Title IX prohibits discrimination based on sex in education programs or activities that receive Federal financial assistance. On Oct. 4, the U.S. Department of Education’s Office for Civil Rights (DOE) released new guidance on discrimination based on pregnancy and related conditions, reminding school communities that Title IX protects students and employees from discrimination based on pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom. Specifically, the DOE guidance informs districts of their obligations under the Title IX regulations to:

  • Not discriminate against or exclude any student from an education program or activity, including any class or extracurricular activity, based on a student’s pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery therefrom.
  • Not discriminate or exclude from employment any employee or employment applicant based on the employee’s or applicant’s pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery therefrom.
  • Treat pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery therefrom the same as any other temporary disability with respect to any hospital or medical benefit, service, plan or policy for students or employees.
  • Absent a leave policy, provide leave to students for pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery therefrom, for as long as the student’s physician deems medically necessary. For employees, if a school does not have a leave policy, or if an employee has insufficient leave or accrued employment time to qualify for leave under the school’s policy, the school must treat pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery therefrom as justification for a leave of absence without pay for a reasonable period of time.
  • Ensure its instructors’ policies and practices do not discriminate against students because of pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery therefrom. For example, a teacher may not refuse to allow a student to submit work after missing a deadline because of absences due to pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery therefrom.

In July, DOE published a notice of proposed rulemaking that includes proposed amendments to some of the Title IX regulations discussed in DOE’s resource. Among other things, these proposed amendments redefine “pregnancy” and “pregnancy-related conditions” under Title IX, recognize lactation as a pregnancy-related condition, require schools to provide information to pregnant students on their rights, require the Title IX coordinator to ensure reasonable modifications are provided to pregnant students who need them, and limit requirements on students to provide medical clearance to continue to their studies. These rules are still in the rulemaking process and are not effective. Any final changes to the Title IX regulations will be published in a subsequent final rule in the Federal Register.

OSBA will continue to monitor these proposed amendments and will provide additional updates as they are available. In the meantime, if you have any questions about the new guidance document or the current or proposed Title IX rules, please contact the OSBA Division of Legal Services.

Posted by Sara C. Clark on 10/14/2022