The Biden Administration has recently taken steps through agency guidance, rulemaking and decision-making to highlight protections for students and employees with pregnancy-related conditions, including abortion, under the umbrella of Title IX. Against the backdrop of the Supreme Court’s recent decision in Dobbs v. Jackson Women’s Health Organization this past June overturning the 1973 ruling Roe v. Wade, which established a constitutional right to abortion, these recent actions by the Department of Education’s Office for Civil Rights (OCR) provide reminders to educational institutions that Title IX continues to guarantee certain protections under federal law for students and employees based on pregnancy and related conditions, including the termination of pregnancy.

New OCR resource on Title IX protections based on pregnancy-related conditions

On October 4, OCR released a new guidance document, Discrimination Based on Pregnancy and Related Conditions, reminding schools and students that Title IX, which prohibits discrimination based on sex in education programs or activities receiving federal funding, covers discrimination against students and employees based on pregnancy and related conditions. Notably, the OCR resource specifically states that Title IX protections pertaining to pregnancy include a prohibition against discrimination based on abortion.

The OCR resource outlines three main areas in which Title IX protects students and employees with pregnancy-related conditions:

• Discrimination and exclusion: The OCR guidance document cites to provisions in the Title IX regulations that prohibit schools from discriminating against or excluding from educational programs, activities, or employment any student or employee on the basis of “pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery therefrom.” The resource also cites the section of the 1975 Title IX statute that provides that Title IX shall not “require or prohibit any person, or public or private entity, to provide or pay for any benefit or service, including the use of facilities, related to an abortion,” or “to permit a penalty to be imposed on any person or individual because such person or individual is seeking or has received any benefit or service related to a legal abortion” (italics added).

• Medical and other benefits and services: Title IX requires schools to treat pregnancy, childbirth, false pregnancy, termination of pregnancy, and recovery from these conditions “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” for students, and for employees, as any other temporary disability for all job-related purposes “including commencement, duration and extensions of leave, payment of disability income, accrual of seniority and any other benefit or service, and reinstatement, and under any fringe benefit offered to employees.”

• Leave policy: If a school does not have a leave policy for students or the student does not qualify for leave under a policy, the school must still provide leave to the student for as long as the student’s physician deems medically necessary. Once the student returns, they must be reinstated to the status they held when the leave began. Similarly, if a school does not have a leave policy for employees or the employee does not qualify for leave, then the school must treat the pregnancy-related condition as justification for unpaid leave of absence for a reasonable period of time. After that time, the employee must be reinstated to their pre-leave status or a comparable position without reduction of compensation, loss of promotional opportunities, or any other employment rights or privileges.

Note that this new OCR resource refers to current Title IX law. The Biden Administration’s proposed Title IX rule, which would provide further protections for pregnant and parenting students and employees, will be discussed below.

Proposed Title IX rule would provide stronger protections for students experiencing pregnancy or related conditions

The Biden Administration’s proposed Title IX rule that was released in June—if passed as written—would provide significant updates to educational institutions’ obligations towards pregnant and parenting students and employees for the first time since 1975.

The proposed rule would update the definitions for the terms “pregnancy or related conditions” and “parental status”; prohibit discrimination against students and applicants for admission or employment on the basis of current, potential, or past pregnancy or related conditions (including lactation and termination of pregnancy); and clarify the obligations of schools and colleges towards students and employees who are experiencing pregnancy or related conditions, emphasizing that institutions must provide modifications for students and employees experiencing those conditions.

The proposed rule would require institutions to ensure that pregnant and parenting students are connected with the Title IX Coordinator in order to learn their rights under Title IX and obtain resources. Institutions would also be required to provide notification to parents of students with pregnancy-related conditions about the students’ rights.

For a more detailed summary of the proposed provisions related to pregnancy and parenting, you can read the Department of Education’s summary of major provisions chart here.

OCR determines that college violated Title IX and Section 504 in its treatment of a pregnant student

In June, OCR issued a resolution 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. The resolution follows an OCR investigation of a student’s complaint alleging that Salt Lake Community College discriminated against her on the basis of sex. The complaint alleged that a college professor encouraged the student to drop a course because she was pregnant, and the Title IX Coordinator did not promptly and equitably respond to the student’s complaint regarding her professor. In addition, the complaint alleged that the college did not engage in an interactive process with the student to provide her with academic support adjustments and/or related services despite the fact that she had contacted the Title IX Coordinator and the disability resource center numerous times.

During its investigation, OCR found that the college’s non-discrimination policy and Title IX website did not explain the college’s policies and procedures for addressing pregnant students’ requests for leaves of absence related to pregnancy or the need for academic adjustments or related aids and services. Furthermore, the college’s code of student rights and responsibilities did not provide information about the rights of pregnant students, and the college’s Americans with Disabilities Act (ADA) policy and disability resource center website did not make reference to pregnant students or describe the process the college uses to consider whether a pregnancy causes a temporary disability that would require academic adjustments.

In the resolution agreement, the college agreed to commit to the following actions to address its treatment of the pregnant student and to update its policy and procedures pertaining to pregnancy and related conditions:

• Complete and document its investigation of the student’s complaint of pregnancy discrimination;

• Revise its nondiscrimination statement, including the notice provided to students, to include references to actual or potential parental, family, or marital status, including pregnancy and related conditions;

• Revise its grievance procedures to include information regarding students’ opportunity to file a grievance based on alleged pregnancy discrimination;

• Publish information on its website for pregnant students about TIX rights and how to seek academic adjustments, special services, or excused absences; and

• Train the Title IX Coordinator, disability resource center staff, and other school employees regarding Title IX and Section 504 protections for pregnant students, academic adjustment, and special services available to pregnant students.

Takeaways

In light of the Biden Administration’s renewed efforts since the Dobbs decision to highlight and enforce protections for students and employees with pregnancy-related conditions under Title IX, schools and colleges should take the opportunity to review their institutional policies and procedures to ensure that they clearly prohibit discrimination on the basis of pregnancy and related conditions and explain the process for students and employees to request pregnancy-related accommodations and services, including accommodations for class attendance and homework policies and access to resources such as counseling, lactation rooms, childcare, and financial aid. In addition, institutions should ensure that they comply with federal laws when addressing student and employee complaints related to discrimination on the basis of pregnancy. Employees, especially those working in Title IX or accessibility resource centers, should be provided training that is at minimum compliant with Title IX, Section 504, and the ADA in order to respond appropriately to the needs of students experiencing pregnancy-related conditions.

*Third-year law student at Loyola University Chicago School of Law, currently a law clerk at Franczek P.C.