Tuesday, December 27, 2005

Ninth Circuit "Regarded As" Disabled Decision

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



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The case is confusing on a number of levels. Initially, it is complicated because of the two claims (1)discriminatory termination, and (2) discriminatory failure to rehire, as well as the mixed-motive instruction. The jury found no discriminatory termination, but found Pac Bell discriminated in failing to rehire plaintiff. There was evidence that three other employees who lied about prior criminal convictions on their employment applications were reinstated by the employer in the course of settling grievances over their termination. Thus the evidence of other employees "similary situated" employees being reinstated after lying about their convictions was central to the jury verdict and the court's decision.

PacBell argued that the plaintiff was not "qualified" for reinstatement because of his past violent acts. (It could not argue that his lying made him unqualified because it had in the past reinstated others who lied regarding their criminal history, although the dissent argues those comparators were not similary situated.)

However, the court found that the jury could have rejected PacBell's non-qualification defense because (1) Pac Bell lacked a written policy prohibiting the employment of someone performing violent acts, and (2) PacBell reinstated an individual who lied about a felony domestic violence conviction.

The court's implication that an employer must have a written policy prohibiting the employment of persons with a history of violence is disturbing. In determining whether someone is "qualified," the question arises whether a jury can make an independent determination based on the employer's standards and requirements, or whether an employer's honest, good faith belief in the lack of qualification is sufficent. I think the latter standard, used in Title VII cases, should apply, but the court apparently believed that the jury could make an independent determination, and therefore faulted the employer for not having a written policy.

Posted by: Potrzebie | Dec 28, 2005 6:47:19 PM

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