Question:

We have found pornography on an employee’s computer. How should we handle this? And, is an employee’s addiction to pornography protected under the Americans with Disabilities Act (ADA)?

Answer:

An addiction to pornography is not protected because under the ADA, it is not defined as a disability. According to ADA, the term disability does not include:

• Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders;
• Compulsive gambling, kleptomania, or pyromania; or
• Psychoactive substance use disorders resulting from current illegal use of drugs.

However, even if pornography qualified as a disability under ADA, an employer is not prevented from disciplining an employee with a disability for a violation of a company-established conduct rule. According to the Equal Employment Opportunity Commission (EEOC), if the conduct rule is job-related and consistent with business necessity, then all employees – with and without disabilities – are held to the same standard.

As long as your conduct rules are consistent with both EEOC and ADA requirements, your policy is enforceable regardless of an employee’s disability. Therefore, if your company’s policy was violated, it would be appropriate to follow your company’s corrective action policy.