The Americans with Disabilities Act makes it unlawful for employers to discriminate against individuals with disabilities, including mental impairments, or individuals even regarded as having such disabilities. Generally, the impairments addressed in the ADA do not encompass violent behavior, regardless of any underlying mental impairments. This particular exception recognizes an employer’s right and obligation to not expose their workforce and public to injury or harm.

Recently, however, the 9^th Circuit Court of Appeals alarmed employers when, in Josephs v. Pacific Bell, it upheld a jury verdict finding defendant liable under the ADA where the employer lacked a clear policy on workplace violence, failed to uniformly enforce it, and predicated employment decisions predominately on the basis of an employee’s mental illness, regardless of that same employee’s propensity for violence.

The plaintiff in this case was Josephs, who was hired by Pac Bell to be an in home telephone service technician. Plaintiff was charged with attempted murder for which he was found not guilty by reason of insanity. He spent time in a state treatment facility as a result of that finding. Upon release, he was subsequently charged with felony assault of a police officer and found guilty.

In the case, the Plaintiff did not disclose the assault conviction on his application and was terminated when the defendant found out about the conviction. During the Union grievance hearing to have Plaintiff reinstated, the conviction was expunged from his record. Defendant Pac Bell refused to reinstate Plaintiff based on his history of violence.

Evidence presented at trial demonstrated that corporate counsel for Pac Bell believed that the Plaintiff was a danger because of his illness and that other key employees regarded the plaintiff as crazy and likely to lose control at any time. This finding clearly met the “regarded as” provision of the ADA. Further, the court reasoned that the employer had not shown that the employment decision was solely predicated on his violent history, having reinstated several other employees who had omitted convictions from their record, most notably one employee who was convicted of felony domestic abuse.

The court also rejected the defendant’s argument that it was against their policy to hire employees with violent tendencies, citing that the defendant failed to introduce any evidence regarding such a formal policy. The court upheld the jury’s finding that the dismissal was a pretense, and that the decision was made, not based on fear of violence, but rather on his perceived mental illness.

What can employers take from this decision? They must formalize and distribute a policy regarding their hiring and retention of individuals convicted of violent crimes, engaging in violent activities or other behavior that could endanger co-workers or customers. The policy must be distributed and made known to employees. The 9^th Circuit in this case further emphasized the need for such a practice, noting the defendant’s failure to have a policy restricting the hiring of individuals with violent histories for high-risk positions.

Once a policy is in place, it is equally important to enforce it consistently. Doubtless, Pac Bell thought they were being lenient when they reinstated other employees who had violent histories or perhaps just trying to accommodate the Union. Making exceptions, however, dilutes an employer’s defense when practice does not follow policy.

Poor practices, inconsistent application of policy and the lack of formal written policy, in Josephs v. Pacific Bell, subverted the issue of violence in favor of the plaintiff’s disability. This is not to say that employers are required to hire such individuals, but rather to suggest that individuals prone to violence, with or without perceived disabilities, must be treated equally.