With the beginning of a new academic year, many institutions are facing questions from pregnant and parenting students regarding academic adjustments or accommodations due to pregnancy, childbirth, or recovery therefrom. Student requests sometimes leave administrators with questions regarding whether a modification is appropriate and how to best accommodate requests without compromising a course’s academic integrity. Administrators must effectively balance supporting the student against academic interests and compliance with Title IX and other discrimination statutes like the Americans with Disabilities Act (ADA) and Section 504 (504) of the Rehabilitation Act, both of which prohibit discrimination on the basis of disability.
Prohibited Discrimination
Currently, a patchwork of state and federal laws touch on the prohibition against sex and pregnancy discrimination, but do not go into great detail. In higher education, Title IX provides the most robust protections for pregnant students. Title IX prohibits recipients of federal financial assistance from engaging in discrimination on the basis of sex. And discrimination on the basis of pregnancy is considered a form of sex discrimination. The Title IX regulations state that recipients shall not “discriminate” or “exclude” individuals from its educational programs on the basis of their pregnancy. 34 C.F.R § 106.40(b)(1). In Guidance from the Department of Education, the Department stated that “where necessary, a school must make adjustments to the regular program that are reasonable and responsive to the student’s temporary pregnancy status.” Under the current regulations, pregnant women must be treated the same as other students with a “temporary” medical condition. The regulations also provide for pregnant students to voluntarily participate in a separate but comparable program, to take a voluntary leave of absence for a period deemed “medically necessary,” and prohibit institutions from requiring health certifications—unless such certifications are requested of all students for physical and emotional conditions requiring treatment.
Reviewing Student Requests
What do the Title IX protections mean in practice? While the current1 regulations are not clear on type and scope of accommodations, it is clear from Guidance and Department of Education OCR Resolution Agreements that institutions are expected to engage in a type of interactive process when they receive requests for academic adjustments due to pregnancy or related conditions.
As part of this interactive process, the institution should consider the nature of the student’s enrolled courses and the specific request. Administrators should also consider whether any limitations imposed on pregnant students are similar to limitations imposed on other students due to a temporary impairment. If the accommodation is not reasonable in light of the student’s needs and the course requirements, the institution should consider alternative requests.
Common requests can sometimes include:
- A larger desk
- Breaks during class
- Access to elevators
- Rescheduling tests/assignments
- Excusing absences
- Make-up work
- Temporary online course attendance
- Access to lactation spaces
- Release from University Housing
- Leave of absence
Institutions must also consider whether it is necessary to involve the ADA/504 coordinator in reviewing requests from students. A healthy pregnancy is generally not considered to be a disability. However, pregnancy complications may or may not rise to the level of a disability that substantially limits one or more major life activities, so don’t overlook ADA/504 protections. Medical documentation to support those accommodations may be requested.
On the Horizon
Over the last year and a half, the Department of Education has signaled its intention to focus on pregnant and parenting students. Since June of 2022, administrators have seen three resolution agreements, proposed regulations, and a new guidance document on pregnancy and parenting in higher education. In that regard, institutions should be careful to document every request received and the process by which the request was evaluated. Institutions must take care to promptly and consistently follow-up on requests. In a January 2023 OCR Resolution, the Department of Education critiqued Troy University for failing to consistently intervene when contacted by a student requesting adjustments and noted that the institution did not consistently document its efforts to accommodate the student.
Moving forward, your institution should be reviewing policies and procedures to ensure they are compliant with Title IX (and other applicable laws), providing training to faculty, Human Resources, and administrators regarding obligations to support pregnant and parenting students, and ensuring a process is in place for reviewing, implementing, and documenting requests for academic adjustments for pregnant students.
For employees, institutions must also comply with several other federal laws regarding support for pregnant and parenting employees. Recently, Bricker Graydon has written several articles addressing the new Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections (PUMP) Act, two federal laws which went into effect in 2023.
1 In the summer of 2022, the Department of Education released Proposed Title IX Regulations. The Proposed Regulations aim to codify much of the current sub-regulatory guidance and provide clarity regarding recipients’ obligations to support pregnant and parenting applicants, students, and employees. The proposed regulations clarify that when a recipient is informed of a student’s pregnancy or related condition, then the student must be provided contact info for the Title IX Coordinator and, once contacted, the Title IX Coordinator must inform the student of the availability of reasonable modifications to ensure equal access, the availability of a leave of absence, and more. (Proposed 34 C.F.R § 106.40(b)).
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