The storyline appearing in the December 29, 2005, New York Times is alluring and lurid -- a federal court rules that a fired employee who worked installing and repairing phone lines in people's homes, and who was also found not guilty by reason of insanity after he tried to murder a quadriplegic high school classmate by unplugging his respirator, should have been rehired by the company. The company's failure to do so meant that it was liable for a $500,000 jury verdict, as well as attorneys' fees, according to the 9th Circuit Court of Appeals. Josephs v. Pacific Bell, et al., No. 03-56412 (Dec. 27, 2005).
Outrageous, right? Once again, the 9th Circuit proves that it doesn't live in the real world. Its decision puts the employer, Pacific Bell, between the rock of liability under the Americans With Disabilities Act, and the hard place of a negligent retention lawsuit as the result of having an attempted murderer with a history of mental instability making service calls on its customers' homes. What's an employer to do?
Well, hold on. The verdict is not only understandable, it is practically mandated by the way the company handled the matter. Unfortunately for the employer, comments made by its management team at the plaintiff's grievance arbitration focused on the plaintiff's mental disability rather than the conduct that was of concern to Pacific Bell. For example, the general manager for the company testified about his concern in employing somebody with the plaintiff's "background" to work in people's homes and rejected a request by the union to put the plaintiff in a different job that did not involve customer contact because, "people can still walk by," and because the company, "had an image to uphold." A Pacific Bell VP attending another part of the grievance process told the union representative that the company would not reinstate the plaintiff because he had spent time in a mental ward and that Pacific Bell could not afford to have people "out there" who had been released from a mental institution. Given these comments, it is no surprise that the 9th Circuit found that there was adequate support for a jury's verdict that Pacific Bell regarded the plaintiff as disabled under the ADA and that the basis of the company's decision was this disability, rather than the conduct in which plaintiff engaged. The company's position that it regarded plaintiff as unemployable because of his activities was undermined further by the fact that it had allowed an employee convicted of felony domestic violence (although not attempted murder) to return to a service technician position.
While I cringe at the prospect faced now by Pacific Bell, this outcome is not surprising. Employers have to focus on conduct in these types of cases, and not on the underlying cause, as the basis of an employment decision. To use an every day example, it is permissible to discharge someone for driving while intoxicated, but not for being an alcoholic. Even in California.