Thursday, December 29, 2005

 

Priors for Attempted Murder, Insanity, an ADA Disability


Joshua Joesephs’ record wasn’t spotless. Whose is? There was that attempted murder, but that was 15 years ago, and anyway he was acquitted by reason of insanity and spent 2 ½ years in the bin, taking the cure. Even a prior assault, on a police officer, had been expunged (whatever that means, it is clearly a point in his favor, as compared to non-expunged). So he didn’t mention those matters when he applied at Pacific Bell for a job as a service technician, installing and repairing phone lines in people's homes. Would you? But when the company found out they unlawfully fired him. Fortunately he was protected by the Americans with Disabilities Act, and the ninth circuit in San Francisco affirmed a $500,000 judgment for him.

"While PacBell's counsel testified that it was her 'belief' that someone who attempted to kill another person should not be in a service technician position," Judge Edward Leavy wrote for the majority, "PacBell introduced no evidence of a written company policy prohibiting employment of person who had committed violent acts.”

The company took the position that it was enough that Josh had tried to kill someone and would be in peoples homes unsupervised. Dissenting Judge Callahan noted that if Josh attacked someone while on the job, the potential liability of Pac Bell would be “obvious and sizable”. Josh’s lawyer said that Josh was no longer a threat because he was cured.

So there you have it. You just can’t discriminate against someone because you think they have a disability, such as being insane or dangerous. You need a written policy that you don’t hire in that instance, and you need to be able to prove that they are, in fact insane or dangerous, or perhaps both, currently. Also, you need to check with your lawyer about the questions on your employment application. It is illegal to ask if a person has been arrested, but OK to ask if he has been "convicted". But can you ask if he has been found not guilty by reason of insanity? Of course not, but it is fun to ask your lawyer to explain things like that.

If you are a homeowner, you probably didn’t know the phone company actually had anyone that would come in your home. I have always heard that their responsibility stops at the pole. Maybe that is not as dumb as I thought.

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