U.S. Department of Education’s Office for Civil Rights (OCR) recently released guidance linking the protections of Title IX of the Education Amendments Act to students and employees based on pregnancy and related conditions. The October 4, 2022 guidance reiterated that the protections of Title IX that prohibit discrimination on the basis of pregnancy have been in place since 1975. The guidance goes on to provide that schools may not discriminate against any student, or exclude any student from their education program or activity, including any class or extracurricular activity, based on the student’s pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom. Furthermore, a school may not discriminate against or exclude from employment any employee or applicant on these bases.
Schools are advised to treat pregnancy, childbirth, false pregnancy, termination of pregnancy, and recovery therefrom the same as any other temporary disability of a student. For employees, schools must treat pregnancy and its related conditions the same as any other temporary disability for all job-related purposes.
The guidance goes on to state that if a school does not have a leave policy for students, or if a student does not otherwise qualify for leave under existing district policies, the school must nonetheless provide leave to a student for pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom, for as long as the student’s physician deems such leave to be medically necessary. After the leave expires, the student must be reinstated to the status the student held when the leave began.
Finally, the resource states that a school must ensure that its teachers’ policies and practices do not discriminate against students because of pregnancy and related conditions. This means that a teacher may not refuse to allow a student to submit work after missing a deadline because of absences due to pregnancy or childbirth, and if part of the teacher’s grading is based on class attendance or participation, the student must be allowed to earn the miss credits and be reinstated to the student’s pre leave status.
As with other Title IX matters, students may file a complaint through their school’s grievance process or directly with OCR. For OCR’s purposes, a complainant can include students, parents and guardians, employees, community members, and others, including anyone who observes discrimination in educational programs based on sex, including pregnancy and related conditions.
What This Means for Schools: school districts are encouraged to review their policies and practices regarding student absences, return to school, and policies on work completion to ensure their compatibility with OCR expectations.