ENVIRONMENTAL & SOCIAL JUSTICE
How the ADA Paved the Way... ...continued from page 31
in 2012 both in the spirit of the ADA and as a response to its lim - itations. Under the Pregnant Workers Fairness Act, which went into effect in June, pregnant workers have access to reasonable accommo - dation in the same way that people with disabilities do under the ADA. Before that law, Martin said the challenge she came up against when litigating cases regarding pregnant workers was that not all fell into the definition of a disability as outlined in the ADA: “ a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” Some conditions related to pregnan- cy were disabilities, like gestational diabetes or sciatica. But others were not, though pregnant people needed accommodations, like wa- ter bottles or lighter loads, that were specific to pregnancy but had no legal mechanism for requesting them. “It was dancing on the head of a pin: ‘This isn’t just pregnancy, this is the disability related to pregnancy,’” Martin said. Elizabeth Gedmark, the vice president of A Better Balance, the ad - vocacy organization that helped draft and led the decade-long move - ment to pass the Pregnant Workers Fairness Act, said the ADA was a useful model to counter arguments around whether providing accom- modations to pregnant workers was special treatment or not. But a separate law was needed to cover conditions outside disabil - ity and to correct further legal complications created by a 2015 Su - preme Court case. Based on the ruling in the case of a pregnant UPS driver, to get an accommodation outside of the ACA, a worker had to prove that someone similarly situated to them got an accommodation. Because pregnancy is so unique, that was a difficult barrier for many. Instead, under the Pregnant Workers Fairness Act, pregnant work - ers no longer have to prove someone else already received an accom- modation. “Under the ADA, there is not that same need to find a comparator, instead it’s just ‘I need this accommodation, end of story — or start of story,’” Gedmark said. That interactive process — or the conversation employers are re- quired to enter to help accommodate a worker as defined by the ADA — is crucial for marginalized workers whose needs have long been in - visible in the workplace, said Ming-Qi Chu, the deputy director for the American Civil Liberties Union’s women’s rights project. “It encourages learning about an employee’s condition, and this is particularly valuable for medical conditions that women tend to ex- perience where there is a huge gap in understanding about how the conditions affect work,” Chu said. “The interactive process at its best, when it’s working as it should, allows employees to explain what they
tions simply to create equal opportunity — not to give somebody an advantage.” The ADA also helped open a space to discuss how to accommodate disabilities at work, creating an avenue to bring civil rights into the workplace, a shift that was particularly important for marginalized groups, including women and LGBTQ+ people, said Emily Martin, the vice president of education and workplace justice at the National Women’s Law Center. “The ADA took us a long way in reconceiving workplace civil rights to allow for the idea that part of what workplace justice requires in some circumstances is changing the rules so that everybody can fully participate,” Martin said. “It’s not just a matter of making sure that the rules are applied equally to everybody, but really interrogating whether particular structures and requirements are necessary at all, and how we change them so that people can thrive at work.” That ADA did that through two new standards. One was the intro - duction of the concept of “reasonable accommodations,” and the other was the creation of the “interactive process,” through which employers had to engage with employees one on one to learn more about their needs and attempt to accommodate them. “I can’t think of a legal system in place in the workplace before the ADA that specifically required that sort of very individualized analy - sis,” Martin said. It helped propel a cultural shift that is still happen - ing today away from “conceiving of employees as these sort of disem- bodied automatons.” That really came into play with pregnant workers prior to the pas- sage of the Pregnant Workers Fairness Act, which was first introduced
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