The Issue: An X-Rated Work Habit

Violating workplace rules leads to a hasty exit

Word about John Doe's* inappropriate forays on the Internet started out as vague rumors about his "not pulling his weight" in his department, recalls Jackson Ford, a partner at the Sacramento architecture firm where Doe worked as an engineer.

The firm had a staff of 150, and Doe, a 41-year-old father of two who had worked at the company for five years, had never created a problem before. "He was a little independent-minded—if you said sit down, he'd want to get up—but in general he was in good standing," says Ford.

Soon after the rumors started, Ford received a call from the IT department. A random check had revealed John was cruising to, and clicking on, pornographic Web sites, a violation of the written policy the company required each employee to sign.

Prime Viewing Hours

"We make it clear that if your spouse or grandmother wouldn't approve of something, don't do it in the office," says Ford. "And it turned out the inappropriate sites weren't exactly Sports Illustrated swimsuit pictures. It was hard-core porn, with intercourse and close-up shots of genitals."

Brazen as such behavior sounds, it doesn't surprise Dave Greenfield. "The peak hours for Internet porn use are 9 a.m. to 5 p.m.," says Greenfield, an East Hartford (Conn.) psychotherapist who treats patients with addictions to Internet pornography. "You've got the ease of access. In some cases, it's like the company putting a six-pack on an alcoholic's desk, and saying, 'Here, don't drink it.'"

Even so, the company couldn't tolerate porn-watching on the job, because its presence constituted a "hostile environment" that could alienate female employees, says Eli Kantor, a Beverly Hills (Calif.) attorney who specializes in labor and employment issues. "In the old days, a hostile environment was a trucking company where the lunchroom would have girlie pictures pinned up," says Kantor. "Now you have porn sites available everywhere."

You've Been Warned

The day after IT gave him the heads up, Ford arranged a meeting for himself, an HR representative, and John. "We told John this was unfortunate because he'd been doing good work but that if he didn't stop watching porn at work, we would fire him," recalls Ford. "He denied any porn use, so we showed him documentation from IT. Then he said the documentation was all a mistake. But by the end of the discussion, he admitted what he'd done and signed a document acknowledging it."

Less than a month after the meeting, Ford happened to walk by John's desk, which was situated not in a private office but in an open work area. On his computer screen were four panels of streaming videos depicting hard-core pornography.

"I immediately asked an HR rep to come downstairs. While John was in the men's room, I had an IT person shut off his access to the computer network. Then we called John into my office and fired him. He admitted what he'd done right on the spot. He said the adult Web sites were so tempting, he just couldn't help himself. We told him he had 15 minutes to collect personal belongings from his cubicle."

Preventing a Dangerous Situation

This provoked a request that sent up a red flag. "John said he had to pick up his daughter at target practice and wanted to come back afterward to pick up his stuff." His wish denied, John was escorted to his desk to collect his things, then ushered out of the building forever.

"Naturally, I was afraid he'd come back and go postal. I knew for a fact his family liked to shoot guns—real firearms, not BB guns—as a hobby. But fortunately we never heard from John again."

Likewise, no employee ever complained about John's behavior, and it never caused any formal sexual harassment complaints or litigation. So was the firing too harsh on the company's part? Or did it leave itself open to trouble by not dismissing him sooner?

*This case study is true. Names and some other identifying details have been changed.

An engineer who dipped into X-rated Web sites on the job merited a quick heave-ho from the premises

Within a month of it being discovered that John Doe* was looking at Internet pornography at his desk at work, the engineer at a Sacramento architecture firm found himself barred from the company computer network and fired, given 15 minutes to get his things together and leave for good.

Was it just? The experts seem to think so. "Absolutely, the company did the right thing by firing him, especially because he was in a cubicle where any woman could have seen the pornography on his screen," says James Ryan, an attorney specializing in employment litigation for New York's Cullen and Dykman. "It could leave the company open to a sexual harassment suit."

Employer Can Be Liable

And if litigation arose out of the situation, the employer couldn't simply have transferred all the blame to John. "In addition to the 1964 Civil Rights Act that outlaws sexual harassment, states have their own laws against sexual harassment," says Eli Kantor, a Beverly Hills (Calif.) attorney who specializes in labor and employment issues. "The trend is to make the employer the teacher of the rules—the principal watching the sandbox."

And there simply weren't any dog-ate-my-homework excuses for John or the company. Ryan notes the company's IT department had evidence John had intentionally sought out the inappropriate sites. "Sometimes people accidentally open an e-mail, and it's porn," he explains. "But that wasn't the case here. And the company used the right sequence of events to discipline him."

According to Ryan, those steps are:

1. Making sure the employee has seen the employer's written rules against viewing or bringing any pornographic materials into the office. If the company lacks official rules, it's time to draft some and then show them to him.

2. Giving him a warning that termination will result if he breaks the rules again. (Although if the company preferred to fire the employee without a warning, it would have been within its rights, as long as rules were in place and he'd seen them before the offending incidents).

3. Enacting termination quickly. "While you're telling the employee he's fired and human resources is laying out the information about COBRA benefits, your IT person should be shutting down access to the computer. Otherwise he might steal information or do malicious damage," says Ryan.

4. Letting other employees know about the firing.

When it came to step No. 4, the company erred slightly, according to Ryan. The day after John was fired, Jackson Ford, a partner of the firm, had told the rest of the employees that John was fired for looking at inappropriate Web sites.

A Protected Disability?

To avoid humiliating the ex-employee—who may stay in contact with former co-workers—Ford should have simply said that John had "parted ways" with the company. "Then the next morning, you send everyone the sexual harassment and anti-porn policy," says Ryan. "That way people can figure it out without hearing the whole embarrassing story."

Dave Greenfield, an East Hartford (Conn.) psychotherapist who treats patients with addictions to Internet pornography believes that, embarrassed or not, employees caught cruising Web porn could attempt to turn the tables and sue. "He could argue that his addiction is a medical problem protected under the Americans with Disabilities Act, and the employer is treating him unfairly," Greenfield says.

No such suit has yet to prevail, however. "I think until the American Medical Assn. officially recognizes compulsive Internet porn viewing as an addiction, a case like this probably won't succeed," says Ryan.

Even if John had been caught dabbling in nonpornographic recreational Web sites, he might have warranted at least a warning. "Video streaming on four panels would take up a lot of bandwidth," says Ermis Sfakiyanudis, president of eTelemetry, an Annapolis (Md.) seller of Metron, a device that monitors time employees spend on Web sites or instant messaging. "It could slow down or prevent Internet access for other employees."

*This case study is true. Names and some other identifying details have been changed.

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