Excerpted from Maryland Employment Law Letter, written by attorneys at the law firm Whiteford, Taylor & Preston L.L.P.

A recent opinion from the Ninth U.S. Circuit Court of Appeals (the federal court that covers AZ, CA, NV, ID, OR, WA, MT) sheds light on when your duty to engage in the interactive process with an employee is triggered to determine a reasonable accommodation.

Mother doesn't always know best

When Mladen Zivkovic applied to be a meter reader at Edison Company, he passed the written test without any problems. When it came time to schedule an interview, he didn't tell anyone at the company that he was hearing- impaired or that he needed an interpreter. But Edison's recruiter, Todd Fagan, realized from speaking with him and reading his application that he had a hearing problem. Nevertheless, Fagan believed that Zivkovic understood everything he said.

Zivkovic soon met with two Edison representatives, Rudy Rea and John Ortega, for his interview. Before the meeting, neither of them was aware of his hearing problem. At the interview, he had difficulty understanding the questions, and Rea could tell he was hard of hearing. At the end of the interview, Zivkovic stated that he could have done better if an interpreter had been provided. Both interviewers noted on their scoring sheets that he may have done better in the interview if a sign-language interpreter had been present.

After reviewing the interview notes, Fagan called Zivkovic's mother, offered to arrange a second interview, and asked if he needed a sign-language interpreter. Fagan later testified that she told him that an interpreter wasn't necessary.

Mommy dearest

At trial, Zivkovic's mother stated that she told Fagan he should ask her son. Though the exact response was disputed, it was clear that Fagan didn't ask to speak to Zivkovic during that phone call but rather relayed to his mother that a second interview would be set for the following month.

Zivkovic returned for the second interview, but no interpreter was provided. Fagan testified that he asked Zivkovic at that time whether he needed an interpreter. He denied being asked that question. He admitted that he never asked specifically for an interpreter but said that he expected one to be present based on his prior statements that he was hard of hearing, knew sign language, and could have performed better in the first interview if an interpreter had been present.

Eventually, the interviewers at Edison gave Zivkovic an overall score of C. A score of A or B was necessary for further consideration. In his letter to Zivkovic, Fagan stated that although his qualifications were strong, he wasn't selected for the position for which he interviewed.

Learning the ADA's ABCs

As you surely know, the Americans with Disabilities Act (ADA) prohibits discrimination against a "qualified individual with a disability" in regard to job application and hiring procedures as well as other terms and conditions of employment.

One type of discrimination that you may not run into often is the requirement that you make reasonable accommodations to the known physical or mental limitations of an individual who's an applicant during the hiring process. So according to this case and others, your duty to engage in an interactive process with the employee to determine the appropriate reasonable accommodation is triggered (obviously) once he requests an accommodation or (not so obviously) when you recognize, or should recognize, that he needs an accommodation.

There's no magic language that an employee must use when requesting an accommodation. He only has to say something that indicates a need for an adjustment because of a medical condition. The interactive process requires you to (1) directly communicate and explore in good faith any possible accommodations, (2) consider the employee's request, and (3) offer an accommodation that's reasonable and effective.

You'll be on the hook for liability only when you bear responsibility for the breakdown in the interactive process.

Lost in translation

Though there was some dispute over the exact facts of the case, the court found that Edison didn't appropriately engage in the interactive process when Fagan asked Zivkovic's mother whether her son needed an interpreter because that wasn't a direct communication with Zivkovic.

The court also found that even under Edison's version of the facts, Fagan's oral question to Zivkovic about whether he needed an interpreter may not have satisfied the requirement to engage in an interactive process. If Zivkovic misunderstood the question being asked, Edison may have been required to ask it in writing or through a sign-language interpreter.

Mother of invention

This case makes clear that you have to do more than sit back and wait for an applicant to spell out his medical condition and ask for a specific accommodation during the interview process.

Once you're on some notice of the applicant's possible disability, you must make a good-faith effort to engage in the interactive process to find an accommodation that's reasonable under the circumstances.

This case highlights how important it is to educate anyone involved in your hiring process about employment law, particularly the intricacies of the ADA. If they stumble, you could be liable for damages under the statute for conducting interviews in a discriminatory manner.

Copyright © 2006 M. Lee Smith Publishers LLC. This article is an excerpt from MARYLAND EMPLOYMENT LAW LETTER. Maryland Employment Law Letter is not intended to provide legal advice or opinions, but rather to provide information about current developments in Maryland employment law. Questions about individual problems should be addressed to legal counsel.