The 9th Circuit recently upheld a jury decision from 2003 on a case in which an employer terminated an employee due to his criminal and mental health history. The employee, Joshua Josephs, worked for Pacific Bell for several months before it was discovered that he did not disclose the fact that he had been on trial and found not guilty of attempted murder by reason of insanity, although he was convicted of assault on a police officer. Mr. Josephs spent 3 years in a mental health facility before his employment with Pacific Bell. Having this knowledge, Pacific Bell felt that Mr. Josephs was a threat to the customers whose homes Mr. Josephs would have to enter. Mr. Josephs sued under the ADA and eventually won.
This suit poses some questions. First of all, most companies who use applications as part of the hiring process state that if any information is found to be omitted or false, the company reserves the right to terminate. Additionally, most companies (except those in Montana) are “at-will”. Mr. Josephs omitted this and his assault conviction information in the application process, although the very reasonable argument could be made that “not guilty by reason of insanity” is not a conviction, therefore he was not required to reveal that particular piece of information. Unfortunately, Pac Bell appears to have based his termination on the security issue based upon his mental health history, rather than the conviction omission, a decision that can appear to be discriminatory.
The court also makes the point that Mr. Josephs did not pose a threat to customers as the “attempted murder” charge involved pulling a respiratory plug on a friend who was in the hospital, rather than a random act of violence.
No matter which way you look at this case, I think the agreement can be made that it was another expensive lesson in how ADA is applied. It’s always unclear and I honestly believe that this case was murky at best.
As usual, its all part of the slippery slope we climb everyday. All you can do is dig in and try to hold on.
BTW-Mr. Josephs was awarded $500,000 and reinstatement of his position. Per various news reports, Mr. Josephs did not go back to work at Pacific Bell (now AT&T).
My first reaction was that I never would have terminated Mr Josephs without talking to my employment attorney first. Even then, I’m not sure I’d terminate him. I also would not have terminated him for being a threat to PB customers. I’d have tried some sort of negligent non-discolsure if there’s such a thing.
My second reaction was that PB does not do criminal screens on their employees? Would a criminal screen not disclose an innocent verdict? (I’m pretty sure it does).
All in all, $500K seems to be a pretty small award, the problem is that now he’s back to work. They probably would have paid much more than that to get rid of him once and for all.