SETTLEMENT AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND FLORIDA STATE UNIVERSITY DJ No. 205-17-13

SETTLEMENT AGREEMENT
BETWEEN THE UNITED STATES OF AMERICA
AND
FLORIDA STATE UNIVERSITY
DJ No. 205-17-13

Press Release

1. The parties to this Settlement Agreement are the United States of America and the Florida State University Board of Trustees, a public body corporate of the State of Florida, acting for and on behalf of Florida State University, Tallahassee, Florida.

2. The United States Department of Justice is referred to as the “United States” or “Department;” the Florida State University as “FSU;” and the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. §§ 12101 et seq., as the “ADA.”

3. This Settlement Agreement (“Agreement”) resolves an investigation and compliance review conducted by the United States of the FSU Police Department under Title I of the ADA, 42 U.S.C. §§ 12111-12117, and its implementing regulations, 29 C.F.R. § 1630 et seq.

4. The parties agree that it is in their best interest, and the United States believes that it is in the public interest, to voluntarily enter into this Agreement, and agree as follows:

I. BACKGROUND

5. FSU is a person within the meaning of 42 U.S.C. § 12111(7) and 42 U.S.C. § 2000e(a), an employer within the meaning of 42 U.S.C. § 12111(5), and a covered entity within the meaning of 42 U.S.C. § 12111(2).

6. Under Title I of the ADA, it is unlawful for an employer to make inquiries as to whether an applicant is an individual with a disability, or as to the nature of such disability, before making a conditional offer of employment.  42 U.S.C. § 12112(d); 29 C.F.R. §1630.13(a)

7. On December 3, 2012, the Department notified FSU that the FSU Police Department’s  online law enforcement application form required applicants to provide information on “past or present physical handicap or disability” and other medical conditions.

8. The United States alleges that FSU has engaged in a pattern or practice of discrimination under the ADA by requiring FSU law enforcement applicants to submit their medical history and disclose any disabilities in their online applications prior to making an offer of employment.

9. FSU has fully cooperated with the compliance review and continues to be committed to compliance with the ADA.

II. GENERAL AGREEMENT

10. FSU, by and through its officials, agents, employees, and all persons in active concert or participation with FSU in the performance of employment or personnel functions, agrees that it shall not discriminate against an individual on the basis of disability, in violation of Title I of the ADA, 42 U.S.C. §§ 12111-12117.

11. FSU agrees that it will not conduct any medical examination or make any disability-related inquiry of a job applicant before a conditional offer of employment has been made to the job applicant, except as addressed in paragraphs 12 and 13. 

12. During the job application process, FSU may describe the hiring process to applicants (for example, the physical ability test components or that the writing exercise is based on a video), and may ask applicants whether they will need a reasonable accommodation for the process. If the need for accommodation is not obvious, FSU may require applicants to provide documentation from an appropriate professional, such as a doctor or a rehabilitation counselor, on the applicant’s disability and functional limitations. Disclosure of any medical or disability-related information received from an applicant requesting a reasonable accommodation for an interview or employment test shall be limited to personnel specified in Paragraph 16 below.  Any medical information elicited or collected from applicants shall be maintained as specified in Paragraph 16 below.

13. As a federal contractor subject to the affirmative action requirements of Section 503 of the Rehabilitation Act of 1973, as amended (“Section 503”) 29 U.S.C. §793, and its implementing regulation at 41 C.F.R. § 60-741.42, FSU is required to invite applicants to voluntary self-identify themselves as individuals with disabilities at the pre-offer stage of employment.  Any disability-related information elicited or collected from applicants shall be maintained as specified in Paragraph 16 below.

14. If the FSU Police Department withdraws a conditional job offer based on medical or disability-related information, FSU agrees to document and show either that the reasons for the exclusion are job-related and consistent with business necessity, or that the individual is being excluded to avoid a “direct threat” to health or safety; and that no reasonable accommodation is available that would enable the individual to perform the essential job functions without a significant risk to health or safety, or that such an accommodation would cause undue hardship.

15. FSU agrees that any medical information elicited or collected from any source for use in any medical examination or disability-related inquiry after a conditional offer has been made to an applicant will be limited in scope to exploring the medical condition only to the extent necessary to confirm: (a) the individual’s ability to perform job-related functions, 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); 29 C.F.R. §§ 1630.2(r); 1630.14, 1630.15.

16. FSU agrees that any medical or disability-related information elicited or collected from any source regarding an applicant or employee will be collected and maintained on separate forms and in separate medical files and treated as a confidential medical record.  Medical information collected from an applicant or an employee, including regarding an occupational injury or workers’ compensation claim, can only be disclosed to: (a) supervisors and managers who may be informed about necessary restrictions on the work or duties of the employee and necessary accommodations; (b) first aid and safety personnel, when appropriate, if the disability might require emergency treatment; and (c) government officials investigating compliance with the ADA or Section 503, on 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).

17. FSU shall provide training on the ADA (“ADA Training”), to all current supervisory employees of the FSU Police Department and to all employees of the FSU Police Department who participate in making hiring or personnel decisions within the FSU Police Department (collectively, “Trainees”).  FSU shall provide such ADA Training to all Trainees within ninety (90) days of the effective date of this Agreement.  Such ADA Training shall also be provided to employees of the FSU Police Department who become supervisory employees (whether by hire or promotion), following the effective date of this Agreement, within sixty (60) days after the start of their employment as a supervisor.  FSU shall also provide ADA Training to any employee of the FSU Police Department who participates in making hiring or personnel decisions within the FSU Police Department prior to that individual’s participation in such hiring or personnel decisions.  FSU shall maintain attendance logs reflecting the dates of the training and the names of all training attendees, along with the attendees’ job titles. 

18. The ADA Training shall cover FSU’s responsibilities under the ADA 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  determine appropriate reasonable accommodations to the known physical or mental impairments of otherwise qualified applicants or employees with disabilities to allow those applicants or employees to perform the essential functions of their jobs; and (3) for complying with the prohibition on retaliation against employees based on their protected activity, as defined by the ADA.

19. FSU shall send via electronic mail to Eugenia Esch, eugenia.esch@usdoj.gov, the proposed curriculum and training materials for the ADA Training within forty (40) days of the effective date of this Agreement.  FSU shall adopt any revisions to the curriculum and training materials made by the Department, unless FSU can articulate a legitimate and reasonable objection to any revision, in which case FSU and the Department agree to work promptly and in good faith toward a mutually agreeable resolution.  FSU shall provide the Department with the name(s) of the individual(s) who will routinely conduct ADA Trainings, who shall be a person knowledgeable about the ADA.  At the time that such individual(s) is identified, FSU shall provide the Department with a statement of the person’s or persons’ knowledge of and experience with the ADA. In the event that FSU will be utilizing a trainer other than the individual(s) already disclosed to the Department for an upcoming ADA Training, then FSU shall notify the Department via electronic mail no later than fourteen (14) days before a training date of the trainer that FSU has selected for such ADA Trainings, who shall be a person knowledgeable about the ADA.  At that time, FSU shall provide the Department with a statement of the person’s knowledge of and experience with the ADA.

20. Within sixty (60) days of the effective date of this Agreement, FSU agrees to designate an employee (or employees) or consultant to address ADA compliance matters.   FSU shall identify the designated individual(s) to the United States for approval, which shall not be unreasonably withheld.  The designated employee(s) or consultant shall be knowledgeable about or receive training on the ADA and shall serve as the primary contact(s) on disability-related issues and concerns raised by applicants for employment with FSU and by FSU employees, and shall oversee and coordinate implementation of the requirements of this Agreement.  The designated employee(s) or consultant shall report directly to the Director of Equal Employment and Opportunity and Compliance.

21. FSU agrees that all FSU Office of Human Resources and FSU Police Department training manuals, written materials, and online materials addressing FSU employees and hiring policies and practices shall be consistent with the provisions of this Agreement.

22. Within ninety (90) days of the Effective Date of this Agreement, FSU shall ensure that its FSU Police Department website, including its employment opportunities website and its mobile applications, conform to, at a minimum, the Web Content Accessibility Guidelines 2.0 Level AA Success Criteria and other Conformance Requirements (“WCAG 2.0 AA”).  The WCAG 2.0 AA is available at: http://www.w3.org/TR/WCAG20/.

23. Six (6) months after the effective date of this Agreement, and every six (6) months thereafter during the term of this Agreement, FSU shall provide a written report (“Report”) and which shall include the following:

• (a)   Any lawsuit, written complaint, charge, or grievance alleging that FSU has violated Title I of the ADA. The Report shall include, at a minimum, a description of the nature of the allegation, the name of the individual bringing the allegation, and documents in FSU’s possession relevant to the allegation; 

• (b)   A list of the FSU Police Department’s withdrawn conditional job offers based on medical or disability-related information, if any. The Report shall detail the reasons for the exclusion, for example, that the reason for the exclusion is job-related and consistent with business necessity, or that the individual is being excluded to avoid a “direct threat” to health or safety; and that no reasonable accommodation is available that would enable the individual to perform the essential job functions without a significant risk to health or safety, or that such an accommodation would cause undue hardship; and

• (c)   The attendance logs reflecting the dates of the training referenced in Paragraph 16 above, and the names of all training attendees, along with the attendees’ job titles. 

24. FSU shall not retaliate against any person because that person has opposed FSU’s allegedly discriminatory policies or practices in any manner, or because that person has cooperated with the Department’s investigation of FSU’s employment practices or any proceedings connected with that investigation or with the administration of this Agreement.

III. IMPLEMENTATION AND ENFORCEMENT

25. The United States may review compliance with this Agreement at any time.  If the United States believes that this Agreement or any portion of it has been violated, such concerns will be brought to the attention of FSU, and the parties will attempt to resolve the concerns in good faith.  The United States will provide FSU thirty (30) days from the date it notifies FSU of any breach of this Agreement to cure that breach before instituting a civil action in the appropriate United States District Court to enforce this Agreement or to otherwise enforce Title I of the ADA.

26. This Agreement is not intended to remedy any other violations or potential violations of the ADA or any other federal or state law other than the violations alleged by the United States in this Agreement.

27. This Agreement contains the entire agreement between the United States and FSU on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by any party or agent of any party, that is not contained in this Agreement shall be enforceable.

28. This Agreement does not affect FSU’s continuing responsibility to comply with all aspects of the ADA.

29. If any provision of this Agreement is determined to be invalid, unenforceable, or otherwise contrary to applicable law, such provision shall be deemed restated to reflect as nearly as possible, and to the fullest extent permitted by law, its original intent, and shall not affect any other provisions of the Agreement, all of which shall remain in full force and effect. 

30. Failure by the United States to seek enforcement of any provision of this Agreement shall not be construed as a waiver of the United States’ right to enforce other provisions of this Agreement. 

31. A copy of this Agreement or any information contained herein may be made available to any person, and the FSU shall provide a copy of the Agreement to any person upon request.

32. The effective date of this Agreement is the date of the last signature below.

33. The duration of this Agreement shall be three (3) years from the effective date.

34. This Agreement shall be binding upon FSU, 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 Agreement.