Readers may recall that the May 2020 Title IX Final Rule does not include information about pregnancy or related conditions. The 2020 regulations covered a narrow set of conduct, specifically, sexual harassment and sexual and interpersonal violence.
Title IX has long included protections for pregnant people. Below, let’s walk through what the existing regulations say about pregnancy and related conditions, and then look to the 2022 proposed regulations for what’s new, specifically: a new definition of “pregnancy and related conditions,” and regulations governing reasonable modifications, notice of rights, and lactation considerations.
Pregnancy and Parenting Rules Under the Existing Regulations
The current Title IX regulations prohibit treating students, employees, and applicants for those roles differently based on pregnancy, including excluding them from programs or activities. The current rules describe pregnancy as including “childbirth, false pregnancy, termination of pregnancy, or recovery therefrom.”
The existing rules also require schools to treat disabilities related to pregnancy in the same manner and under the same policies as any other temporary disability or physical condition.
In addressing leave for students, the regulations say that if a school does not have a student leave policy, or if a student does not qualify for leave under that policy, the school must treat pregnancy as a justification for a leave of absence for so long a period of time as deemed medically necessary by the student’s doctor.
For employees, if the school does not have a leave policy, or the employee doesn’t qualify for the leave, the regulations require schools to treat the employee’s pregnancy as a justification for a leave of absence without pay for a reasonable period of time. At the conclusion of such a leave, the employee must be reinstated to their previous status or a comparable position. And schools must treat an employee’s pregnancy (and related conditions) similarly to any other temporary disability for all job related purposes. This means that whether similarly situated employees are out on leave for back surgery or something pregnancy-related, they must be treated similarly.
2022 Proposed Regulations
Again, the 2022 proposed regulations includes some new rights and responsibilities related to pregnant and parenting people, and also restate and relocate some existing rights and obligations for readability and clarity. This section will focus on what’s new.
Defining Pregnancy and Related Conditions
Where the current rules repeat the phrase “pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom,” the proposed rules define “pregnancy and related conditions” as pregnancy, childbirth, termination of pregnancy, or lactation, as well as medical conditions related to any of the above, as well as recovery from any of the above. Including lactation specifically as well as “medical conditions” related to pregnancy, childbirth, termination, or lactation broadens the protections significantly from the current regulatory language.
And while the current regulations include “potential” parental status, the proposed regulations include past and potential pregnancy explicitly. While some may have interpreted the current regulations as including past and potential pregnancy, others recognize that parental status and pregnancy are not the same thing, and one can be pregnant (and give birth) without becoming a parent, and someone can be a parent or potential parent without being pregnant or giving birth. This specificity gives recipients clarity here about what is covered by Title IX and also highlights the need to develop inclusive policies that may factor in a broader range of people protected under the law.
The proposed rules also require schools to offer reasonable modifications to policies, practices, or procedures for students because of pregnancy or related conditions. The modifications would be implemented, coordinated, and documented by the Title IX Coordinator, although it is possible that the finalized rules will bring other appropriate officials, like the ADA Coordinator, into this process. These modifications would be provided on an individualized and voluntary basis, depending on the student’s needs, when necessary to prevent discrimination and ensure equal access to educational programs and activities, unless it would fundamentally alter the program or activity. This “fundamental alteration” language is reminiscent of language surrounding disability accommodations under Section 504 or the ADA.
The following is a non-exhaustive (but verbatim) list of reasonable modifications contained in the proposed regulations in section 106.40(b)(4)(iii):
- breaks during class to attend to related health needs
- expressing breast milk, or breastfeeding;
- intermittent absences to attend medical appointments;
- access to online or other homebound education;
- changes in schedule or course sequence;
- extension of time for coursework and rescheduling of tests and examinations;
- changes in physical space or supplies (for example, access to a larger desk or a footrest);
- elevator access
The proposed rules also require schools to provide pregnant students with information about the school’s obligations regarding pregnancy and related conditions. This notice requirement is new, and it is aligned with the notice rules in Title IX and the VAWA amendments to Clery: When the institution knows something about someone (that they experienced harassment or violence, for example), the school must provide that person certain information about available applicable resources and options.
First, under the proposed rules, when any employee becomes aware of a student’s pregnancy or related condition (either by that student or by someone with the legal right to act on their behalf), the employee must promptly notify that person of how to inform the Title IX Coordinator about the pregnancy for assistance, including providing the Coordinator’s contact information. If the employee reasonably believes the Title IX Coordinator has already been notified, they do not need to provide this information.
And the Title IX Coordinator must promptly inform the student or their representative of the following school obligations:
- Prohibit sex discrimination, including sex-based harassment.
- Provide the student with the option of reasonable modifications,
- Allow access, on a voluntary basis, to any separate and comparable portion of the education program or activity,
- Allow a voluntary leave of absence,
- Ensure the availability of lactation space
- Maintain grievance procedures that provide for the prompt and equitable resolution of complaints of sex discrimination
For the first time (under Title IX), the proposed rules refer to time and space for lactation, aligning with many state and local laws with similar requirements. Specifically, the proposed rules require the availability of lactation space that is not a bathroom, and that is clean and private, “shielded from view, free from intrusion from others.” And discrimination based on lactation or related medical conditions is prohibited, because lactation is part of the definition for “pregnancy and related conditions.”
The proposed regulations offer clarifications and expansions of the rights of and protections for pregnant people in the existing Title IX regulations. The final version of the rules may offer more flexibility about who will provide the required information to pregnant students or their representatives; as written, it’s the Title IX Coordinator. Some institutions or school systems may prefer having an academic advisor or health professional to take on this responsibility. Employees with responsibilities in ADA and 504 compliance can lend knowledge and experience related to reasonable modifications; remember that the proposed rules require treating disabilities related to pregnancy in the same manner and under the same policies as any other temporary disability or physical condition.
Grand River Solutions Title IX and Equity experts will track the changes and additions between the proposed and final rule in this area and help revise your policies and procedures regarding pregnant students, employees, and applicants.
Resource for Students and Schools on Discrimination Based on Pregnancy and Related Conditions, Department of Education, October 2022
OCR Announces Resolution of Pregnancy Discrimination Investigation of Salt Lake Community College, from Grand River Solutions
Know Your Rights, Title IX and Pregnancy, Department of Education, last modified in 2020
Supporting the Academic Success of Pregnant and Parenting Students, Department of Education, 2013