By Steve Lash
Daily Record Legal Affairs Writer
Baltimore County will pay a total of $475,000 to 10 current, former and prospective employees to settle federal claims it has engaged in a “pattern or practice” of discriminating against police officers, fire fighters and paramedics with disabilities by requiring medical tests that were not job-related.
The county also agreed to change its testing policy as part of the consent decree filed Tuesday in U.S. District Court in Baltimore. With attorneys’ fees and back pay, the settlement will exceed a half-million dollars.
The decree ends a lawsuit filed one day earlier by the U.S. Justice Department, which alleged the county violated the federal Americans with Disabilities Act.
The Justice Department said it launched its investigation in 2007, after Detective William Blake sued the county for ordering him to have a brain scan and a fitness check following his testimony, in a co-worker’s employment matter, that he had suffered a seizure 10 years earlier. The jury in Blake’s lawsuit awarded him $225,000 for emotional distress in April 2010.
Blake’s lawyer in that case, Kathleen Cahill, is also the private attorney for the 10 plaintiffs named in Tuesday’s settlement in U.S. District Court in Baltimore.
“It doesn’t pay to discriminate,” said Cahill, who has her own firm in Towson. “These hardworking folks … have the right to work provided they can do their jobs.”
Under the settlement, the county agreed to stop requiring physical fitness and medical tests of its employees except when “job-related and consistent with business necessity.” The county may require pre-employment medical examinations if they are consistent for all applicants in the same job category without regard to their actual or perceived disabilities.
The county also agreed to screen — and not automatically exclude — job applicants with diabetes.
The Justice Department retained authority to review “at any time” the county’s compliance with the decree, which will remain in effect for three years.
No admission of wrongdoing
The county admitted no wrongdoing in agreeing to the decree.
Baltimore County Attorney Michael E. Field defended the county’s testing practices as valid under the ADA and necessary to ensure public safety.
“These medical exams protect employees and citizens alike and Baltimore County cannot in good conscience operate in any other manner,” Field said in a statement posted on the county’s blog, Baltimore County Now.
Field expressed confidence the county would have prevailed at trial but said the costs of fighting the Justice Department were just too high.
“[G]iven the unlimited resources of the federal government the county would have needed to hire private lawyers to assist the Office of Law,” which “would no doubt have cost the taxpayers several hundred thousand dollars,” he wrote. “The desire to protect taxpayer dollars was a key factor in the county’s willingness to reach an agreement” to settle the case.
The plaintiffs in the suit included a firefighter who survived breast cancer but allegedly was harassed at work because of her health condition; a would-be firefighter allegedly rejected because he has diabetes; a police officer who suffered a seizure; and a police department personnel manager allegedly forced out because she told administrators that the county’s employment practices might violate the ADA.
Most of the workers alleged they were subjected to non-job-related medical examinations and inquiries due to their actual or perceived disabilities, according to the decree.
“The result of the county’s discriminatory policies and practices was to force employees, including veteran police officers and firefighters, to submit to invasive and unjustified medical examinations and inquiries,” Assistant U.S. Attorney General Thomas E. Perez, who heads the department’s civil rights division, said in a statement. “The ADA does not tolerate this type of conduct and neither does the Justice Department.”
More claims ahead
The decree provides for a $30,000 award of attorney’s fees and $13,000 in back pay, in addition to the $475,000 in damages.
The decree, by its terms, does not foreclose additional lawsuits against the county, and Cahill, the plaintiffs’ attorney, said she has three in the works.
The prospective plaintiffs are two former firefighters and an ex-police lieutenant she alleges were forced out of their county jobs in violation of the ADA. The lawsuit will be filed within 90 days of her receipt of a right to sue letter from the U.S. government, she said.
The economic losses sustained by the three workers were “substantial,” said Cahill, a Towson solo practitioner. “We will be looking for significant relief from juries.”
Field, in his statement on the blog, anticipated the possibility of the additional litigation.
“The three remaining complainants made settlement demands that the county believed were unreasonable based upon the facts of those cases,” he said. “Should any of those complainants choose to file suit, the county law office will vigorously defend those cases on the merits, and it is not anticipated that outside attorneys will be hired to assist in those cases.”