Some Practical Tips

• Jurisdiction: Maryland

IV. SOME PRACTICAL TIPS

• Before taking on a client who claims a disability under the disability discrimination laws, plaintiff-side attorneys must make sure the potential client meets the current criteria for a disabled individual under the applicable law and that the person is a "qualified" person with a disability.

• Alternatively, consider whether the employer has "regarded" the potential client as having a disability of the types covered by the law or has discriminated based on some "record" of the individual's disability.

• If an employee is a qualified person with a disability and can perform the job with a reasonable accommodation, make sure the employee's doctor explains carefully the diagnosis, the nature of the condition, including how it substantially impairs major life activities, and the need for the accommodation. If the disability arose on the job because of harassment, it may be good for the doctor to say so. The employee should carefully explain how the requested accommodation will help her do her job well.

• Both parties need to engage in the "interactive process." The employer may legitimately make a reasonable inquiry into the nature of the employee's putative disability to determine not only if the employee is a qualified person with a disability, but also whether the requested accommodation is reasonable. Whoever stops the conversation may well lose, particularly if the party starts staking out an unreasonable position.

• Perhaps the parties could benefit from the assistance of experts in determining what would be a reasonable accommodation that would not impose an undue hardship on the employer.

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