New OCR Guidance on Pregnancy & Related Conditions

By AYZ Education Law Group

October 27, 2022

On October 4, 2022, the U.S. Department of Education’s Office for Civil Rights (OCR) issued a new guidance document, Discrimination Based on Pregnancy and Related Conditions, reminding students and schools that Title IX protects students and employees individuals from discrimination based on pregnancy and related conditions. Title IX regulations address pregnancy discrimination for students at 34 CFR § 106.40(b) and for employees at § 106.57. The OCR resource identifies and outlines the following three areas for schools, students, and employees based on those regulations:

The guidance document also outlines information for schools regarding complaints of discrimination based on pregnancy or related conditions. It notes that schools must publicly display the contact information for the Title IX Coordinator on their websites and in student and employee handbooks and catalogs. Furthermore, schools must have grievance procedures through which students, employees, or applicants for employment can file a complaint for discrimination based on pregnancy or related conditions. Additionally, the OCR resource emphasizes that anyone, including school employees, may file a complaint with the OCR.

• Discrimination and exclusion: The Title IX regulations prohibit schools from discriminating against or excluding from educational programs, activities, or employment any student or employee based on “pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery therefrom.” 34 C.F.R. § 106.40(b)(1); 34 C.F.R. § 106.57(b)
• Medical and other benefits and services: Schools must treat any student pregnancy, childbirth, false pregnancy, and recovery therefrom “in the same manner and under the same policies as any other temporary disability with respect to any medical or hospital benefit, service, plan or policy.” 34 C.F.R. § 106.40(b)(4). Likewise, schools must treat employee pregnancy and related conditions, including termination of pregnancy, or any other temporary disability resulting therefrom, “as any other temporary disability for all job-related purposes, including employment-based medical, hospital, and other benefits.” 34 C.F.R. § 106.57(c).
• Leave policy: Where a school does not have a student leave policy, or if the student does not qualify for leave under a policy, the school must provide leave for as long as the student’s physician deems medically necessary. When the student returns from leave, the school must reinstate the student to the status they held when the leave began. 34 C.F.R. § 106.40(b)(5). Similar Likewise, a similar requirements leave policy applypplies for to employees. If an employee has insufficient leave or accrued employment time to qualify for leave, the school must treat the pregnancy or pregnancy-related condition as justification for unpaid leave of absence for a reasonable period of time. Interestingly, a reasonable period of time is not defined in the guidance. When the employee returns from leave, the school must reinstate them to their pre-leave status or a comparable position without reduction of compensation, loss of promotional opportunities, or any other employment rights or privileges. 34 C.F.R. § 106.57(d).

This new guidance document follows comes on the heels of a resolution issued by OCR in June, 2022 determining that a community college violated both Title IX and Section 504 of the Rehabilitation Act of 1973 in its treatment of a pregnant student. Specifically, OCR found that the community college violated Title IX by failing to respond promptly and equitably to the student’s complaint of pregnancy discrimination, failing to engage in an interactive process to determine the appropriate special services and/or academic adjustments in light of the student’s pregnancy, and failing to excuse the student’s pregnancy-related absences and provide her with the opportunity to make up missed work. In addition, OCR found that the community college violated Section 504 “by failing to engage in an interactive process with the student and to consider whether her pregnancy caused a temporary disability requiring academic adjustments.” As a result of OCR’s findings, the community college entered into a voluntary resolution agreement to ensure “compliance with Title IX, Section 504, and their implementing regulations as they apply to requests for academic adjustments based on pregnancy, pregnancy-related absences, and complaints of pregnancy discrimination.”

Please note that It is also important to remember that this OCR resource is based on current Title IX law. On June 23, 2022, the 50th Anniversary of Title IX, the U.S. Department of Education released proposed changes to the Title IX Regulations that would significantly change a school’s obligation to students and employees who are pregnant, parenting, or have a pregnancy-related condition. The Appel, Yost & Zee Education Group will continue to monitor and update clients on these proposed regulations and what they mean for schools as they develop.

Should you have any questions about this OCR guidance document or any Title IX or OCR issues, please do not hesitate to reach out to William J. Zee or any of the attorneys in the Appel, Yost & Zee Education Law Group.