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Pregnancy Discrimination What ASCs need to know BY ROBERT KURTZ


F


ederal laws on pregnancy discrimi- nation are in a “state of flux,” says


attorney Dena H. Sokolow, a labor and employment shareholder with Baker Donelson. As long as the laws remain that way, she adds, pregnancy discrimination is an area ASCs need to watch closely. “Any time there is a controversial area, more people pay attention to it, and you see courts paying more attention to it as well,” Sokolow says. “I think you are going to see more discrimination charges and lawsuits in this area. I do not see this issue going away any time soon.” There are several reasons why


these laws are in flux, Sokolow says. One is the US Equal Employment Opportunity Commission’s (EEOC) July 2014 release of enforcement guidance on pregnancy discrimination for the first time since 1983. From the beginning, says Sokolow, the EEOC guidance was very controversial. “It does not coincide with applicable case law,” she explains, “and there was a split in opinion among the EEOC commissioners along party lines [on whether to approve the guidance].” In addition, the US Supreme Court


agreed this recent term to take up the issue of pregnancy discrimination and will do so when it reviews the case of Peggy Young v. United Parcel Service (UPS). At question is whether UPS’s refusal to provide the plaintiff with a temporary light-duty assignment vio- lated


the Pregnancy Discrimination


Act—an amendment to the Civil Rights Act of 1964 that says women affected by pregnancy or related conditions must be treated in the same manner as other applicants or employees who are similar in their ability or inability to work. Pregnancy discrimination may


involve other federal laws as well, including the Americans with Disabili-


26 ASC FOCUS JANUARY 2015


When you are dealing with a pregnant employee, you really have to tread carefully.”


—Andrew Weiss, CASC, The Endo Center at Voorhees


ties Act and the Family and Medical Leave Act (see page 34 of the October 2014 issue of ASC Focus). In addition, most states have their own employment laws that speak to pregnancy discrimina- tion, Sokolow says. “There could even be local laws on it as well. While state and local laws cannot be less restrictive than federal laws, they can give more rights.” With so much attention on pregnancy discriminations laws, there are a number of steps ASCs can take to ensure compli- ance to the best of their ability. “If you have not looked at your poli- cies and procedures on this in a few years, it is a good idea to check up on them as the laws do change,” says Andrew Weiss, CASC, administrator of The Endo Cen- ter at Voorhees in Voorhees, New Jersey. “What was relevant 10 years ago in your ASC could now be totally out of date.” ASCs should also ensure that they


uniformly apply those policies, Sokolow says. “Consistency in your application of


policies is human resources (HR) 101. If you do stray from your policies in any way, you want to have a justifiable, artic- ulable reason why.” Weiss adds, “Just like with any HR issue, consistency and documentation are critical.” Sokolow says it would be wise for ASCs to identify a centralized person, such as the administrator or HR manager, who understands the laws on pregnancy discrimination and serves as the go-to person at the ASC when there is a ques- tion about the application of these laws. “It is the employer’s burden to know the law and make sure it is applied properly to their workplace,” she says. “When you are dealing with a preg- nant employee, you really have to tread carefully,” Weiss notes. “There are HR consultants and labor attorneys out there who can help and will review your docu- ments to make sure you are in compli- ance. They are worth the investment.”


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