Quick Hits

  • Rights of pregnant students, or students experiencing pregnancy related conditions, are expanded.
  • Preemployment inquiries into marital status are prohibited.
  • An institution will not be found to be in violation of Title IX solely because the Assistant Secretary of the U.S. Department of Education disagrees with the institution’s findings.

§ 106.40 Parental, Family, or Marital Status; Pregnancy or Related Conditions

Discrimination on the Basis of Pregnancy or Familial Status Is Prohibited

Section 106.40 prohibits policies, practices, or procedures that concern a student’s current, potential, or past parental, family, or marital status that treats the student differently on the basis of sex. As it relates to pregnancy or related conditions specifically (which includes pregnancy, childbirth, termination of pregnancy, or lactation, or any medical conditions or recovery related to pregnancy, childbirth, termination of pregnancy, or lactation), an institution may not discriminate against any student based on their current, potential, or past pregnancy or related condition.

Action Required Upon Notice of a Student’s Rregnancy or Related Condition

An employee who is informed of a student’s pregnancy or related condition is required to provide the Title IX coordinator’s contact information and general information about the Title IX coordinator’s ability to take specific actions to prevent discrimination and ensure equal access. Once the Title IX coordinator is informed of the student’s pregnancy or related conditions, the Title IX coordinator must take specific actions, including informing the student of the institution’s legal obligations and the notice of nondiscrimination.

Examples of Reasonable Modifications

The Title IX coordinator must also make reasonable modifications to the institution’s policies, practices, or procedures as necessary to prevent discrimination and ensure equal access, based on the student’s individualized needs and in consultation with the student. It is the student’s choice whether to accept or decline the reasonable modification, but if the student accepts, it must be implemented. Examples of reasonable modifications include, but are not limited to: breaks during class (including to eat, drink, use the restroom, or for lactation purposes), intermittent absences for medical appointments, changes in scheduling of course sequence, extensions of time or rescheduling tests, allowing students to sit or stand, allowing the student access to water, counseling, access to online or homebound education, changes to physical space or supplies, and access to an elevator.

Voluntary Leaves of Absence

The Title IX coordinator must also allow the student to take a voluntary leave of absence for the time that is deemed medically necessary by the student’s licensed healthcare provider. When the student returns from leave, they must be reinstated to the same academic status, and as practicable, to the same extracurricular status that they held when the voluntary leave began.

Student Lactation Space

If a lactation space is needed, the Title IX coordinator must ensure the space is not a bathroom, is clean, shielded from view, free from intrusion from others, and can be used by the student as needed to express breast milk or breastfeed.

Supporting Documentation

The Title IX coordinator may not require supporting documentation unless the documentation is necessary and reasonable to determine the reasonable modifications or take other specific actions as required. The regulations provide specific examples where documentation is deemed unnecessary (e.g., if the need for an action is obvious, such as providing a larger uniform to a student athlete; when the reasonable modification request is to allow the student to keep water nearby and drink, use a bigger desk, sit or stand, or to take breaks to eat, drink, or use the restroom; or when the action is available to students for nonpregnancy or related conditions without supporting documentation).

Pregnancy or Related Conditions Must Be Treated the Same as Any Other Temporary Medical Condition

Institutions are required to treat pregnancy or related conditions in the same manner as any other temporary medical condition.

Certification to Participate

An institution must not require a student who is pregnant or has related conditions to provide certification from a healthcare provider or any other person that the student is physically able to participate in a class, program, or activity. An exception applies if a certified level of physical ability or health is required to participate in the class, program, or activity; certification is required of all students; and the information is not used as a basis for discrimination.

§ 106.41 Athletics

Section 106.41 (Athletics) was amended on a limited basis to remove paragraph (d) from the current regulation, which allowed for an adjustment period for compliance with the rest of the section. This rule removes paragraph (d) because the adjustment period has passed, so the provision is no longer operative. No other changes to the provision governing athletics were included in the final rule.

§ 106.47 Assistant Secretary Review of Sex-Based Harassment Complaints

The Assistant Secretary of Education will not find an institution in violation of Title IX solely because the Assistant Secretary disagrees with the findings.

§ 106.51 Employment

Section 106.51(b)(6) is amended to include “[g]ranting and return from leaves of absence, leave for pregnancy or related conditions, leave for persons of either sex to care for children or dependents, or any other leave.”

§ 106.57 Parental, Family, or Marital Status; Pregnancy or Related Conditions

An institution cannot treat students, employees, or applicants differently based on their parental, family, or marital status, including whether someone is the head of the household or principal wage earner. Institutions also may not discriminate against any employee or applicant on the basis of pregnancy or related conditions and must treat pregnancy or related conditions similar to any other temporary medical conditions for all job-related purposes, including with respect to the need for a leave of absence. Institutions must provide reasonable break time for employees to express breast milk or breastfeeding and must ensure that an employee can access a lactation space (not a bathroom).

§ 106.60 Preemployment Inquiries

Institutions are prohibited from making pre-employment inquiries into marital status, including whether an applicant is “Miss” or “Mrs.” Institutions may ask applicants to self-identify their sex, but only if asked of all applicants, and the response is not used for sex discrimination.

§ 106.71 Retaliation

Section 106.71 clarifies that institutions must prohibit retaliation, including peer retaliation. Retaliatory conduct must be addressed using using the same procedures used for other forms of sex discrimination under Title IX.

§ 106.81 Procedures

In the preamble, the department pointed out that recipients must comply with Title VI of the Civil Rights Act of 1964, which provides, in pertinent part, that “no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” Section 106.81 incorporates procedures applicable to Title VI, published at 34 C.F.R. §100.6–100.11 and 34 C.F.R. Part 101.

Next Steps

The final regulations are effective on August 1, 2024, and apply to complaints of sex discrimination regarding alleged conduct that occurs on or after that date. These regulations are currently only available in an unofficial version. In addition, the department has released a fact sheet, a summary of the major provisions of the final regulations, and a resource for drafting Title IX nondiscrimination policies, notices of nondiscrimination, and grievance procedures.

Part one of this series addressed grievance procedures for resolving complaints of sex discrimination, and sex-based harassment at postsecondary institutions. Part two of the series examined terms and definitions, including types of harassment, “complainant,” and “complaint.” Part three addressed § 106.44, pertaining to specific requirements recipients must take in response to sex discrimination.

Ogletree Deakins’ Higher Education Practice Group will continue to monitor developments and provide updates on the Higher Education blogs as additional information becomes available.

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