -- he still could be fired without violation of discrimination law. I see such articles as undermining the ADA because they make people think that we have this dumb law that gives people a free pass for their bad work behavior as long as they claim it as a disability, which isn't true. Congress deliberately carved out the addictive behavior it recognized, i.e. drugs and alcohol, from the ordinary coverage of the ADA to make employees responsible for at least controlling themselves enough not to shoot up or chat up while at work.

Personally, I would want to see CT scans on a person claiming addiction to an action rather than a substance; we know fairly well how people end up addicted to drugs adn alcohol due to the neurological effects (even chocolate causes the brain to produce opiates). If being online causes the brain to produce certain chemicals, I'd be inclined to concede that it should be recognized as an addiction. This seems implausible, however. Unlike sex, which has been a very longstanding part of the human condition and induces dopamine rushes, the internets are rather too new to alter a slowly evolving brain.

December 15, 2006 4:45 PM | TrackBack
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