You manage a team of employees. Your team plays a significant role in ensuring that the company’s operations proceed smoothly. An emergency arises, and you need to send people from your team to identify and address the cause. You send a few team members, one of whom identifies and addresses the problem. That same team member then tells you s/he has been diagnosed with a sex addiction. You fire him/her, just like that, citing the recent emergency as a reason. Isn’t this employee entitled to a reasonable accommodation of a disability? Wait. Is sex addiction a disability? Is it even a thing?
Do I have your attention now? Good. Pay some more attention and we’ll not only explore this issue further, but we will also look at how you might smooth out a potentially messy situation, with the help of your friendly local employment counsel. Yes, there actually is (or was) a case on this very issue. The case is Karen Manson v. Careington International Corporation (Case 4:20-cv-00916 US Dist Court, E.D. TX 2021). Here, in a nutshell, is what allegedly went down:
Karen Manson worked for Careington International Corporation as is IT Director. During her 5-year tenure, she had no performance or complaint issues and was even told in January 2019 that she was on track for a promotion. She even received a $20,000 raise. In December 2019, Ms. Manson says told her boss, Rashmi Jain, that she suspected she suffered from a sex/love addiction, and that she was seeking an appropriate therapist. Ms. Jain initially expressed support and concern.
On January 19, 2020, a Careington customer, for whom Ms. Manson’s department was responsible, suffered a lengthy, widespread outage, which Ms. Manson and her department corrected by the next day. Of the five people responsible for addressing the outage, Ms. Manson was the only one to identify the source of the problem. She then allegedly led her team in correcting the problem. On January 23, 2020, Ms. Manson took a personal day to attend an emergency counseling session, where she was officially diagnosed with sex/love addiction. On January 24, Ms. Manson disclosed her diagnosis to Ms. Jain, informing Ms. Jain that she was told to limit her contact with the opposite sex.
According to Ms. Manson, within hours of her disclosure, Ms. Jain fired her, citing the customer outage. Ms. Manson says she was the only employee on the team disciplined for the outage. Ms. Manson sued Careington, under the Americans with Disabilities Act. She alleged both discrimination and failure to accommodate her disability. Careington moved to dismiss the claim, arguing that sex addiction is not a disability and is not protected under the ADA. The court granted the motion.
Here’s why: Yes, the Americans with Disabilities Act protects physical or mental impairments that substantially limit a major life activity. Yes, the ADA recognizes that addictions may be a protected disability. Yes, there’s a strong argument that sex is a major life activity (the 9th Circuit Court of Appeals, and apparently other courts have taken that position). Yes, sex addiction is recognized as a mental health condition by many mental health professionals. Why then, did the court dismiss the claim? It comes down to one very simple reason: There are a few very specific categories of conditions that the ADA explicitly excludes as covered disabilities–and sexual disorders is one of those categories.
OK, so the takeaway is that you can fire an employee with a sex addiction, then, right? Employer wins. Score one for the employer. Not so fast! This employer still had to respond to and still had to expend a significant sum of money to defend its former employee’s claim. The situation was still a messy one that could have been avoided. Besides that, if she were an employee working in a state that had more expansive anti-discrimination laws, the ruling could have gone the other way. If you’re an employer in this situation, it’s very likely you’ll need your friendly local employment counsel, regardless.
Here’s how it could have gone down if this company had called their employment counsel sooner rather than later when it was facing a lawsuit: An employment attorney might have started with the short answer: The ADA doesn’t prohibit firing an employee with a sex addiction, because it’s a condition excluded under the ADA. However, a good employment attorney hopefully wouldn’t have stopped there, though, and maybe had the following discussion, instead:
Assuming that Ms. Manson really had been the stellar employee she says she was, why fire her at all? She was on track for a promotion, so clearly she performed well. She had no known conduct issues. Ms. Jain could have kept the information confidential and let things ride, unless and until the sexual addiction became a performance or conduct issue.
What about Ms. Manson’s statement that she needed, whenever possible, to limit her contact with the opposite sex? Assuming that limiting contact with the opposite sex wasn’t possible, or wasn’t always possible (and I suspect that would have been the case), Ms. Jain could have told Ms. Manson so. She could also have referred Ms. Manson to HR to see if any accommodation was possible.
But wait. If sex addiction isn’t a disability under the ADA, Ms. Jain didn’t have to do that, so why should she have reached out to HR? Here’s the reason: Ms. Manson likely had a sex addiction well before she sought a diagnosis and treatment. Yes, addictions tend to be progressive–when an addict is not actively seeking treatment, which Ms. Manson clearly was by the time she disclosed her condition. My point is this: Ms. Manson’s addiction clearly hadn’t presented a problem up until that time. Ms. Jain would likely not have seen any reason to fire her if she hadn’t known of her condition — assuming Ms. Manson’s allegations are all true. Regardless of what Ms. Jain and the company would have ultimately decided, an employment attorney would also have told the company to document its communications with Ms. Manson, its decisions, and its reasons.
The point is a discussion along the lines of what I outlined above would have allowed the company to hold onto someone who obviously provided great value to the company, and avoided a messy situation and a lawsuit. If a problem did arise later, and that problem was well-documented, along with appropriate responses, as recommended by friendly local employment counsel, that termination would likely have gone much more smoothly. With good documentation, the company might have avoided a lawsuit altogether. (In some cases, an employment attorney might recommend providing some severance pay in exchange for a release of claims, depending on the reason for the termination. That’s another discussion, though.)
Well, there’s some food for thought for your upcoming holiday weekend, hmmm? See you next time.
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