Tuesday, December 27, 2005
Update: Much more on this case from All Deliberate Speed here.
Breaking news on the disability discrimination front from How Appealing:
Divided three-judge Ninth Circuit panel affirms finding of Americans with Disabilities Act violation against PacBell for refusing to reinstate a service technician who did not disclose on his employment application that he had been found not guilty of attempted murder by reason of insanity: That'll teach the phone company to only ask prospective employees "Have you ever been convicted of, or are you awaiting trial for a felony or misdemeanor?" You can access today's Ninth Circuit ruling [in Josephs v. Pacific Bell, No. 03-56412 (9th Cir. Dec. 27, 2005)] at this link.
Circuit Judge Consuelo M. Callahan's dissenting opinion begins, "As presented to us, this case requires that Pac Bell reinstate as a service technician a person it believes may pose a danger to its customers. I dissent because unless it is determined that Pac Bell's concern that Josephs is dangerous is unreasonable, Pac Bell should not be required to send him into its customers' homes."
The decision is also interesting because it upholds liability on a "regarded as" disabled claim.
It's an even more interesting case than that. Josephs originally put on his employment application for a service technician position ("A service technician performs unsupervised, in-home telephone installation or repair") in 1997 that he had never been convicted of a felony or misdemeanor, but in fact:
In 1982, Josephs was arrested, and subsequently convicted for misdemeanor battery on a peace officer. He was also arrested for attempting to murder a high school friend who
was a quadraplegic. Josephs was found not guilty by reason of insanity, spent two-and-a- half years in a state mental hospital, and was released in 1985.
When the company found this out, they terminated his employment. The jury found the company unlawfully failed to reinstate Josephs by mistakenly regarding him as mentally disabled.
I guess (and Sam B. or Michael W. if you are out there can correct me), direct threat to the health and safety of others would not apply because Josephs in fact did not have such a disability and was just wrongly regarded as having one. But what about the fact that Josephs appears to have lied on his employment application and that such an employee might cause an employer to face negligent hiring and retention liability if he should act out again on one of its customers at their home?
In any event, this is an extremely complicated (and unsettling) case, and I would love to hear individual's impressions after they have had a chance to digest the opinion.
Hat Tip: Howard