Wednesday, December 28, 2005

ADA decision

In a decision that demonstrates why some people view the Americans with Disabilities Act as out of control, the Ninth Circuit has affirmed a verdict finding that Pacific Bell (otherwise known as SBC) acted illegally in firing a service technician. Here are the basic facts:
In late 1997, Josephs applied for a service technician position with PacBell. Service technicians perform unsupervised, in-home telephone installation or repair. Josephs had been employed for ten years in a similar position with Cox Communications. Josephs checked “NO” in answer to PacBell’s employment application question, “Have you ever been convicted of, or are you awaiting trial for a felony or misdemeanor?”

He was hired for the position in January 1998. Under California Penal Code § 11105(c)(9), PacBell is authorized to obtain the detailed criminal history of employees who will have unsupervised access to customers’ homes. After Josephs had been working for approximately three months, PacBell obtained his criminal history. Following some initial internal confusion as to the contents of the report, PacBell determined that Josephs had been arrested in 1982 for attempted murder and was found not guilty by reason of insanity, and that Josephs had been convicted in 1985 for a 1982 misdemeanor battery on a police officer.
The basis for the lawsuit was that "PacBell regarded him as suffering from a mental illness that might result in future acts of violence." And under the ADA, it is illegal for an employer to discriminate against an employee based on a belief that the employee has a mental illness.

Most businesses would rationally think it too risky to send out a technician into people's homes when that technician had committed attempted murder, and had escaped a guilty verdict only by reason of insanity. Indeed, if the technician had harmed a customer, Pacific Bell would readily be subject to a lawsuit for negligent hiring, as well as for any harm committed by the employee. After all, employers are usually liable for the harms their employees commit on the job.

On a slightly different angle, note that there was a dissent here, by Judge Consuelo Callahan. If Callahan were ever nominated for the Supreme Court, this dissent would surely be portrayed as "anti-civil rights." Something to keep in mind.

UPDATE: Note that I'm not criticizing the Ninth Circuit for getting this decision wrong. Without reviewing the record, the trial, and the briefs in detail, I wouldn't feel prepared to make that judgment. In fact, it might well be the case that if I were a judge, I would feel compelled by the law in the case to vote with the majority. My point here is that if the ADA requires companies to hire (or refrain from firing) mentally ill would-be murderers, the ADA itself should be cut back.


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