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.
