IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

CONSENT DECREE

Introduction

This Consent Decree (“Decree”) resolves a civil action brought by Plaintiff United States under the Americans with Disabilities Act of 1990, as amended (“ADA”) against Baltimore County, Maryland (“County”), to enforce the provisions of Title I of the ADA, 42 U.S.C. §§ 12111 et seq. (“Title I”), and its implementing regulations, 29 C.F.R. Part 1630, and Title V of the ADA, 42 U.S.C. § 12203 (“Title V”), and its implementing regulation, 28 C.F.R. § 36.206.

This action was initiated by complaints to the Department of Justice (“Department”) by applicants for County job vacancies, as well as the surviving heirs of a former County employee, and by charges filed by certain County employees with the Equal Employment Opportunity Commission (“EEOC”).  The EEOC investigated the latter charges and in each instance found reasonable cause to believe that the County had violated the ADA.  The EEOC referred the charges to the Department, in accordance with 42 U.S.C. § 12117, after attempts to resolve the charges failed.

Title I of the ADA prohibits employment discrimination on the basis of disability.  Among other things, Title I prohibits employers from requiring medical examinations or making disability-related inquiries of employees unless such examination or inquiry is shown to be job-related and consistent with business necessity.  42 U.S.C. § 12112(d)(4); 29 C.F.R. § 1630.14(c).  An employer is entitled only to the information necessary to determine whether the employee can perform the essential functions of the job with or without reasonable accommodations without posing a direct threat.  This means that, in most situations, an employer cannot request an employee’s complete medical records because they are likely to contain information unrelated to whether the employee can perform his or her essential functions or work without posing a direct threat.  See id.; EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (available online at http://www.eeoc.gov/policy/docs/preemp.html). 

The ADA also requires that employers treat the information they obtain from medical examinations and inquiries of applicants and employees as confidential, including medical information related to an occupational injury or workers’ compensation claim.  Such information can be disclosed only in limited circumstances.  See 42 U.S.C. §§ 12112(d)(3)(B), 12112(d)(4)(C); 29 C.F.R. §§ 1630.14(b)(1), 1630.14(c)(1), 1630.14(d)(1).

The ADA also prohibits employers from retaliating against individuals who oppose discriminatory activities or who make charges, testify, assist, or participate in any manner in an investigation, proceeding or hearing under the ADA.  42 U.S.C. § 12203.

The United States alleges that the County has engaged in a pattern or practice of discrimination in violation of Title I and its implementing regulations by: (1) requiring certain employees to submit to unnecessary medical examinations and unnecessary disability-related inquiries, that were not job-related and consistent with business necessity and were unrelated to those employees’ ability to perform their job-related functions (see 42 U.S.C. § 12112(d)(4)); (2) requiring certain employees to submit to medical examinations and disability-related inquiries that were improperly timed (e.g., while they were undergoing medical treatment or recovering from medical treatment, and not currently seeking to return to work) and therefore not job-related and consistent with business necessity (see 42 U.S.C. § 12112(d)(4)); (3) requiring certain employees to disclose overbroad medical history and medical records (including information wholly unrelated to the medical issues for which the County was purportedly evaluating the employees’ fitness for duty) (see 42 U.S.C. § 12112(d)(4)); (4) disclosing confidential medical information (see 42 U.S.C. § 12112(d)(4)(C)); (5) pursuing a policy and practice of excluding all otherwise qualified applicants for Emergency Medical Technician (“EMT”) job vacancies on the basis of disability, as defined by the ADA, as amended, because they have insulin-dependent diabetes mellitus (“Type I diabetes”), without showing that the policy and practice is job-related and consistent with business necessity (see 42 U.S.C. § 12112(d)(3)); and (6) engaging in retaliatory acts in violation of Title V of the ADA against one employee because he engaged in a protected activity under the ADA (see 42 U.S.C § 12203).

The United States alleges that the County’s policies and practices of denying individuals with disabilities their rights to equal employment opportunities violate Title I of the ADA, see 42 U.S.C. § 12117(a), which incorporates by reference Section 707 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-6. 

The County denied the allegations of this Consent Decree and the charges made by the complainants herein, and continues to deny the allegations.  The County contends that all medical examinations that it conducted and the decisions made relative to the aforementioned complaints were job-related and consistent with business necessity, that it has not engaged in retaliation against any person, and that it has maintained the confidentiality of medical records and information in accordance with applicable law.

The United States and the County agree that it is in the parties’ best interest, and the United States believes it is in the public interest, to resolve this lawsuit on mutually agreeable terms without further litigation.  Accordingly, the parties agree to the entry of this Decree without trial of any issues of fact or law raised in the Complaint.  Further, the parties agree that there has been no adjudication as to the merits of any of the claims raised herein and the fact that the County has entered into this Consent Decree should in no way be considered as evidence of guilt or liability that it has violated the law in any way.

I.    Jurisdiction and Venue

1.   This Court has jurisdiction over this action pursuant to 42 U.S.C. § 2000e‑5(f), and 28 U.S.C. §§ 1331, 1345.  The parties agree that venue is appropriate pursuant to 28 U.S.C. § 1391.
2.   The United States has the authority to initiate legal proceedings to enforce Title I of the ADA.  42 U.S.C. § 12117.
3.   Specifically, this action is based on Title I of the ADA, see 42 U.S.C. § 12117(a), which incorporates by reference Sections 706 and 707 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-5, 2000e-6, and Section 503 of Title V of the ADA, 42 U.S.C. § 12203.
4.   The County is a person within the meaning of 42 U.S.C. § 12111(7) and 42 U.S.C. § 2000e(a), is an employer within the meaning of 42 U.S.C. § 12111(5) and 42 U.S.C. § 2000e(b), and is a covered entity within the meaning of 42 U.S.C. § 12111(2). The EEOC received timely charges and issued a cause determination on the following individual charges:           

[REDACTED]           
[REDACTED]           
[REDACTED]           
[REDACTED]           
[REDACTED]           
[REDACTED]           
[REDACTED]           


EEOC Charge No. 531-2009-00514
EEOC Charge No. 531-2007-02054
EEOC Charge No. 531-2009-00565
EEOC Charge No. 531-2007-02106
EEOC Charge No. 531-2007-01856
EEOC Charge No. 531-2007-00423
EEOC Charge No. 531-2009-00687



 

 
5.   All EEOC charging parties, with the exception of [REDACTED], alleged that they were subjected to unlawful medical examinations and inquiries.
6.   In addition, the Department received and investigated a complaint on behalf of [REDACTED] (on whose behalf an EEOC charge was not filed), and concluded that the County had subjected him to unlawful medical examinations and inquiries in violation of the ADA. 
7.   The Department alleges that the individuals listed in paragraph 8, below, have disabilities within the meaning of 42 U.S.C. § 12102(1).
8.   Further, the Department received and investigated complaints from [REDACTED] and [REDACTED], and concluded that the County had violated the ADA by excluding both individuals, who may otherwise have been qualified for EMT job vacancies, by using qualification standards that were not job-related for the positions in question or consistent with business necessity.

Accordingly, the parties hereby AGREE and the Court expressly APPROVES, ENTERS AND ORDERS THE FOLLOWING:

II.    Injunctive Relief

9.   The County, by and through its officials, agents, employees, and all persons in active concert or participation with the County in the performance of employment or personnel functions, shall not engage in any act or practice that discriminates against any applicant for employment or incumbent employee on the basis of disability, in violation of the ADA, including Title I and its implementing regulation, 29 C.F.R. Pt. 1630, and Title V and its implementing regulation, 28 C.F.R. § 36.206. 
10.   The County, by and through its officials, agents, employees, and all persons in active concert or participation with the County in the performance of employment or personnel functions, shall not engage in any act or practice that discriminates against any individual in violation of Title II of the Genetic Information Nondiscrimination Act (“GINA”), 42 U.S.C. §§ 2000ff et seq.
11.   In conducting any medical examination or inquiry, the County shall adopt policies to follow the procedures set out in this paragraph:
1.   To the extent that post-offer pre-employment medical examinations or inquiries are administered, they must be required of all entering employees in the same job category.  If the County withdraws an offer of employment based on the results of the post-offer pre-employment medical examination or inquiry, it must have evidence showing that the reason for doing so was job-related and consistent with business necessity.  The County can meet this standard by showing that it has a reasonable belief, based on objective evidence, that as a result of a disability, the applicant cannot perform the essential functions of the job, with or without a reasonable accommodation, or that the applicant will be unable to perform the essential functions of the job without posing a direct threat as that term is defined within the ADA.  See 42 U.S.C. §§ 12112(d)(2), 12113(b).
2.   All medical examinations or inquiries of incumbent employees, including fitness for duty examinations (“FFDEs”) or independent medical evaluations (“IME”), shall be conducted only where they are job-related and consistent with business necessity.  The County can meet this standard by showing that it has a reasonable belief, based on objective evidence, that an incumbent employee’s current ability to perform essential job functions with or without a reasonable accommodation is being impaired by a medical condition or that an incumbent employee’s medical condition is currently making the employee a direct threat as that term is defined in the ADA.  See 42 U.S.C. §§ 12112(a), 12113.  Examples of medical examinations or inquiries of employees that violate the ADA and this Consent Decree include medical examinations or inquiries that are:
   1.   Triggered by outdated medical information;
   2.   Based on general concerns about an employee’s health unrelated to job performance; or
   3.   Required while an employee is undergoing medical treatment or recovering from medical treatment, and not currently seeking to return to work, even though the employee intends to do so, subject to any applicable defenses that may be raised in accordance with paragraph 42 herein.
12.   Any medical information elicited or collected from any source for use in any medical examination or inquiry must be limited in scope to exploring the medical condition only to the extent necessary to confirm (a) the individual’s ability to perform the essential functions of his or her job, with or without a reasonable accommodation, or (b) whether the individual poses a direct threat to the health or safety of the individual or others in the workplace.  See 42 U.S.C. §§ 12112(d)(4), 12113 and 29 C.F.R. § 1630.2(r).
13.   Any medical information elicited or collected from any source regarding the medical condition or history of an applicant or employee must be maintained on separate forms and in separate medical files and treated as a confidential medical record.  See 42 U.S.C. § 12112(d)(3), (4).  Disclosure of medical information collected from an applicant or an employee, including regarding an occupational injury or workers’ compensation claim, is limited.  Such information can only be disclosed to: supervisors and managers, who may be informed about necessary restrictions on the work or duties of the employee and necessary accommodations; first aid and safety personnel, when appropriate, if the disability might require emergency treatment; and government officials investigating compliance with the ADA, upon request.  See 42 U.S.C. §§ 12112(d)(3)(B), 12112(d)(4)(C); 29 C.F.R. §§ 1630.14(b)(1), 1630.14(c)(1), 1630.14(d)(1).
14.   Within forty-five (45) days of the entry of this Decree, the County shall refrain from using the medical services of the individual medical examiner that conducted medical evaluations of all of the following individuals:  [REDACTED], [REDACTED], [REDACTED], [REDACTED], [REDACTED], [REDACTED], and [REDACTED].  These are evaluations that the United States alleges were overbroad and not job-related or consistent with business necessity.  The County may continue to use the medical services of any other medical examiners that examined fewer than all of the individuals referenced in this paragraph.
15.   The County agrees that it will:
1.   Not automatically exclude job applicants who have diabetes mellitus and
2.   Implement a policy and procedures to ensure that an individual assessment of applicants with diabetes mellitus is conducted to determine the applicant’s present ability to perform the essential functions of the job with or without reasonable accommodations.  This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and the best available objective evidence.
16.   The County agrees to continue to provide its employees with reasonable accommodations, including, but not limited to, reassignment, where applicable, in accordance with the ADA.  In order to meet this requirement, the County agrees to engage in an interactive process upon notice of an employee’s need for a reasonable accommodation, as required by the ADA.  The duty to engage in an interactive process is triggered:
1.   When an employee provides notice that he or she needs a reasonable accommodation by indicating to his or her superior, or a County employee authorized to receive such requests, that he or she needs to change or modify the manner, extent, or method of his or her job duties or responsibilities; and/or
2.   When the County has notice that an employee needs a reasonable accommodation to perform the essential functions of his or her job.  The County may be placed on such notice through its knowledge of, for example, placement of work restrictions on the employee by physicians or communication received from the employee’s family members or treating physicians, or the County’s independent medical providers.
17.   The County shall not retaliate against any individual because that individual has opposed the County’s allegedly discriminatory policies or practices in any manner, or because that person has cooperated with the Department’s investigation of the County’s employment practices or any proceedings connected with that investigation or with the administration of this Decree.  Likewise, the County shall not retaliate against or coerce in any way any individual who is trying to exercise his or her rights under this Decree or engages in protected activity under the ADA.
18.    The County shall provide training on the ADA and GINA (“ADA/GINA Training”), to all current supervisory employees and all employees who participate in making personnel decisions, including, but not limited to, the transfer of employees (collectively, “Supervisors”).  The County shall provide such ADA/GINA Training to all Supervisors within one-hundred-twenty (120) days of the effective date of this Decree.  Such ADA/GINA Training shall also be provided to new Supervisors (whether by hire or promotion), following the effective date of this Decree, within thirty (30) days after the start of their supervisory position.  The County shall maintain attendance logs reflecting the date of the training and the names of all training attendees, along with the attendees’ job titles.
19.   This ADA/GINA Training shall cover the County’s responsibilities under ADA and GINA and include instruction on procedures for:  (1) conducting medical examinations and disability-related inquiries of employees and applicants; (2) engaging in an interactive process to assess the existence of reasonable accommodations to the known physical or mental limitations of otherwise qualified employees or applicants with disabilities to allow those applicants and employees to perform the essential functions of their jobs; and (3) the prohibition on retaliation against employees based on their protected activity, as defined by the ADA.
20.   The County shall send via electronic mail to Eugenia Esch, eugenia.esch@usdoj.gov, the proposed curriculum and training materials for the ADA/GINA Training for the Department’s approval within seventy-five (75) days of the effective date of this Decree.  The County shall adopt any revisions to the curriculum made by the Department.  The County shall also notify the Department via electronic mail no later than thirty (30) days before a training date of the trainer that the County has selected for such ADA/GINA Trainings, who shall be a person knowledgeable about the ADA and GINA.  At that time, the County shall provide the Department with a statement of the person’s knowledge of the ADA and GINA.
21.   Within sixty (60) days of the effective date of this Decree, the County agrees to provide the Department, via electronic mail, its written materials dealing with all hiring policies related to the administration of FFDEs and IMEs for all subsequent versions and/or revisions thereto (after the effective date of this Decree).  These materials shall be consistent with the provisions of this Decree.
22.   Within sixty (60) days of the effective date of this Decree, the County agrees to designate an employee (or employees) or consultant to address ADA and GINA compliance matters.  The designated employee(s) or consultant shall serve as the primary contact(s) on disability-related issues and concerns raised by applicants for County jobs and by County employees, and shall oversee and coordinate implementation of the requirements of this Decree including, but not limited to, Section II of this Decree.
23.   As of the entry of this Decree, all existing and future contracts between the County and any independent medical examiners (or any entity providing medical examiners to the County) shall contain a provision requiring the independent medical examiner to comply with the County’s policies and procedures on medical examinations and with the applicable portions of the ADA and GINA including, but not limited to, how a medical examination or inquiry of a County applicant or employee is conducted.  In addition, the County shall ensure that all existing and future contracts between the County and any independent medical examiners (or any entity providing medical examiners to the County) will include a requirement that each medical examiner be provided with training materials that covers the same content of the ADA/GINA Training described herein, prior to the medical examiner’s commencement of services to the County.  Each medical examiner shall certify that he or she has reviewed the ADA/GINA training materials.  The County will enforce those contractual provisions and will terminate the contract if the medical examiner does not comply therewith.  If the County receives information suggesting that any such medical examiner is not in compliance with the County’s policies and procedures on medical examinations and with the applicable portions of the ADA and GINA (including, but not limited to, how a medical examination or inquiry of a County applicant or employee is conducted), the County shall, at the least, advise the medical examiner of his or her noncompliance and provide the medical examiner an opportunity to correct his or her practices in order to avoid terminating the contract.  However, if the County on any further occasion receives information that the same medical examiner is not in compliance, the County will investigate that information and, if confirmed, will terminate the contract.

III.    Specific Remedial Relief

24.   The County will provide monetary and non-monetary remedial relief as outlined in Attachment A, which is incorporated herein and made part of this Decree, in conformance with the timeframes established in paragraph 25.
25.   The County will pay the specified monetary sums in Attachment A via counsel, Kathleen Cahill, within thirty (30) days of the effective date of this Decree.  All non-monetary relief outlined in Attachment A shall be made available to each claimant within thirty (30) days of the County’s receipt of his or her signed Release of All Claims, except as specified in Attachment A.
26.   Each monetary sum shall be subject to any applicable federal, state, and local taxes, in addition to other payroll tax withholding deductions, and the County shall issue an IRS Form W-2 to each claimant in the amount awarded to each claimant.  The County shall separately pay its share of all federal, state, and local taxes due on the monetary award (i.e., the County’s payments shall not be deducted from the monetary award to the claimants).

IV.    Reporting

27.   Six (6) months after the effective date of this Decree, and every six (6) months thereafter during the term of this Decree, the County shall provide a written report (“Report”) to the Department regarding its efforts to comply with this Decree.  The Report shall include, for the six-month period covered by the Report:
1.   A specific acknowledgment that the County has, for the instant reporting period, complied with the requirements of the Decree;
2.   A specific acknowledgement that the County has, for the instant reporting period, complied with the procedures set forth in paragraph 11, above;
3.   All copies of the attendance logs maintained for the ADA/GINA Training as required in this Decree;
4.   Notification if the County receives, investigates, and confirms information suggesting that any medical examiner is not in compliance with the County’s policies and procedures on medical examinations and with the applicable portions of the ADA and GINA and any actions taken by the County as a result, pursuant to paragraph 23, above; and
5.   Notification regarding any lawsuit, written complaint, charge, or grievance alleging that the County has violated Title I of the ADA and/or Title II of GINA.  Such notice will include, at a minimum, a description of the nature of the allegation, the name of the individual bringing the allegation, and all documentation possessed by the County relevant to the allegation.  The first Report filed with the Department under this Decree shall include all ADA Title I and/or GINA Title II lawsuits, written complaints, charges, or grievances of which the County is aware and that are pending or otherwise unresolved at the time the first Report is made.  All subsequent Reports shall include notice of all ADA Title I and/or GINA Title II lawsuits, written complaints, charges, or grievances made subsequent to the immediately previous Report, as well as those ADA Title I and/or GINA Title II lawsuits, written complaints, charges, or grievances reported in previous Reports that are still pending. 
28.   In addition to the requirements of paragraph 27, the County shall provide the following information to the Department:
1.   A description of the circumstances of each instance that the County withdraws an offer of employment based on the results of a post-offer pre-employment medical examination or inquiry.  This description must include the name; last known address, telephone number(s), and email address of the applicant; the date that the employment offer was withdrawn; and the justification for the withdrawal (including, but not limited to, any medical report generated on the applicant).   Such information shall be provided to the Department within ten (10) days after the County notifies the applicant of its decision to withdraw the conditional offer.
2.   A description of the circumstances of each instance that the County requires an employee to report for a medical examination and/or submit to a disability-related inquiry to assess the employee’s fitness for duty.  The description shall include the justification for requiring the employee to submit to such a medical examination and/or disability-related inquiry (including, but not limited to, any medical report generated on the employee).  Such information shall be provided to the Department within ten (10) days after the County requires the employee to submit to the medical examination and/or disability-related inquiry.  All information provided pursuant to reporting requirements under this Decree should be provided to the Department via overnight courier service to:  Eugenia Esch, U.S. Department of Justice, Civil Rights Division, Disability Rights Section, 1425 New York Avenue, N.W., Fourth Floor, Washington, D.C. 20005.

V.     Implementation and Enforcement

29.   Failure by the United States to enforce this Decree in its entirety or any of its provisions shall not be construed as a waiver of its right to enforce other provisions of the Decree.
30.   Titles and other headings contained in this Decree are included only for ease of reference and shall have no substantive effect.
31.   If any term of this Decree is determined by any court to be unenforceable, the other terms of this Decree shall nonetheless remain in full force and effect.
32.   The United States agrees that it will not file any lawsuit, other than the Complaint leading to the entry of this Consent Decree, regarding any of the claimants referenced in paragraphs 4, 6, and 8 above, as to any of the allegations raised on their behalf, or which could have been raised under the ADA on their behalf, in this Consent Decree or the referenced charges.  This provision does not prohibit the United States from exercising its rights under paragraph 33.
33.   The United States may review compliance with this Decree at any time.  If the United States believes that this Decree or any portion of it has been violated, it will raise its concerns with the County and the parties will attempt to resolve those concerns in good faith.  The United States will give the County thirty (30) days from the date it notifies the County of any breach of this Decree to cure that breach before filling a motion for contempt or taking any other action to enforce the Decree.
34.   This Decree shall be binding upon the County, its agents and employees.
35.   The signatories represent that they have the authority to bind the respective parties identified below to the terms of this Decree.
36.   This Decree, including Attachment A, constitutes the entire agreement between the United States and the County on the matters raised herein and no other statement or promise written or oral, made by any party or agents of any party, that is not contained in this written Decree, including its attachments, shall be enforceable.
37.   This Decree shall have no impact upon the rights or claims or any other individual not identified in this Decree who has made, or may make, claims against the County for policies and/or practices addressed herein.
38.   This Decree is not intended to remedy any other potential violations of the ADA and GINA or any other law, other than the violations alleged in the United States’ complaint in the above-captioned matter.
39.   This Decree does not affect the County’s continuing responsibility to comply with all aspects of the ADA.
40.   Nothing in this Decree shall preclude the United States from filing a separate action under the ADA for any alleged violation not covered by this Decree.
41.   Nothing in this Decree shall be construed as an admission of liability by the County for any allegations made herein.
42.   Nothing in this Decree is intended to limit the defenses that the County is afforded under applicable law.
43.   The effective date of this Decree is the date that the Court enters the Decree.
44.   The duration of this Decree will be three (3) years from the effective date.