Josephs v. Pacific Bell, 432 F.3d 1006 (9th Cir. 2005)

Joshua Liam Josephs, a former Pacific Bell service technician, sued PacBell for mental disability discrimination in violation of the ADA and the California Fair Employment and Housing Act. PacBell hired Josephs after he checked “No” to a question on his employment application asking whether he had ever been convicted of a felony or misdemeanor. PacBell, which is permitted by statute to obtain a detailed criminal history of its employees who have unsupervised access to customers’ homes, later discovered that Josephs had been tried for attempted murder (but was found not guilty by reason of insanity) and had been convicted of a misdemeanor battery on a police officer. PacBell also learned that Josephs had been committed to and had spent 2½ years in a California state mental hospital and six months in a board-and-care mental health facility. Shortly after learning this information, PacBell suspended Josephs and then terminated his employment for making fraudulent entries on his employment application. At trial, the jury determined that PacBell’s termination of Josephs was nondiscriminatory, but that the company’s refusal to reinstate him after he grieved the termination through the union was unlawful because PacBell regarded him as mentally disabled in violation of the ADA. The Ninth Circuit affirmed the judgment in favor of Josephs on the ground that “the evidence simply does not compel a conclusion that, in the eyes of PacBell, Josephs was not qualified for the service technician position because of his past violent acts.” Cf. Claudio v. Regents of the Univ. of Cal., 134 Cal. App. 4th 224 (2005) (given the “unusual circumstances” of this case, employer should have engaged in the interactive process with disabled employee’s attorney rather than the employee himself).