Yes. Under similar facts, a federal appeals court agreed with a jury verdict that an employer violated the ADA when it refused to reinstate an employee because it regarded him as mentally disabled. Although the jury ruled that terminating the employee itself was not discrimination, the court recognized a separate claim under the ADA of "discriminatory failure to reinstate."

Future acts of violence. How did the jury reach its verdict? The employee argued his employer regarded him as suffering from a mental illness that might result in future acts of violence. During the grievance proceeding, the employer argued that the employee had been terminated because of his failure to disclose his misdemeanor conviction and name change. In the trial, however, the employee introduced evidence that a manager expressed concerns during the grievance proceedings about employing someone with the employee’s "background" to work in people's homes because he might "go off" on a customer. And when a union representative suggested that the employee be given a job that didn't involve customer contact, the manager replied that "people can still walk by," and that "under the advisement of legal, … they were not going to bring someone like that back … they had an image to uphold."

Additional evidence showed that during the grievance proceedings the employer discussed newspaper articles from the employee’s past, including statements that the employee was a "mentally disordered offender" who had been under psychiatric care. Further, the employer had access to the employee’s autobiography, which detailed his mental instability before his stay in the mental hospital. Consequently, the court found that the jury had plenty of evidence to support its finding that the employer regarded the employee as having a mental impairment.

Substantially limited in ability to work. The jury also found that the employer regarded the employee’s mental disorder as substantially limiting his ability to work in a broad range of jobs. Under the ADA, when the "major life activity" that is "substantially limited" is working, the employee must be regarded as unable to work in a "class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." Statements by the employee’s supervisor that the employer wanted to "eliminate the possibility" of employing someone such as the employee, that the employer considered him unfit for any job with the company, and, that if he was given a different job without customer contact "people can still walk by," amply supported the jury's finding that the employer viewed the employee as having a mental disability that substantially limited him in the major life activity of working.

Qualifications. Finally, although the employer also argued that the employee’s past violent acts made him unqualified for the position of service technician, the employee’s supervisor stated that the employee was performing well on the job and that he was considered a potential asset to the company. Additionally, the employee had ten years of experience performing a similar job with another company. Moreover, the employer introduced no evidence of written company policy prohibiting employment of persons who had committed past violent acts. In fact, the employer had reinstated one service technician who had a felony domestic violence conviction.

Although the jury was instructed that an employer may take into account a past history of violence in making employment-related hiring decisions, it nonetheless determined that the employee was qualified for the position. Agreeing, the court concluded that the evidence simply did not require a conclusion that, in the eyes of the employer, the employee was not qualified for the service technician position because of his past violent acts.