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Pregnancy-Related Discrimination – Guidance on Title IX Applications

While Title IX regulations have made it illegal to discriminate on the basis of pregnancy and related conditions since 1975, educational institutions still need reminders about their responsibilities under the law. That is the basic premise behind a fact source issued by the Department of Education’s Office for Civil Rights on pregnancy-related discrimination.  

This guidance came out in October of 2022, four months after the Department announced the resolution of a pregnancy discrimination investigation at Salt Lake Community College. The college was held in violation of Title IX and Section 504 of the Rehabilitation Act of 1973 for failing to involve a pregnant student in the interactive process and for refusing to excuse absences related to pregnancy.  

The fact resource reminds students and their families, faculty, and educators that Title IX protections prohibit discrimination based on pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery from pregnancy conditions. Issues addressed in the guidance include exclusion, provision of benefits, leave policies, and the process of filing a complaint. The Department notes, however, that some of the regulations referenced in the fact source are covered by proposed changes, so when the new regulations are finalized, the guidelines could be adjusted.

Prohibition Against Discrimination and Exclusion

The Department starts off its guidance by reiterating that schools are not allowed to discriminate against or exclude any student from an education program or activity based on a student’s pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom. These prohibitions apply not only to education programs but also extracurricular activities and employment. Schools are similarly prohibited from discriminating against employees based on pregnancy-related conditions.

Medical Services and Other Benefits

A key part of the guidance reminds schools that they are required to treat pregnancy, childbirth, false pregnancy, termination of pregnancy, and recovery from pregnancy conditions just as they would any temporary physical disability. This means that students should be given the same hospital and medical benefits, plans, policies, and services. 

Moreover, schools must treat employees who are or were pregnant the same as they do for other temporary disabilities. This includes pregnancy-related conditions, including termination of pregnancy, as well as any temporary disability resulting from the termination. All job-related purposes, including employment-based medical, hospital, and other benefits must be provided just as they would to employees dealing with other temporary disabilities.

Guidance on Leave Policies

The guidance provided with regard to leave policies could be very helpful to schools because the rules are in many cases not obvious. In the fact source, the Department specifies that when an educational institution does not have a leave policy in place for students, or if the student does not qualify for leave under the existing policy,  then the institution is required to provide leave to students for pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery from a pregnancy-related condition, for a term sufficient to cover the student medical necessity as determined by that student’s doctor.

When a student returns from pregnancy-related leave, the school must reinstate that student to the same status the student held when the leave began.

If an educational institution does not have a leave policy for employees, or if an employee lacks sufficient leave or accrued employment time to be eligible for leave under the institution’s policy, then pregnancy, childbirth, false pregnancy, termination of pregnancy, and recovery therefrom must be treated as justification for a reasonable period of leave of absence without pay. After leave, the school must reinstate the employee to the status enjoyed before the leave period or to a comparable position. The institution cannot reduce the employee’s compensation or reduce promotional opportunities or any other rights or privileges of employment.

The pregnancy discrimination guidelines also address the following:

  • Commencement
  • Leave duration
  • Extension of leave
  • Disability pay
  • Acquiring seniority

For all of these issues, schools are required to treat pregnancy, related conditions, and any temporary disability resulting from them the same as they would for any other temporary disability. In addition, other employment-based benefits, services, and reinstatement must be provided for employees dealing with pregnancy-related conditions, just as for other temporary disabilities.

Additional Reminders and Resources

The Department reminds students, families, and educational institutions many other resources for instruction and guidance are available through the Office for Civil Rights. Examples of issues addressed include protection against pregnancy-based harassment by students or school employees and how to develop policies and practices that prevent discrimination based on pregnancy-related conditions.

As an example, the Department notes that if a student misses a deadline because of absences due to pregnancy or childbirth, the student’s teacher cannot refuse to allow the student to submit the work late. Moreover, if a teacher grades based in part on class attendance or participation, a student should be allowed the opportunity to make up the missed credits and be returned to the student’s status before leaving.

The Department concludes the fact resource with a discussion about how a student, employee, or applicant can file a complaint if they believe they have been discriminated against due to a pregnancy-related condition. Options include a complaint filed through the school’s grievance procedures or a complaint filed with the Department’s Office for Civil Rights. With the second option, complaints can be filed not only by an individual harmed by pregnancy discrimination but also by anyone who observed discrimination.

Help with Pregnancy-Based Discrimination or Any Discrimination Prohibited by Title IX

If you are not certain whether you have grounds to file a Title IX complaint for discrimination, harassment, or other actions prohibited by Title IX, an experienced Title IX attorney can review your case and explain your options for relief. An attorney can assist with filing a formal complaint or lawsuit or pursuing relief through negotiation.

The team at Nesenoff & Miltenberg, LLP  is dedicated to justice under Title IX, and we focus our entire practice on the protections offered by this legislation and supporting regulations. We have a unique understanding of discrimination issues in relation to Title IX investigations and remedies. To discuss your situation with our attorneys, schedule a confidential consultation today.