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Ex-Con Wins ADA Case Against PacBell

Joshua Josephs claimed his criminal record was clean when he applied for a service technician position with Pacific Bell in 1998.

Several months after the company hired him, PacBell received the results of Josephs' background check, which revealed some disturbing information. In 1982 Josephs was convicted of misdemeanor battery of a police officer and had been tried on charges of attempted murder, but found not guilty by reason of insanity. PacBell terminated him.

Josephs, a union member, filed a grievance for reinstatement, which the company denied. Soon after, Josephs filed suit alleging PacBell violated the ADA and the California Fair Housing and Employment Act by terminating him and refusing reinstatement.

A jury found in favor of PacBell on the termination claim, reasoning that the company fired Josephs on the nondiscriminatory ground of providing false information on his application. However, the jury found PacBell liable for failing to reinstate Josephs, and awarded him $1 million. In December 2005 the 9th Circuit upheld the lower court's ruling and denied rehearing en banc April 10.

"The danger of this case is that before a company can turn down someone with a violent past, it has to have some greater proof than it's good commonsense judgment to turn them down," says Richard Paul, a partner at Paul, Plevin, Sullivan & Connaughton and attorney for PacBell.

Institution Retribution

PacBell thought it was using good judgment when it refused to reinstate someone with Josephs' history into a position where he would be entering customers' homes, but ultimately, the decision violated the ADA. The appellate court highlights in its decision that a plea of insanity doesn't necessarily equate to mental illness that employers must accommodate under the ADA. Yet the court found that based on Josephs' insanity plea and his stay at a mental institution, PacBell assumed Josephs was mentally ill and refused to reinstate him on that prohibited basis.

"The court found that PacBell should not have relied on his having had a history without there being any evidence that there was a current problem," says Judy Droz Keyes, a partner at Davis Wright Tremaine in San Francisco.

Furthermore, PacBell foiled its own argument once the court allowed the plaintiff to use statements made in the grievance process as evidence in the trial. During these grievance proceedings, PacBell managers openly expressed their fears that Josephs presented a threat.

"The jury looked at those statements and said, 'Obviously they took into consideration his mental disability,'" Paul says.

Different Factors

In hindsight, PacBell could have taken steps to avoid the Josephs case altogether. First, PacBell could have transferred Josephs to a different position, one that didn't allow him unsupervised entry into customers' homes. PacBell considered this option during grievance proceedings but balked.

"They didn't offer Josephs an alternative," says Margaret Hart Edwards, a partner at Littler Mendelson in San Francisco. "That's the most obvious thing they could have done differently."

PacBell also could have required Josephs to undergo a fitness for duty examination.

"The employer has a right under all the federal and state disability laws to require that an employee undergoes a physical or mental examination," Keyes says. "PacBell just relied on the fact that he had spent time in a mental institution."

Finally, PacBell could have refused to hire Josephs until after the background check was complete.

Regardless, PacBell's situation was not an easy one. It had to weigh the liabilities associated with a discrimination claim versus liabilities arising from an injured customer.

"PacBell was on the horns of a dilemma," Edwards says. "If it had reinstated Josephs into this position, and then he assaulted or killed a customer, the company would have been sued for negligent hiring."

Technology Editor

Keith Ecker

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