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…
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