Surprisingly Controversial Ninth Circuit Employment Case

While I was away, Howard Bashman sent me a link to the Ninth Circuit's recent decision in Josephs v. Pacific Bell. The case has already gotten some blogospheric reaction, so I thought I'dd add my two cents.

The basic story is this: Josephs worked as a service technician for PacBell. On his job application, he checked "NO" in response to a question whether he had ever been convicted of a felony or misdemeanor. In fact, he had been convicted of a 1982 misdemeanor battery of a police officer; in 1982, he was also found not guilty by reason of insanity of a charge of attempted murder. He then spent about three years in mental health institutions. When PacBell learned this, it discharged Josephs for lying on his job application. Josephs grieved the termination, and during the grievance process he got his misdemeanor conviction expunged. He then asked to be reinstated. In the past, the company had reinstated at least three other employees who were fired for lying about misdemeanor convictions and subsequently had them expunged. But PacBell refused to reinstate him. A PacBell Vice President said, according to the court, that "unlike the other employee, Josephs had spent time in a 'mental ward,' and that Pac Bell could not afford to have people out there who had been released from a mental institution." Josephs sued under ADA Title I. The jury found that the initial termination was not discriminatory, but that PacBell's refusal to reinstate Josephs was. The jury found, in special verdicts, that PacBell regarded Josephs as having a disability and that the company refused to reinstate him because of his disability. The Ninth Circuit, in an opinion by the noted commie Edward Leavy, affirmed, though Judge Callahan dissented.

I guess I don't understand the problem here. As the majority describes them, the facts before the jury certainly supported a finding of discrimination. Josephs wasn't reinstated after expungement when others who lied about their misdemeanor convictions were. Why? Because he had spent time in a "mental ward." Sounds like the reason was the disability they regarded Josephs as having, doesn't it? So I don't understand why Judge Callahan thought the other reinstatements were irrelevant. They were the comparators that prove that Josephs experienced disparate treatmente.

Maybe PacBell thought that Josephs would be a danger to their customers because of his history. (That's what Judge Callahan led her dissent with.) But the ADA requires an employer to prove that an employee's disability presents a significant risk to the health or safety of others, not just assume it does. (Pace Paul, I don't see any reason why the "direct threat" provision shouldn't apply here.) As even Judge Callahan noted, Josephs presented "evidence to support his contention that his past does not create any likelihood of future dangerousness." Judge Callahan seemed to be upset that the district court didn't put the burden on Josephs to prove that he wasn't dangerous. But (a) that's inconsistent with the notion that direct threat is a defense that the employer must prove; and (b) Judge Callahan doesn't point to any evidence PacBell introduced to show that he was dangerous other than their reflexive fears.

Based on the facts reported in Judge Leavy's majority opinion, I think it would have been outrageous if this case had gone the other way.