SETTLEMENT AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND THE STATE OF CALIFORNIA, EMPLOYMENT DEVELOPMENT DEPARTMENT 1. The parties to this Agreement are the United States of America and the State of California Employment Development Department. The United States of America is referred to hereinafter as the "United States." The United States Department of Justice is referred to hereinafter as the "Department." 2. The State of California Employment Development Department is referred to hereinafter as the "EDD." The Charging Party is referred to hereinafter as "Charging Party." The Equal Employment Opportunity Commission is referred to hereinafter as the "EEOC." Title I of the Americans with Disabilities Act of 1990 (ADA), as amended, 42 U.S.C. SS 12111 et seq., is referred to hereinafter as the "ADA." The parties hereby agree as follows: FACTUAL AND JURISDICTIONAL BACKGROUND 3. Charging Party filed a charge of discrimination with the EEOC on June 24, 1993, alleging that he was discriminated against on the basis of disability in violation of title I of the ADA by the EDD in regard to his application for a job as a Disabled Veterans Outreach Program Employment Program Representative ("DVOP-EPR"). As part of the application process, Charging Party was given a pre-employment health questionnaire containing a checklist on which he was required to indicate whether he had been treated for certain medical conditions. The EDD also requested information from Charging Party's personal physician, who advised that Charging Party had some physical impairments and was being treated for depression but was, nonetheless, able to perform the position of the DVOP-EPR. On June 4, 1993, the EDD advised Charging Party that he would not be hired because of his physical limitations. 4. On December 15, 1994, the EEOC issued its determination that there was reasonable cause to believe that the EDD violated title I of the ADA. The EEOC found that Charging Party is a qualified individual who can perform the essential functions of the DVOP-EPR position, and that he was not hired because he was regarded as having a disability, major depression and mood disturbance. After conciliation efforts between the EDD and the EEOC failed, the EEOC referred Charging Party's charge to the Department with a recommendation that the Department file suit. 5. The ADA applies to the EDD because it is a person within the meaning of 42 U.S.C. S 12111(7) and an employer within the meaning of 42 U.S.C. S 12111(5)(a). 6. The United States alleges that the EDD violated title I of the ADA by, among other ways: a) Requiring, prior to an offer of employment, that Charging Party complete a health questionnaire that inquired about the existence of a disability. See 42 U.S.C. SS 12112(d)(2)(A) and 29 C.F.R. SS 1630.13. The regulations to title I of the ADA provide that, at the preemployment stage "[i]t is unlawful for a covered entity . . . to make inquiries as to whether an applicant is an individual with a disability or as to the nature or severity of such disability." b) Failing to hire Charging Party, a qualified individual with a disability, based upon disability. See 42 U.S.C. SS 12112(a) and 29 C.F.R. S 1630.4(b). The regulations to title I state that "[i]t is unlawful for a covered entity to discriminate on the basis of disability against a qualified individual with a disability in regard to . . . [h]iring." GENERAL AGREEMENT 7. The parties have determined that their respective interests can be met without engaging in protracted litigation to resolve this dispute and have therefore voluntarily entered into this Agreement. 8. The EDD denies that any action it has taken constitutes a violation of the ADA. This Agreement shall not be construed as an admission of liability by the EDD. The EDD also agrees that it will abide by all of the requirements of the ADA. 9. The EDD also specifically agrees that: a) It will not discriminate in violation of the ADA on the basis of disability, including mental impairments such as depression, or physical impairments, against a qualified individual with a disability. b) It will make no medical inquiries prior to extending a bona fide conditional offer of employment. 2 SPECIFIC RELIEF TO BE OFFERED BY THE EDD 10. On or before September 6, 1996, the EDD will offer to pay $60,000.00 to Charging Party as compensatory damages for any losses sustained as a result of the EDD's alleged actions; 11. On or before September 6, 1996, the EDD will offer to Charging Party, in writing, appointment to the position of Employment Program Representative with the State of California. The appointment will be to a position in an office located within fifty-five (55) miles of the city limits of Grass Valley, California. If Charging Party accepts the appointment, he shall be subject to the one year probationary period required for the classification. Charging Party need not accept the job offer to accept the offer of $60,000.00 referred to in paragraph 10. 12. The EDD will send a copy of this Agreement and Exhibits 1, 2 and 3, attached hereto, to Charging Party. Exhibit 1 provides that in order to accept any of the relief offered, Charging Party must return an executed RELEASE OF ALL CLAIMS, (Exhibit 2), and ACCEPTANCE OF OFFER, (Exhibit 3), to the EDD in care of its counsel within (30) days of Charging Party's receipt of said documents. 13. The EDD will send the undersigned counsel for the United States a copy of Exhibits 1, 2, and 3 when they are sent to Charging Party. If Charging Party accepts the EDD's offer to pay $60,000.00, the EDD will pay Charging Party within thirty (30) days of receipt of his signed RELEASE OF ALL CLAIMS, and ACCEPTANCE OF OFFER. If Charging Party accepts the EDD's offer of appointment to the position of Employment Program Representative, the EDD will appoint Charging Party within (30) days of receipt of his signed RELEASE OF ALL CLAIMS, and ACCEPTANCE OF OFFER. NOTIFICATION 14. The EDD will notify the undersigned counsel for the Department when it has completed the actions described in paragraphs 10-13. 15. Within thirty (30) days of receiving from the EDD a copy of the offer letter to be sent to Charging Party by the EDD according to this Agreement, the United States will issue to Charging Party a notice of right to sue on EEOC charge No. 345- 93-0660, pursuant to 42 U.S.C. S 12117(a) and 42 U.S.C. S 2000e- 5(f) (1). 3 IMPLEMENTATION 16. The Attorney General is authorized, pursuant to Section 107(a) of Title I, 42 U.S.C. S 12117(a), to institute a civil action against a state government employer when the EEOC has determined that there is reasonable cause to believe that a charge of employment discrimination is true, and the EEOC has been unable to secure an acceptable conciliation agreement. These preconditions exist with respect to EEOC charge No. 345-93- 0660. In consideration for the offer of relief to Charging Party, as set forth above, the Attorney General will not institute any civil action alleging employment discrimination on the basis of EEOC charge No. 345-93-0660 filed by Charging Party. OTHER PROVISIONS 17. The Department of Justice may institute a civil action in the appropriate U.S. District Court to enforce this Agreement, if the Department believes that this Agreement or any requirement thereof has been violated. The Department may review compliance with this Agreement at any time. If the Department believes that this Agreement or any portion of it has been violated, it will raise its concern(s) with the EDD and the parties will attempt to resolve the concern(s) in good faith. The Department will give the EDD twenty-one (21) days from the date it notifies the EDD of any breach of this Agreement to cure that breach, prior to insti- tuting an enforcement action. 18. Failure by the Department to enforce this entire Agree- ment or any provision thereof with regard to any provision herein shall not be construed as a waiver of its right to do so with regard to other provisions of this Agreement. 19. A signatory to this document in a representative capacity for either party represents that he or she is authorized to bind that party to this Agreement. 20. This Agreement is a public document and constitutes the entire agreement between the parties on the matters raised here- in. Copies of this Agreement shall be made available to any person by either party upon request to that party. 4 EFFECTIVE DATE/TERMINATION DATE 21. The effective date of this Agreement is the date of the last signature below. For the State of California For the United States of Employment Development America: Department: Deval L. Patrick Assistant Attorney General Al Lee Chief Deputy Director 800 Capitol Mall By: Sacramento, California John L. Wodatch (916) 654-8210 L. Irene Bowen Alyse S. Bass Dated: Disability Rights Section Civil Rights Division U.S. Department of Justice P.O. Box 66738 Washington, D.C. 20035-6738 Eric J. Hendrickson (202) 616-9511 Attorney Legal Office, MIC 53 Dated: 800 Capital Mall Sacramento, California 95814 (916) 654-8410 Dated: 5