IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION AT JACKSON



UNITED STATES OF AMERICA,

Plaintiff-Intervenor

v.

STATE OF TENNESSEE
Defendant.
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CIVIL ACTION No. 1:98-1357
JUDGE JAMES D. TODD







CONSENT ORDER AND FINAL JUDGMENT


Jurisdiction

1. This Court has jurisdiction over this action under 42 USC § 2000e-5(f) (incorporated by reference in 42 U.S.C. § 12117(a)), 28 U.S.C. §§1331 and 1345, and 28 USC § § 2201-2202. This Court has authority to grant equitable relief under 42 U.S.C. §§ 12117, 12133 and 28 U.S.C. §§ 2201 and 2202.

The Parties

2. The defendant State of Tennessee is a person within the meaning of 42 USC § 12111(7) and 42 USC § 2000e(a); an employer within the meaning of 42 USC § 12111(5); and a covered entity under 42 USC § 12111(2). The defendant State of Tennessee is a public entity within the meaning of 42 USC § 12131(1).

3. The United States Department of Justice (“DOJ”) is the federal agency responsible for administering and enforcing Title II and Title I (with respect to public employers) of the Americans with Disabilities Act, 42 USC §§ 12111-12134.

Contentions of the Parties

4. The United States alleges that the State of Tennessee has enacted, implemented, and failed to revoke four statutes – Tennessee Statutes § 41-1-116, § 37-5-117, § 8-8-102, and § 38-8-106 – that exclude all persons who are not free from apparent mental disorders from the positions of sheriff, police officer, correctional officer, and youth service officer. These statutes violate the Americans with Disabilities Act (“ADA”) by creating a blanket exclusion of all individuals with “apparent mental disorders” from certain types of employment. These statutes state, in relevant part:

a. Any person employed as a correctional officer by the department of correction shall:... Be free from all apparent mental disorders. Correctional officers hired after January 1, 1984, must be certified as meeting this criterion by a qualified professional in the psychiatric or psychological fields. Tennessee Statute § 41-1-116.

b. After July 1, 1989, any person employed as a youth service officer by the department of children’s services shall:... Be free from all apparent mental disorders. Applicants must be certified as meeting this criterion by a qualified professional in the psychiatric or psychological fields. Tennessee Statute § 37-5-117.

c. To qualify for election or appointment to the office of sheriff, a person shall:... Have been certified by a qualified professional in the psychiatric or psychological fields to be free of all apparent mental disorders as described in the Diagnostic and Statistical Manual of Mental Disorders, Third Edition (DSM-III), or its successor, of the American Psychiatric Association. Tennessee Statute § 8-8-102.

d. After July 1, 1981, any person employed as a full-time police officer, and after January 1, 1989, any person employed/utilized as a part-time/temporary/reserve/ auxiliary police officer or as a special deputy, shall:... Be free of all apparent mental disorders as described in the Diagnostic and Statistical Manual of Mental Disorders, Third Edition (DSM-III) of the American Psychiatric Association. Applicants must be certified as meeting these criteria by a qualified professional in the psychiatric or psychological field. Tennessee Statute § 38-8-106.

5. The United States alleges that the State of Tennessee has promulgated policies implementing Tennessee Statutes § 41-1-116, § 37-5-117, § 8-8-102, and § 38-8-106, which violate the ADA.

6. The United States alleges that the State of Tennessee has promulgated a policy regarding physical qualifications for job applicants and employees that violates the ADA. This policy uses the following or similar language: “Defects, disorders or physical handicaps which shall, in the physician’s judgment, be aggravated by service or lead to absenteeism or disability claims shall cause rejection. Other causes for rejection may include active communicable diseases, illness, or injuries which pose a likelihood of harm to self or others if employed in this setting.”

7. The United States alleges that the four statutes listed in Paragraph 4 above and the policies described in Paragraphs 5 and 6 above discriminate against individuals with disabilities, in violation of Title I of the Americans with Disabilities Act (“ADA”), 42 § 12111 - 12117, and its implementing regulation, 29 CFR Part 1630, and Title II of the ADA, 42 USC § 12131 - 12134, and its implementing regulation, 28 CFR Part 35. Specifically, these statutes and policies discriminate against individuals on the basis of disability, in violation of 42 USC § 12112(b)(6) and 29 CFR § 1630.10, by using qualifications standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities, when the standard, test or other selection criteria, as used by the covered entity, has not been shown to be job related for the position in question and consistent with business necessity.

8. The Defendant State of Tennessee denies that it has violated the ADA, but admits that portions of the Tennessee statutes at issue contain blanket presumptions which may, if applied, and under certain circumstances, violate the ADA and applicable regulations.

WHEREFORE, in the interest of resolving this matter without resort to further litigation, and believing that resolution of this matter is in the public interest, the parties hereby agree and stipulate to the Court’s entry of this Consent Order and Final Judgment, which provides as follows:

9. The parties agree that under the ADA, an employer may require that a job applicant undergo a medical examination after making an offer of employment conditioned upon the results of the examination, if: (1) all entering employees in that job category are subjected to such an examination; (2) the information obtained regarding the medical condition or history of the applicant is treated confidentially; and (3) the results of the examination are used in accordance with the ADA. 42 USC § 12112(d)(3), 29 CFR § 1630.14(b). A “medical examination” is any procedure or test that seeks information about an individual’s physical or mental impairments or health. Incumbent employees shall not be subject to a medical examination or inquiry unless such examination or inquiry is shown to be job related and consistent with business necessity. 42 USC § 12112(d)(4), 29 CFR § 1630.14(c). A job applicant or incumbent employee may not be disqualified on the basis of a disability unless, after undertaking an individualized assessment of the individual, an employer determines that: (1) the individual cannot perform the essential functions of the job, with or without accommodation, including, with respect to incumbent employees, reassignment; and/or (2) the individual would pose a significant risk to the health or safety of self or others that cannot be reduced or eliminated by reasonable accommodation.

10. The Tennessee Department of Personnel agrees to present to the Governor for inclusion in his legislative package, which will be submitted to the Tennessee Legislature in 2003, and thereafter as necessary, a request to rescind Tennessee Statutes § 41-1-116, § 37-5-117, § 8-8-102, and § 38-8-106. The Tennessee Office of the Attorney General agrees to inform the Tennessee Legislature that Tennessee Statutes § 41-1-116, § 37-5-117, § 8-8-102, and § 38-8-106 are invalid because they conflict with federal law.

11. Defendant State of Tennessee agrees not to enforce or implement Tennessee Statutes § 41-1-116, § 37-5-117, § 8-8-102, and § 38-8-106.

12. The State of Tennessee may enact statutes governing psychological evaluations for job applicants and employees for the positions of correctional officer, youth service officer, police officer, and sheriff that comply with the ADA, 42 USC § 12101 et seq., which includes the requirements outlined in paragraph 9 above.

13. Defendant State of Tennessee agrees to promulgate new written policies to replace all current policies that implement Tennessee Statutes § 41-1-116, § 37-5-117, § 8-8-102, and § 38-8-106. The new policies will comply with the ADA, 42 USC § 12101 et seq., which includes the requirements outlined in paragraph 9 above.

14. Defendant State of Tennessee agrees not to discriminate against job applicants or employees on the basis of disability in connection with a psychological evaluation.

15. Defendant State of Tennessee will remove from its policies the following or similar language concerning the physical qualifications of job applicants and employees: “Defects, disorders or physical handicaps which shall, in the physician’s judgment, be aggravated by service or lead to absenteeism or disability claims as time goes on shall cause rejection. Other causes for rejection may include active communicable diseases, illness, or injuries which pose a likelihood of harm to self or others if employed in this setting.” The State of Tennessee will replace these policies with language that complies with the ADA, 42 USC § 12101 et seq., which includes the requirements outlined in paragraph 9 above.

16. Defendant State of Tennessee agrees to inform all political subdivisions of the State of Tennessee, including counties and municipalities, in writing, that Tennessee Statutes § 41-1-116, § 37-5-117, § 8-8-102, and § 38-8-106 are invalid and should not be applied, implemented, or enforced by the counties or municipalities. Defendant State of Tennessee will provide written notice to the counties and municipalities regarding the requirements of the ADA with regard to psychological evaluations, which include the requirements outlined in paragraph 9 above.

17. Defendant State of Tennessee will provide written notice to the counties and municipalities regarding the requirements of the ADA with regard to physical evaluations, which include the requirements outlined in paragraph 9 above.

18. Training. Defendant State of Tennessee will provide training to the Human Resources personnel in each of its Departments and Agencies and to the managers of the service academies, on an annual basis, or more frequently, on the employment discrimination provisions of the Americans with Disabilities Act and specifically how they apply to psychological evaluations and physical evaluations of job applicants and employees. The State of Tennessee will also offer workshops to the counties and municipalities of the State of Tennessee, through the University of Tennessee Institute for Public Service, on an annual basis, or more frequently, regarding the employment discrimination provisions of the Americans with Disabilities Act and specifically how they apply to psychological evaluations and physical evaluations of job applicants and employees.

19. Reporting Requirements. Defendant State of Tennessee shall provide an annual written report to the United States describing (1) the training that has been conducted under Paragraph 18 above, including when, where, and by whom the training was conducted; and (2) the percentage of job applicants disqualified based on the psychological evaluation, broken down by State Agency or Department.

20. Enforcement. The United States may review compliance with this Order at any time. If the United States believes that Defendant State of Tennessee is not in compliance with this Order or any requirement contained herein, the United States agrees to notify Defendant State of Tennessee in writing of the alleged noncompliance and attempt to seek a resolution of the matter with Defendant State of Tennessee. Defendant State of Tennessee shall have thirty (30) days in which to correct the noncompliance. If the parties are unable to reach a resolution, the United States may seek appropriate relief from this Court. Failure by the United States to seek enforcement of or relief under this Order, or any of its provisions, shall not be construed as a waiver of the United States’ rights under this Order. Any violation of this Order shall be considered a subsequent violation of the ADA.

21. Term of Order. This Consent Order shall be in full force and effect for a period of three (3) years after the date of entry of this Consent Order. The Court shall retain jurisdiction of this action to enforce provisions of this Order during those three (3) years.

22. Entire Consent Order. This Consent Order constitutes the entire agreement between the parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by any of the parties or agents of any of the parties, that is not contained in this written Consent Order, shall be enforceable regarding the matters raised herein.

23. Claims against Counties or Cities. Nothing in this Consent Order precludes the United States from bringing an investigation or an enforcement action against any county or municipality or other political subdivision of the State of Tennessee with regard to discrimination on the basis of disability, including matters involving the policies and practices of psychological and/or physical evaluations.

24. Notice. All notices, reports, or other such documents required by this Consent Order shall be sent to the parties by fax or by hand delivery at the following addresses or to such other person as the parties may designate in writing in the future:

For notices to the United States:

John L. Wodatch, Chief
Attention: Amanda Maisels
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, D.C. 20530
(202) 305-8454
(202) 305-9775 (facsimile)

For notices to the State of Tennessee

William J. Marett, Jr.
Tennessee Office of the Attorney General
Civil Litigation and State Services Division
Cordell Hull Building, Second Floor
P.O. Box 20207
Nashville, TN 37202-0207
615-741-7087
615-741-7327 (facsimile)

25. Public Document. This Consent Order is a public document. A copy of this document, and any information contained herein, may be made available to any person.

26. Severability. If any term of this Consent Order is determined by any court to be unenforceable, the other terms of this Consent Order shall nonetheless remain in full force and effect.

27. Signatories Bind Parties. Signatories on the behalf of the parties represent that they are authorized to bind the parties to this Order. Defendant State of Tennessee represents that this Order has been approved by the Attorney General, the Governor, and the Comptroller of the Treasury of the State of Tennessee.

COUNSEL FOR THE UNITED STATES:














Dated: 3/18/03














Dated: 3/17/03



















Jeanine M. Worden
U.S DEPARTMENT OF JUSTICE
Civil Rights Division
950 Pennsylvania Ave., NW
Housing & Civil Enforcement Section - GS
Washington, DC 20530

M. Lucia Blacksher
U.S. DEPARTMENT OF JUSTICE
Disability Rights Section
950 Pennsylvania Ave., NW
Washington, DC 20530

Amanda Maisels
U.S. DEPARTMENT OF JUSTICE
Disability Rights Section
950 Pennsylvania Ave., NW
Washington, DC 20530

Honorable James Todd
US DISTRICT COURT


JOHN ASHCROFT
Attorney General for the United States

RALPH F. BOYD, JR.
Assistant Attorney General
Civil Rights Division

JOHN L. WODATCH
Chief
ALLISON NICHOL
Deputy Chief


__________________________
AMANDA MAISELS
M. LUCIA BLACKSHER
Trial Attorneys
Disability Rights Section
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
(202)305-8454
(202)305-9775 (facsimile)


PAUL G. SUMMERS, ATTORNEY GENERAL
AND REPORTER

__________________________
William J. Marret, Jr.
Tennessee Office of the Attorney General
Civil Litigation and State Services Division
Cordell Hull Building, Second Floor
P.O Box 20207
Nashville, Tennessee 37202-0207


Pursuant to stipulation, and for good cause shown,
IT IS SO ORDERED

Dated:__________________________

By:__________________________
JAMES D. TODD
UNITED STATES DISTRICT JUDGE






























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September 4, 2003