The Analysis: The Employee Begged for Dismissal

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

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Within a month of it being discovered that Greg Kale* 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 Greg. "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 Greg or the company. Ryan notes the company's IT department had evidence Greg 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 Greg was fired, Jackson Ford, a partner of the firm, had told the rest of the employees that Greg 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 Greg 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 Greg 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.

Rebecca Reisner is an editor at BusinessWeek.com .