When Joshua Josephs applied for a service tech position with Pacific Bell Telephone Co., he checked “no” to the job application question, “Have you ever been convicted of, or are you awaiting trial for, a felony or misdemeanor?” Josephs was hired for the position, which required him to install and repair phones unsupervised in homes, a job he performed for another employer for 10 years.
A few months later, Pac Bell obtained Josephs’ criminal history. The records indicated that 15 years before, Josephs was found not guilty by reason of insanity for the attempted murder of a quadriplegic friend and was convicted three years later for a misdemeanor battery on a police officer. The company also learned he spent several years in a state mental hospital before his release on parole for the attempted murder charge. PacBell then discharged Josephs for “fraudulent entries” on the job application and withholding information about his past, which violated the company’s code of conduct.
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Employer Refuses Reinstatement
Josephs sought reinstatement, but PacBell refused, even though it had previously reinstated several employees who lied about their criminal records. PacBell said Josephs’ situation was different because he had spent time in a “mental ward” and PacBell couldn’t afford to have techs out in public who had been released from a mental institution.
Josephs sued, charging that PacBell fired him and then refused to reinstate him because it regarded him as mentally disabled, in violation of the Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act. A jury found the termination was legal—but awarded him approximately $500,000 in back pay and other damages on the re-instatement denial claim. PacBell appealed, and now the Ninth Circuit has upheld the verdict.
Verdict Upheld
First, the court ruled that an employee can state a claim under the ADA for failure to reinstate, even if the initial discharge was legal. Second, the court said it was reasonable for the jury to find that PacBell illegally refused to give Josephs his job back because it regarded him as mentally disabled. PacBell management believed he was unemployable because he had been in a “mental ward” and might “go off” on a customer. And, testimony revealed that PacBell considered Josephs unfit for any job with the company, not just jobs requiring unsupervised access to customers’ homes.
PacBell unsuccessfully argued that Josephs was unqualified because of his past violent acts. The court noted that Josephs had a good performance record and 10 years’ prior experience performing a similar job with another company. Also, despite PacBell’s assertion that an attempted murderer shouldn’t be employed as a service tech, the court pointed out that PacBell had no written policy prohibiting employment of individuals who committed violent acts. In fact, the company once reinstated a service tech who had a felony domestic violence conviction.
What Can You Do?
PacBell wasn’t liable for bias in connection with firing Josephs for lying about his criminal record. What caused trouble was the refusal to reinstate him, apparently based on assumptions regarding his past mental illness, rather than on the original dishonesty offense. Thus, this case doesn’t limit you from taking action against an employee for lying on a job application.
What’s more, you can refuse to employ someone based on a history of violence if the person poses a direct threat to others. The problem here, however, was that PacBell relied on assumptions about Josephs’ mental stability and didn’t assess the risk of harm.
Here are tips for avoiding problems:
- Don’t rely on assumptions or stereotypes. If you believe an employee’s condition poses a threat, make an individual assessment of the situation. Have a professional evaluate the person’s fitness to perform the job, and be sure to provide the evaluator with a detailed job description, including any psychological and safety requirements.
- Be consistent. Harold Brody, a partner in the Los Angeles law office of Proskauer Rose, says many employers have policies to disqualify applicants who have been convicted of crimes. But this policy won’t protect you if you apply it inconsistently.
- Hire smart. It’s important to conduct background checks and obtain the results before allowing new hires to start work, Brody notes.
Josephs v. Pacific Bell, U.S.C.A. 9th Cir. No. 03-56412, 2005