- The parties to this Settlement Agreement are the United States of America and the South Carolina Department of Social Services ("SCDSS"). The Americans with Disabilities Act of 1990, as amended, 42 U.S.C. ï½§ 12101 et seq., is referred to as the "ADA."
- The new requirements for the position of caregiver shall be job-related and consistent with business necessity, by accurately reflecting the actual knowledge, skills and abilities necessary to perform the essential functions of the position.
- The new requirements shall ensure that applicants for employment for the position of caregiver shall not be disqualified from consideration for employment solely because that applicant has been unable, because of a disability, to obtain a high school diploma or GED but instead has obtained a certificate of completion from high school.
- The new requirements shall ensure that a day care provider subject to the authority of SCDSS shall not be denied licensure/registration because the provider hires or employs an individual in the position of caregiver who is qualified to perform the essential functions of that position but who, because of a disability, has not obtained a high school diploma or GED but instead has obtained a certificate of completion from high school.
- An individual employed as a caregiver who does not possess a high school diploma or GED but possesses a certificate of completion from high school shall be entitled to all of the same terms, conditions and requirements of employment as other caregivers employed by that day care provider who possess at least a high school diploma or GED.
The parties agree to the following:BACKGROUND INFORMATION SCDSS promulgated and enforces South Carolina Code Regulation 114-502(B)(4), which provides in relevant part that all individuals employed by licensed day care providers in the position of "caregiver" shall possess at least a high school diploma or General Educational Development Certificate ("GED"). "Caregiver" is defined as "any person whose duties include direct care, supervision and guidance of children in a day care facility." S.C. ST. 20-7-2700(i). The United States has concluded that various provisions of Title I and Title II of the ADA which prohibit discrimination on the basis of disability are applicable to SCDSS's regulation of caregiver educational requirements. 42 U.S.C. ï½§ 12112 and ï½§ 12131. The United States has concluded that the high school diploma/GED requirement contained in S.C. Code Regs. 114-502(B)(4) violates the ADA because it discriminates in employment against persons who, because of a disability, have obtained a "certificate of completion" from high school and have not received a diploma or GED, but who otherwise may be qualified to perform the essential functions of the position of caregiver. The United States and SCDSS have determined that their respective interests can be met by resolving this matter and voluntarily entering into this Settlement Agreement. The Attorney General is authorized by section 107(a) of Title I of the ADA, 42 U.S.C. ï½§ 12117(a), to institute a civil action against a state or local government entity to enforce the provisions of Title I. In consideration of the above, the Attorney General shall not institute any civil action alleging discrimination by SCDSS in violation of the ADA with respect to the educational requirement for the position of caregiver contained in S.C. Code Regs. 114-502(B)(4). Nothing herein shall be construed as an admission by SCDSS that it has violated any provision of the ADA. TERMS REGARDING NEW REQUIREMENTS FOR CAREGIVER POSITION No later than ninety days from the effective date of this Settlement Agreement, in accordance with the State's procedures for agency rulemaking, SCDSS shall propose new regulations with respect to the educational requirement for the position of caregiver currently contained in S.C. Code Regs. 114-502(B)(4), and shall submit the same to the United States for review in accordance with paragraph twelve, below. The new requirements shall, at a minimum, satisfy the following concerns arising from the language currently contained in S.C. Regs. 114-502(B)(4):
On behalf of the South Carolina
Department of Social Services:
By: ______________________ Dated: ______________________
Office of the General Counsel
South Carolina Department
of Social Services
Post Office Box 1520
Columbia, South Carolina 29202
For the United States of America:
Bill Lann Lee,
Acting Assistant Attorney General
By: _______________________ Dated: ______________________
John L. Wodatch
Allison J. Nichol
Steven E. Butler
Disability Rights Section
Civil Rights Division
United States Department of Justice
Post Office Box 66738
Washington, D.C. 20035-6738