Coordination and Review Section
[Code of Federal Regulations]
[Title 45, Volume 1]
[Revised as of October 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 45CFR86]
[Page 380-398]
TITLE 45--PUBLIC WELFARE
SUBTITLE A--DEPARTMENT OF HEALTH
AND HUMAN SERVICES
PART 86--NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS AND ACTIVITIES RECEIVING OR BENEFITING FROM
FEDERAL FINANCIAL ASSISTANCE
Subpart A--Introduction
Sec.
86.1 Purpose and effective date.
86.2 Definitions.
86.3 Remedial and affirmative action and self-evaluation.
86.4 Assurance required.
86.5 Transfers of property.
86.6 Effect of other requirements.
86.7 Effect of employment opportunities.
86.8 Designation of responsible employee and adoption of grievance
procedures.
86.9 Dissemination of policy.
Subpart B--Coverage
86.11 Application.
86.12 Educational institutions controlled by religious organizations.
86.13 Military and merchant marine educational institutions.
86.14 Membership practices of certain organizations.
86.15 Admissions.
86.16 Educational institutions eligible to submit transition plans.
86.17 Transition plans.
86.18--86.20 [Reserved]
Subpart C--Discrimination on the Basis of Sex In Admission and
Recruitment Prohibited
86.21 Admission.
86.22 Preference in admission.
86.23 Recruitment.
86.24--86.30 [Reserved]
Subpart D--Discrimination on the Basis of Sex in Education Programs and
Activities Prohibited
86.31 Education programs and activities.
86.32 Housing.
86.33 Comparable facilities.
86.34 Access to course offerings.
86.35 Access to schools operated by L.E.A.s.
86.36 Counseling and use of appraisal and counseling materials.
86.37 Financial assistance.
86.38 Employment assistance to students.
86.39 Health and insurance benefits and services.
86.40 Marital or parental status.
86.41 Athletics.
86.42 Textbooks and curricular material.
86.43--86.50 [Reserved]
[[Page 381]]
Subpart E--Discrimination on the Basis of Sex In Employment in Education
Programs and Activities Prohibited
86.51 Employment.
86.52 Employment criteria.
86.53 Recruitment.
86.54 Compensation.
86.55 Job classification and structure.
86.56 Fringe benefits.
86.57 Marital or parental status.
86.58 Effect of State or local law or other requirements.
86.59 Advertising.
86.60 Pre-employment inquiries.
86.61 Sex as bona-fide occupational qualification.
86.62--86.70 [Reserved]
Subpart F--Procedures [Interim]
86.71 Interim procedures.
Subject Index to Title IX Preamble and Regulation
Appendix A to Part 86--Guidelines For Eliminating Discrimination and
Denial of Services on the Basis of Race, Color, National
Origin, Sex, and Handicap in Vocational Education Programs
[Note]
Source: 40 FR 24137, June 4, 1975, unless otherwise noted.
Subpart A--Introduction
Sec. 86.1 Purpose and effective date.
The purpose of this part is to effectuate title IX of the Education
Amendments of 1972, as amended by Pub. L. 93-568, 88 Stat. 1855 (except
sections 904 and 906 of those Amendments) which is designed to eliminate
(with certain exceptions) discrimination on the basis of sex in any
education program or activity receiving Federal financial assistance,
whether or not such program or activity is offered or sponsored by an
educational institution as defined in this part. This part is also
intended to effectuate section 844 of the Education Amendments of 1974,
Pub. L. 93-380, 88 Stat. 484. The effective date of this part shall be
July 21, 1975.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682, as amended by Pub. L. 93-568, 88 Stat. 1855, and sec.
844, Education Amendments of 1974, 88 Stat. 484, Pub. L. 93-380)
Sec. 86.2 Definitions.
As used in this part, the term--
(a) Title IX means title IX of the Education Amendments of 1972,
Pub. L. 92-318, as amended by section 3 of Pub. L. 93-568, 88 Stat.
1855, except sections 904 and 906 thereof; 20 U.S.C. 1681, 1682, 1683,
1685, 1686.
(b) Department means the Department of Health and Human Services.
(c) Secretary means the Secretary of Health and Human Services.
(d) Director means the Director of the Office for Civil Rights of
the Department.
(e) Reviewing Authority means that component of the Department
delegated authority by the Secretary to appoint, and to review the
decisions of, administrative law judges in cases arising under this
part.
(f) Administrative law judge means a person appointed by the
reviewing authority to preside over a hearing held under this part.
(g) Federal financial assistance means any of the following, when
authorized or extended under a law administered by the Department:
(1) A grant or loan of Federal financial assistance, including funds
made available for:
(i) The acquisition, construction, renovation, restoration, or
repair of a building or facility or any portion thereof; and
(ii) Scholarships, loans, grants, wages or other funds extended to
any entity for payment to or on behalf of students admitted to that
entity, or extended directly to such students for payment to that
entity.
(2) A grant of Federal real or personal property or any interest
therein, including surplus property, and the proceeds of the sale or
transfer of such property, if the Federal share of the fair market value
of the property is not, upon such sale or transfer, properly accounted
for to the Federal Government.
(3) Provision of the services of Federal personnel.
(4) Sale or lease of Federal property or any interest therein at
nominal consideration, or at consideration reduced for the purpose of
assisting the recipient or in recognition of public interest to be
served thereby, or permission to use Federal property or any interest
therein without consideration.
[[Page 382]]
(5) Any other contract, agreement, or arrangement which has as one
of its purposes the provision of assistance to any education program or
activity, except a contract of insurance or guaranty.
(h) Recipient means any State or political subdivision thereof, or
any instrumentality of a State or political subdivision thereof, any
public or private agency, institution, or organization, or other entity,
or any person, to whom Federal financial assistance is extended directly
or through another recipient and which operates an education program or
activity which receives or benefits from such assistance, including any
subunit, successor, assignee, or transferee thereof.
(i) Applicant means one who submits an application, request, or plan
required to be approved by a Department official, or by a recipient, as
a condition to becoming a recipient.
(j) Educational institution means a local educational agency
(L.E.A.) as defined by section 801(f) of the Elementary and Secondary
Education Act of 1965 (20 U.S.C. 881), a preschool, a private elementary
or secondary school, or an applicant or recipient of the type defined by
paragraph (k), (l), (m), or (n) of this section.
(k) Institution of graduate higher education means an institution
which:
(1) Offers academic study beyond the bachelor of arts or bachelor of
science degree, whether or not leading to a certificate of any higher
degree in the liberal arts and sciences; or
(2) Awards any degree in a professional field beyond the first
professional degree (regardless of whether the first professional degree
in such field is awarded by an institution of undergraduate higher
education or professional education); or
(3) Awards no degree and offers no further academic study, but
operates ordinarily for the purpose of facilitating research by persons
who have received the highest graduate degree in any field of study.
(l) Institution of undergraduate higher education means:
(1) An institution offering at least two but less than four years of
college level study beyond the high school level, leading to a diploma
or an associate degree, or wholly or principally creditable toward a
baccalaureate degree; or
(2) An institution offering academic study leading to a
baccalaureate degree; or
(3) An agency or body which certifies credentials or offers degrees,
but which may or may not offer academic study.
(m) Institution of professional education means an institution
(except any institution of undergraduate higher education) which offers
a program of academic study that leads to a first professional degree in
a field for which there is a national specialized accrediting agency
recognized by the United States Commissioner of Education.
(n) Institution of vocational education means a school or
institution (except an institution of professional or graduate or
undergraduate higher education) which has as its primary purpose
preparation of students to pursue a technical, skilled, or semiskilled
occupation or trade, or to pursue study in a technical field, whether or
not the school or institution offers certificates, diplomas, or degrees
and whether or not it offers fulltime study.
(o) Administratively separate unit means a school, department or
college of an educational institution (other than a local educational
agency) admission to which is independent of admission to any other
component of such institution.
(p) Admission means selection for part-time, full-time, special,
associate, transfer, exchange, or any other enrollment, membership, or
matriculation in or at an education program or activity operated by a
recipient.
(q) Student means a person who has gained admission.
(r) Transition plan means a plan subject to the approval of the
United States Commissioner of Education pursuant to section 901(a)(2) of
the Education Amendments of 1972, under which an educational institution
operates in making the transition from being an educational institution
which admits only students of one sex to being one which admits students
of both sexes without discrimination.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
[[Page 383]]
Sec. 86.3 Remedial and affirmative action and self-evaluation.
(a) Remedial action. If the Director finds that a recipient has
discriminated against persons on the basis of sex in an education
program or activity, such recipient shall take such remedial action as
the Director deems necessary to overcome the effects of such
discrimination.
(b) Affirmative action. In the absence of a finding of
discrimination on the basis of sex in an education program or activity,
a recipient may take affirmative action to overcome the effects of
conditions which resulted in limited participation therein by persons of
a particular sex. Nothing herein shall be interpreted to alter any
affirmative action obligations which a recipient may have under
Executive Order 11246.
(c) Self-evaluation. Each recipient education institution shall,
within one year of the effective date of this part:
(1) Evaluate, in terms of the requirements of this part, its current
policies and practices and the effects thereof concerning admission of
students, treatment of students, and employment of both academic and
non-academic personnel working in connection with the recipient's
education program or activity;
(2) Modify any of these policies and practices which do not or may
not meet the requirements of this part; and
(3) Take appropriate remedial steps to eliminate the effects of any
discrimination which resulted or may have resulted from adherence to
these policies and practices.
(d) Availability of self-evaluation and related materials.
Recipients shall maintain on file for at least three years following
completion of the evaluation required under paragraph (c) of this
section, and shall provide to the Director upon request, a description
of any modifications made pursuant to paragraph (c) (2) of this section
and of any remedial steps taken pursuant to paragraph (c) (3) of this
section.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
[40 FR 24128, June 4, 1975; 40 FR 39506, Aug. 28, 1975]
Sec. 86.4 Assurance required.
(a) General. Every application for Federal financial assistance for
any education program or activity shall as condition of its approval
contain or be accompanied by an assurance from the applicant or
recipient, satisfactory to the Director, that each education program or
activity operated by the applicant or recipient and to which this part
applies will be operated in compliance with this part. An assurance of
compliance with this part shall not be satisfactory to the Director if
the applicant or recipient to whom such assurance applies fails to
commit itself to take whatever remedial action is necessary in
accordance with Sec. 86.3(a) to eliminate existing discrimination on the
basis of sex or to eliminate the effects of past discrimination whether
occurring prior or subsequent to the submission to the Director of such
assurance.
(b) Duration of obligation. (1) In the case of Federal financial
assistance extended to provide real property or structures thereon, such
assurance shall obligate the recipient or, in the case of a subsequent
transfer, the transferee, for the period during which the real property
or structures are used to provide an education program or activity.
(2) In the case of Federal financial assistance extended to provide
personal property, such assurance shall obligate the recipient for the
period during which it retains ownership or possession of the property.
(3) In all other cases such assurance shall obligate the recipient
for the period during which Federal financial assistance is extended.
(c) Form. The Director will specify the form of the assurances
required by paragraph (a) of this section and the extent to which such
assurances will be required of the applicant's or recipient's
subgrantees, contractors, subcontractors, transferees, or successors in
interest.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
Sec. 86.5 Transfers of property.
If a recipient sells or otherwise transfers property financed in
whole or in part with Federal financial assistance
[[Page 384]]
to a transferee which operates any education program or activity, and
the Federal share of the fair market value of the property is not upon
such sale or transfer properly accounted for to the Federal Government
both the transferor and the transferee shall be deemed to be recipients,
subject to the provisions of Subpart B of this part.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
Sec. 86.6 Effect of other requirements.
(a) Effect of other Federal provisions. The obligations imposed by
this part are independent of, and do not alter, obligations not to
discriminate on the basis of sex imposed by Executive Order 11246, as
amended; sections 799A and 845 of the Public Health Service Act (42
U.S.C. 295h-9 and 298b-2); Title VII of the Civil Rights Act of 1964 (42
U.S.C. 2000e et seq.); the Equal Pay Act (29 U.S.C. 206 and 206(d)); and
any other Act of Congress or Federal regulation.
(Secs. 901, 902, 905, Education Amendments of 1972, 86 Stat. 373, 374,
375; 20 U.S.C. 1681, 1682, 1685)
(b) Effect of State or local law or other requirements. The
obligation to comply with this part is not obviated or alleviated by any
State or local law or other requirement which would render any applicant
or student ineligible, or limit the eligibility of any applicant or
student, on the basis of sex, to practice any occupation or profession.
(c) Effect of rules or regulations of private organizations. The
obligation to comply with this part is not obviated or alleviated by any
rule or regulation of any organization, club, athletic or other league,
or association which would render any applicant or student ineligible to
participate or limit the eligibility or participation of any applicant
or student, on the basis of sex, in any education program or activity
operated by a recipient and which receives or benefits from Federal
financial assistance.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
Sec. 86.7 Effect of employment opportunities.
The obligation to comply with this part is not obviated or
alleviated because employment opportunities in any occupation or
profession are or may be more limited for members of one sex than for
members of the other sex.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
Sec. 86.8 Designation of responsible employee and adoption of grievance
procedures.
(a) Designation of responsible employee. Each recipient shall
designate at least one employee to coordinate its efforts to comply with
and carry out its responsibilities under this part, including any
investigation of any complaint communicated to such recipient alleging
its noncompliance with this part or alleging any actions which would be
prohibited by this part. The recipient shall notify all its students and
employees of the name, office address and telephone number of the
employee or employees appointed pursuant to this paragraph.
(b) Complaint procedure of recipient. A recipient shall adopt and
publish grievance procedures providing for prompty and equitable
resolution of student and employee complaints alleging any action which
would be prohibited by this part.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
Sec. 86.9 Dissemination of policy.
(a) Notification of policy. (1) Each recipient shall implement
specific and continuing steps to notify applicants for admission and
employment, students and parents of elementary and secondary school
students, employees, sources of referral of applicants for admission and
employment, and all unions or professional organizations holding
collective bargaining or professional agreements with the recipient,
that it does not discriminate on the basis of sex in the educational
programs or activities which it operates, and that is required by title
IX and this part not to discriminate in such a manner. Such notification
shall contain
[[Page 385]]
such information, and be made in such manner, as the Director finds
necessary to apprise such persons of the protections against
discrimination assured them by title IX and this part, but shall state
at least that the requirement not to discriminate in education programs
and activities extends to employment therein, and to admission thereto
unless Subpart C does not apply to the recipient, and that inquiries
concerning the application of title IX and this part to such recipient
may be referred to the employee designated pursuant to Sec. 86.8, or to
the Director.
(2) Each recipient shall make the initial notification required by
paragraph (a) (1) of this section within 90 days of the effective date
of this part or of the date this part first applies to such recipient,
whichever comes later, which notification shall include publication in:
(i) Local newspapers;
(ii) Newspapers and magazines operated by such recipient or by
student, alumnae, or alumni groups for or in connection with such
recipient; and
(iii) Memoranda or other written communications distributed to every
student and employee of such recipient.
(b) Publications. (1) Each recipient shall prominently include a
statement of the policy described in paragraph (a) of this section in
each announcement, bulletin, catalog, or application form which it makes
available to any person of a type, described in paragraph (a) of this
section, or which is otherwise used in connection with the recruitment
of students or employees.
(2) A recipient shall not use or distribute a publication of the
type described in this paragraph which suggests, by text or
illustration, that such recipient treats applicants, students, or
employees differently on the basis of sex except as such treatment is
permitted by this part.
(c) Distribution. Each recipient shall distribute without
discrimination on the basis of sex each publication described in
paragraph (b) of this section, and shall apprise each of its admission
and employment recruitment representatives of the policy of
nondiscrimination described in paragraph (a) of this section, and
require such representatives to adhere to such policy.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
Subpart B--Coverage
Sec. 86.11 Application.
Except as provided in this subpart, this Part 86 applies to every
recipient and to each education program or activity operated by such
recipient which receives or benefits from Federal financial assistance.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
Sec. 86.12 Educational institutions controlled by religious
organizations.
(a) Application. This part does not apply to an educational
institution which is controlled by a religious organization to the
extent application of this part would not be consistent with the
religious tenets of such organization.
(b) Exemption. An educational institution which wishes to claim the
exemption set forth in paragraph (a) of this section, shall do so by
submitting in writing to the Director a statement by the highest ranking
official of the institution, identifying the provisions of this part
which conflict with a specific tenet of the religious organization.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
Sec. 86.13 Military and merchant marine educational institutions.
This part does not apply to an educational institution whose primary
purpose is the training of individuals for a military service of the
United States or for the merchant marine.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
Sec. 86.14 Membership practices of certain organizations.
(a) Social fraternities and sororities. This part does not apply to
the membership practices of social fraternities and sororities which are
exempt from taxation under section 501(a) of the Internal Revenue Code
of 1954, the active
[[Page 386]]
membership of which consists primarily of students in attendance at
institutions of higher education.
(b) YMCA, YWCA, Girl Scouts, Boy Scouts and Camp Fire Girls. This
part does not apply to the membership practices of the Young Men's
Christian Association, the Young Women's Christian Association, the Girl
Scouts, the Boy Scouts and Camp Fire Girls.
(c) Voluntary youth service organizations. This part does not apply
to the membership practices of voluntary youth service organizations
which are exempt from taxation under section 501(a) of the Internal
Revenue Code of 1954 and the membership of which has been traditionally
limited to members of one sex and principally to persons of less than
nineteen years of age.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682; sec. 3(a) of Pub. L. 93-568, 88 Stat. 1862 amending
sec. 901)
Sec. 86.15 Admissions.
(a) Admissions to educational institutions prior to June 24, 1973,
are not covered by this part.
(b) Administratively separate units. For the purposes only of this
section, Secs. 86.16 and 86.17, and Subpart C, each administratively
separate unit shall be deemed to be an educational institution.
(c) Application of Subpart C. Except as provided in paragraphs (d)
and (e) of this section, Subpart C applies to each recipient. A
recipient to which Subpart C applies shall not discriminate on the basis
of sex in admission or recruitment in violation of that subpart.
(d) Educational institutions. Except as provided in paragraph (e) of
this section as to recipients which are educational institutions,
Subpart C applies only to institutions of vocational education,
professional education, graduate higher education, and public
institutions of undergraduate higher education.
(e) Public institutions of undergraduate higher education. Subpart C
does not apply to any public institution of undergraduate higher
education which traditionally and continually from its establishment has
had a policy of admitting only students of one sex.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
[40 FR 24128, June 4, 1975; 40 FR 39506, Aug. 28, 1975]
Sec. 86.16 Educational institutions eligible to submit transition
plans.
(a) Application. This section applies to each educational
institution to which Subpart C applies which:
(1) Admitted only students of one sex as regular students as of June
23, 1972; or
(2) Admitted only students of one sex as regular students as of June
23, 1965, but thereafter admitted as regular students, students of the
sex not admitted prior to June 23, 1965.
(b) Provision for transition plans. An educational institution to
which this section applies shall not discriminate on the basis of sex in
admission or recruitment in violation of Subpart C unless it is carrying
out a transition plan approved by the United States Commissioner of
Education as described in Sec. 86.17, which plan provides for the
elimination of such discrimination by the earliest practicable date but
in no event later than June 23, 1979.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
Sec. 86.17 Transition plans.
(a) Submission of plans. An institution to which Sec. 86.16 applies
and which is composed of more than one administratively separate unit
may submit either a single transition plan applicable to all such units,
or a separate transition plan applicable to each such unit.
(b) Content of plans. In order to be approved by the United States
Commissioner of Education, a transition plan shall:
(1) State the name, address, and Federal Interagency Committee on
Education (FICE) Code of the educational institution submitting such
plan, the administratively separate units to which the plan is
applicable, and the name, address, and telephone number of the person to
whom questions concerning the plan may be addressed. The person who
submits the plan shall be the chief administrator or president of
[[Page 387]]
the institution, or another individual legally authorized to bind the
institution to all actions set forth in the plan.
(2) State whether the educational institution or administratively
separate unit admits students of both sexes, as regular students and, if
so, when it began to do so.
(3) Identify and describe with respect to the educational
institution or administratively separate unit any obstacles to admitting
students without discrimination on the basis of sex.
(4) Describe in detail the steps necessary to eliminate as soon as
practicable each obstacle so identified and indicate the schedule for
taking these steps and the individual directly responsible for their
implementation.
(5) Include estimates of the number of students, by sex, expected to
apply for, be admitted to, and enter each class during the period
covered by the plan.
(c) Nondiscrimination. No policy or practice of a recipient to which
Sec. 86.16 applies shall result in treatment of applicants to or
students of such recipient in violation of Subpart C unless such
treatment is necessitated by an obstacle identified in paragraph (b)(3)
of this section and a schedule for eliminating that obstacle has been
provided as required by paragraph (b)(4) of this section.
(d) Effects of past exclusion. To overcome the effects of past
exclusion of students on the basis of sex, each educational institution
to which Sec. 86.16 applies shall include in its transition plan, and
shall implement, specific steps designed to encourage individuals of the
previously excluded sex to apply for admission to such institution. Such
steps shall include instituting recruitment programs which emphasize the
institution's commitment to enrolling students of the sex previously
excluded.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
[40 FR 24128, June 4, 1975; 40 FR 39506, Aug. 28, 1975]
Secs. 86.18--86.20 [Reserved]
Subpart C--Discrimination on the Basis of Sex in Admission and
Recruitment Prohibited
Sec. 86.21 Admission.
(a) General. No person shall, on the basis of sex, be denied
admission, or be subjected to discrimination in admission, by any
recipient to which this subpart applies, except as provided in
Secs. 86.16 and 86.17.
(b) Specific prohibitions. (1) In determining whether a person
satisfies any policy or criterion for admission, or in making any offer
of admission, a recipient to which this subpart applies shall not:
(i) Give preference to one person over another on the basis of sex,
by ranking applicants separately on such basis, or otherwise;
(ii) Apply numerical limitations upon the number or proportion of
persons of either sex who may be admitted; or
(iii) Otherwise treat one individual differently from another on the
basis of sex.
(2) A recipient shall not administer or operate any test or other
criterion for admission which has a disproportionately adverse effect on
persons on the basis of sex unless the use of such test or criterion is
shown to predict validly success in the education program or activity in
question and alternative tests or criteria which do not have such a
disproportionately adverse effect are shown to be unavailable.
(c) Prohibitions relating to marital or parental status. In
determining whether a person satisfies any policy or criterion for
admission, or in making any offer of admission, a recipient to which
this subpart applies:
(1) Shall not apply any rule concerning the actual or potential
parental, family, or marital status of a student or applicant which
treats persons differently on the basis of sex;
(2) Shall not discriminate against or exclude any person on the
basis of pregnancy, childbirth, termination of pregnancy, or recovery
therefrom, or
[[Page 388]]
establish or follow any rule or practice which so discriminates or
excludes;
(3) Shall treat disabilities related to pregnancy, childbirth,
termination of pregnancy, or recovery therefrom in the same manner and
under the same policies as any other temporary disability or physical
condition; and
(4) Shall not make pre-admission inquiry as to the marital status of
an applicant for admission, including whether such applicant is ``Miss''
or ``Mrs.'' A recipient may make pre-admission inquiry as to the sex of
an applicant for admision, but only if such inquiry is made equally of
such applicants of both sexes and if the results of such inquiry are not
used in connection with discrimination prohibited by this part.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
Sec. 86.22 Preference in admission.
A recipient to which this subpart applies shall not give preference
to applicants for admission, on the basis of attendance at any
educational institution or other school or entity which admits as
students or predominantly members of one sex, if the giving of such
preference has the effect of discriminating on the basis of sex in
violation of this subpart.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
Sec. 86.23 Recruitment.
(a) Nondiscriminatory recruitment. A recipient to which this subpart
applies shall not discriminate on the basis of sex in the recruitment
and admission of students. A recipient may be required to undertake
additional recruitment efforts for one sex as remedial action pursuant
to Sec. 86.3(a), and may choose to undertake such efforts as affirmative
action pursuant to Sec. 86.3(b).
(b) Recruitment at certain institutions. A recipient to which this
subpart applies shall not recruit primarily or exclusively at
educational institutions, schools or entities which admit as students
only or predominantly members of one sex, if such actions have the
effect of discriminating on the basis of sex in violation of this
subpart.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
Secs. 86.24--86.30 [Reserved]
Subpart D--Discrimination on the Basis of Sex in Education Programs and
Activities Prohibited
Sec. 86.31 Education programs and activities.
(a) General. Except as provided elsewhere in this part, no person
shall, on the basis of sex, be excluded from participation in, be denied
the benefits of, or be subjected to discrimination under any academic,
extracurricular, research, occupational training, or other education
program or activity operated by a recipient which receives of benefits
from Federal financial assistance. This subpart does not apply to
actions of a recipient in connection with admission of its students to
an education program or activity of (1) a recipient to which Subpart C
does not apply, or (2) an entity, not a recipient, to which Subpart C
would not apply if the entity were a recipient.
(b) Specific prohibitions. Except as provided in this subpart, in
providing any aid, benefit, or service to a student, a recipient shall
not, on the basis of sex:
(1) Treat one person differently from another in determining whether
such person satisfies any requirement or condition for the provision of
such aid, benefit, or service;
(2) Provide different aid, benefits, or services or provide aid,
benefits, or services in a different manner;
(3) Deny any person any such aid, benefit, or service;
(4) Subject any person to separate or different rules of behavior,
sanctions, or other treatment;
(5) Discriminate against any person in the application of any rules
of appearance;
(6) Apply any rule concerning the domicile or residence of a student
or applicant, including eligibility for in-state fees and tuition;
(7) Aid or perpetuate discrimination against any person by providing
significant assistance to any agency, organization, or person which
discriminates on the basis of sex in providing any aid, benefit or
service to students or employees;
[[Page 389]]
(8) Otherwise limit any person in the enjoyment of any right,
privilege, advantage, or opportunity.
(c) Assistance administered by a recipient educational institution
to study at a foreign institution. A recipient educational institution
may administer or assist in the administration of scholarships,
fellowships, or other awards established by foreign or domestic wills,
trusts, or similar legal instruments, or by acts of foreign governments
and restricted to members of one sex, which are designed to provide
opportunities to study abroad, and which are awarded to students who are
already matriculating at or who are graduates of the recipient
institution; Provided, a recipient educational institution which
administers or assists in the administration of such scholarships,
fellowship, or other awards which are restricted to members of one sex
provides, or otherwise makes available reasonable opportunities for
similar studies for members of the other sex. Such opportunities may be
derived from either domestic or foreign sources.
(d) Programs not operated by recipient. (1) This paragraph applies
to any recipient which requires participation by any applicant, student,
or employee in any education program or activity not operated wholly by
such recipient, or which facilitates, permits, or considers such
participation as part of or equivalent to an education program or
activity operated by such recipient, including participation in
educational consortia and cooperative employment and student-teaching
assignments.
(2) Such recipient;
(i) Shall develop and implement a procedure designed to assure
itself that the operator or sponsor of such other education program or
activity takes no action affecting any applicant, student, or employee
of such recipient which this part would prohibit such recipient from
taking; and
(ii) Shall not facilitate, require, permit, or consider such
participation if such action occurs.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
Sec. 86.32 Housing.
(a) Generally. A recipient shall not, on the basis of sex, apply
different rules or regulations, impose different fees or requirements,
or offer different services or benefits related to housing, except as
provided in this section (including housing provided only to married
students).
(b) Housing provided by recipient. (1) A recipient may provide
separate housing on the basis of sex.
(2) Housing provided by a recipient to students of one sex, when
compared to that provided to students of the other sex, shall be as a
whole:
(i) Proportionate in quantity to the number of students of that sex
applying for such housing; and
(ii) Comparable in quality and cost to the student.
(c) Other housing. (1) A recipient shall not, on the basis of sex,
administer different policies or practices concerning occupancy by its
students of housing other than provided by such recipient.
(2) A recipient which, through solicitation, listing, approval of
housing, or otherwise, assists any agency, organization, or person in
making housing available to any of its students, shall take such
reasonable action as may be necessary to assure itself that such housing
as is provided to students of one sex, when compared to that provided to
students of the other sex, is as a whole: (i) Proportionate in quantity
and (ii) comparable in quality and cost to the student. A recipient may
render such assistance to any agency, organization, or person which
provides all or part of such housing to students only of one sex.
(Secs. 901, 902, 907, Education Amendments of 1972, 86 Stat. 373, 374,
375; 20 U.S.C. 1681, 1682, 1686)
Sec. 86.33 Comparable facilities.
A recipient may provide separate toilet, locker room, and shower
facilities on the basis of sex, but such facilities provided for
students of one sex shall be comparable to such facilities provided for
students of the other sex.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374)
Sec. 86.34 Access to course offerings.
A recipient shall not provide any course or otherwise carry out any
of its
[[Page 390]]
education program or activity separately on the basis of sex, or require
or refuse participation therein by any of its students on such basis,
including health, physical education, industrial, business, vocational,
technical, home economics, music, and adult education courses.
(a) With respect to classes and activities in physical education at
the elementary school level, the recipient shall comply fully with this
section as expeditiously as possible but in no event later than one year
from the effective date of this regulation. With respect to physical
education classes and activities at the secondary and post-secondary
levels, the recipient shall comply fully with this section as
expeditiously as possible but in no event later than three years from
the effective date of this regulation.
(b) This section does not prohibit grouping of students in physical
education classes and activities by ability as assessed by objective
standards of individual performance developed and applied without regard
to sex.
(c) This section does not prohibit separation of students by sex
within physical education classes or activities during participation in
wrestling, boxing, rugby, ice hockey, football, basketball and other
sports the purpose or major activity of which involves bodily contact.
(d) Where use of a single standard of measuring skill or progress in
a physical education class has an adverse effect on members of one sex,
the recipient shall use appropriate standards which do not have such
effect.
(e) Portions of classes in elementary and secondary schools which
deal exclusively with human sexuality may be conducted in separate
sessions for boys and girls.
(f) Recipients may make requirements based on vocal range or quality
which may result in a chorus or choruses of one or predominantly one
sex.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
Sec. 86.35 Access to schools operated by L.E.A.s.
A recipient which is a local educational agency shall not, on the
basis of sex, exclude any person from admission to:
(a) Any institution of vocational education operated by such
recipient; or
(b) Any other school or educational unit operated by such recipient,
unless such recipient otherwise makes available to such person, pursuant
to the same policies and criteria of admission, courses, services, and
facilities comparable to each course, service, and facility offered in
or through such schools.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
Sec. 86.36 Counseling and use of appraisal and counseling materials.
(a) Counseling. A recipient shall not discriminate against any
person on the basis of sex in the counseling or guidance of students or
applicants for admission.
(b) Use of appraisal and counseling materials. A recipient which
uses testing or other materials for appraising or counseling students
shall not use different materials for students on the basis of their sex
or use materials which permit or require different treatment of students
on such basis unless such different materials cover the same occupations
and interest areas and the use of such different materials is shown to
be essential to eliminate sex bias. Recipients shall develop and use
internal procedures for ensuring that such materials do not discriminate
on the basis of sex. Where the use of a counseling test or other
instrument results in a substantially disproportionate number of members
of one sex in any particular course of study or classification, the
recipient shall take such action as is necessary to assure itself that
such disproportion is not the result of discrimination in the instrument
or its application.
(c) Disproportion in classes. Where a recipient finds that a
particular class contains a substantially disproportionate number of
individuals of one sex, the recipient shall take such action as is
necessary to assure itself that such disproportion is not the result of
discrimination on the basis of
[[Page 391]]
sex in counseling or appraisal materials or by counselors.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
Sec. 86.37 Financial assistance.
(a) General. Except as provided in paragraphs (b) and (c) of this
section, in providing financial assistance to any of its students, a
recipient shall not: (1) On the basis of sex, provide different amount
or types of such assistance, limit eligibility for such assistance which
is of any particular type or source, apply different criteria, or
otherwise discriminate; (2) through solicitation, listing, approval,
provision of facilities or other services, assist any foundation, trust,
agency, organization, or person which provides assistance to any of such
recipient's students in a manner which discriminates on the basis of
sex; or (3) apply any rule or assist in application of any rule
concerning eligibility for such assistance which treats persons of one
sex differently from persons of the other sex with regard to marital or
parental status.
(b) Financial aid established by certain legal instruments. (1) A
recipient may administer or assist in the administration of
scholarships, fellowships, or other forms of financial assistance
established pursuant to domestic or foreign wills, trusts, bequests, or
similar legal instruments or by acts of a foreign government which
requires that awards be made to members of a particular sex specified
therein; Provided, That the overall effect of the award of such sex-
restricted scholarships, fellowships, and other forms of financial
assistance does not discriminate on the basis of sex.
(2) To ensure nondiscriminatory awards of assistance as required in
paragraph (b)(1) of this section, recipients shall develop and use
procedures under which:
(i) Students are selected for award of financial assistance on the
basis of nondiscriminatory criteria and not on the basis of availability
of funds restricted to members of a particular sex;
(ii) An appropriate sex-restricted scholarship, fellowship, or other
form of financial assistance is allocated to each student selected under
paragraph (b)(2)(i) of this section; and
(iii) No student is denied the award for which he or she was
selected under paragraph (b)(2)(i) of this section because of the
absence of a scholarship, fellowship, or other form of financial
assistance designated for a member of that student's sex.
(c) Athletic scholarships. (1) To the extent that a recipient awards
athletic scholarships or grants-in-aid, it must provide reasonable
opportunities for such awards for members of each sex in proportion to
the number of students of each sex participating in interscholastic or
intercollegiate athletics.
(2) Separate athletic scholarships or grants-in-aid for members of
each sex may be provided as part of separate athletic teams for members
of each sex to the extent consistent with this paragraph and Sec. 86.41.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682; and sec. 844, Education Amendments of 1974, Pub. L.
93-380, 88 Stat. 484)
[40 FR 24128, June 4, 1975; 40 FR 39506, Aug. 28, 1975]
Sec. 86.38 Employment assistance to students.
(a) Assistance by recipient in making available outside employment.
A recipient which assists any agency, organization or person in making
employment available to any of its students:
(1) Shall assure itself that such employment is made available
without discrimination on the basis of sex; and
(2) Shall not render such services to any agency, organization, or
person which discriminates on the basis of sex in its employment
practices.
(b) Employment of students by recipients. A recipient which employs
any of its students shall not do so in a manner which violates Subpart E
of this part.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
Sec. 86.39 Health and insurance benefits and services.
In providing a medical, hospital, accident, or life insurance
benefit, service, policy, or plan to any of its students, a recipient
shall not discriminate on the basis of sex, or provide such benefit,
service, policy, or plan in
[[Page 392]]
a manner which would violate Subpart E of this part if it were provided
to employees of the recipient. This section shall not prohibit a
recipient from providing any benefit or service which may be used by a
different proportion of students of one sex than of the other, including
family planning services. However, any recipient which provides full
coverage health service shall provide gynecological care.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
Sec. 86.40 Marital or parental status.
(a) Status generally. A recipient shall not apply any rule
concerning a student's actual or potential parental, family, or marital
status which treats students differently on the basis of sex.
(b) Pregnancy and related conditions. (1) A recipent shall not
discriminate against any student, or exclude any student from its
education program or activity, including any class or extracurricular
activity, on the basis of such student's pregnancy, childbirth, false
pregnancy, termination of pregnancy or recovery therefrom, unless the
student requests voluntarily to participate in a separate portion of the
program or activity of the recipient.
(2) A recipient may require such a student to obtain the
certification of a physician that the student is physically and
emotionally able to continue participation in the normal education
program or activity so long as such a certification is required of all
students for other physical or emotional conditions requiring the
attention of a physician.
(3) A recipient which operates a portion of its education program or
activity separately for pregnant students, admittance to which is
completely voluntary on the part of the student as provided in paragraph
(b)(1) of this section shall ensure that the instructional program in
the separate program is comparable to that offered to non-pregnant
students.
(4) A recipient shall treat pregnancy, childbirth, false pregnancy,
termination of pregnancy and recovery therefrom 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 which such
recipient administers, operates, offers, or participates in with respect
to students admitted to the recipient's educational program or activity.
(5) In the case of a recipient which does not maintain a leave
policy for its students, or in the case of a student who does not
otherwise qualify for leave under such a policy, a recipient shall treat
pregnancy, childbirth, false pregnancy, termination of pregnancy and
recovery therefrom as a justification for a leave of absence for so long
a period of time as is deemed medically necessary by the student's
physician, at the conclusion of which the student shall be reinstated to
the status which she held when the leave began.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
Sec. 86.41 Athletics.
(a) General. No person shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, be treated differently from
another person or otherwise be discriminated against in any
interscholastic, intercollegiate, club or intramural athletics offered
by a recipient, and no recipient shall provide any such athletics
separately on such basis.
(b) Separate teams. Notwithstanding the requirements of paragraph
(a) of this section, a recipient may operate or sponsor separate teams
for members of each sex where selection for such teams is based upon
competitive skill or the activity involved is a contact sport. However,
where a recipient operates or sponsors a team in a particular sport for
members of one sex but operates or sponsors no such team for members of
the other sex, and athletic opportunities for members of that sex have
previously been limited, members of the excluded sex must be allowed to
try-out for the team offered unless the sport involved is a contact
sport. For the purposes of this part, contact sports include boxing,
wrestling, rugby, ice hockey, football, basketball and other sports the
purpose of major activity of which involves bodily contact.
(c) Equal opportunity. A recipient which operates or sponsors
interscholastic, intercollegiate, club or intramural athletics shall
provide equal
[[Page 393]]
athletic opportunity for members of both sexes. In determining whether
equal opportunities are available the Director will consider, among
other factors:
(1) Whether the selection of sports and levels of competition
effectively accommodate the interests and abilities of members of both
sexes;
(2) The provision of equipment and supplies;
(3) Scheduling of games and practice time;
(4) Travel and per diem allowance;
(5) Opportunity to receive coaching and academic tutoring;
(6) Assignment and compensation of coaches and tutors;
(7) Provision of locker rooms, practice and competitive facilities;
(8) Provision of medical and training facilities and services;
(9) Provision of housing and dining facilities and services;
(10) Publicity.
Unequal aggregate expenditures for members of each sex or unequal
expenditures for male and female teams if a recipient operates or
sponsors separate teams will not constitute noncompliance with this
section, but the Director may consider the failure to provide necessary
funds for teams for one sex in assessing equality of opportunity for
members of each sex.
(d) Adjustment period. A recipient which operates or sponsors
interscholastic, intercollegiate, club or intramural athletics at the
elementary school level shall comply fully with this section as
expeditiously as possible but in no event later than one year from the
effective date of this regulation. A recipient which operates or
sponsors interscholastic, intercollegiate, club or intramural athletics
at the secondary or post-secondary school level shall comply fully with
this section as expeditiously as possible but in no event later than
three years from the effective date of this regulation.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682; and sec. 844, Education Amendments of 1974, Pub. L.
93-380, 88 Stat. 484)
[40 FR 24128, June 4, 1975; 40 FR 39506, Aug. 28, 1975]
Sec. 86.42 Textbooks and curricular material.
Nothing in this regulation shall be interpreted as requiring or
prohibiting or abridging in any way the use of particular textbooks or
curricular materials.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
Secs. 86.43--86.50 [Reserved]
Subpart E--Discrimination on the Basis of Sex in Employment in Education
Programs and Activities Prohibited
Sec. 86.51 Employment.
(a) General. (1) No person shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subjected to
discrimination in employment, or recruitment, consideration, or
selection therefor, whether full-time or part-time, under any education
program or activity operated by a recipient which receives or benefits
from Federal financial assistance.
(2) A recipient shall make all employment decisions in any education
program or activity operated by such recipient in a nondiscriminatory
manner and shall not limit, segregate, or classify applicants or
employees in any way which could adversely affect any applicant's or
employee's employment opportunities or status because of sex.
(3) A recipient shall not enter into any contractual or other
relationship which directly or indirectly has the effect of subjecting
employees or students to discrimination prohibited by this subpart,
including relationships with employment and referral agencies, with
labor unions, and with organizations providing or administering fringe
benefits to employees of the recipient.
(4) A recipient shall not grant preferences to applicants for
employment on the basis of attendance at any educational institution or
entity which admits as students only or predominantly members of one
sex, if the giving of such preferences has the effect of discriminating
on the basis of sex in violation of this part.
[[Page 394]]
(b) Application. The provisions of this subpart apply to:
(1) Recruitment, advertising, and the process of application for
employment;
(2) Hiring, upgrading, promotion, consideration for and award of
tenure, demotion, transfer, layoff, termination, application of nepotism
policies, right of return from layoff, and rehiring;
(3) Rates of pay or any other form of compensation, and changes in
compensation;
(4) Job assignments, classifications and structure, including
position descriptions, lines of progression, and seniority lists;
(5) The terms of any collective bargaining agreement;
(6) Granting and return from leaves of absence, leave for pregnancy,
childbirth, false pregnancy, termination of pregnancy, leave for persons
of either sex to care for children or dependents, or any other leave;
(7) Fringe benefits available by virtue of employment, whether or
not administered by the recipient;
(8) Selection and financial support for training, including
apprenticeship, professional meetings, conferences, and other related
activities, selection for tuition assistance, selection for sabbaticals
and leaves of absence to pursue training;
(9) Employer-sponsored activities, including social or recreational
programs; and
(10) Any other term, condition, or privilege of employment.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
Sec. 86.52 Employment criteria.
A recipient shall not administer or operate any test or other
criterion for any employment opportunity which has a disproportionately
adverse effect on persons on the basis of sex unless:
(a) Use of such test or other criterion is shown to predict validly
successful performance in the position in question; and
(b) Alternative tests or criteria for such purpose, which do not
have such disproportionately adverse effect, are shown to be
unavailable.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
Sec. 86.53 Recruitment.
(a) Nondiscriminatory recruitment and hiring. A recipient shall not
discriminate on the basis of sex in the recruitment and hiring of
employees. Where a recipient has been found to be presently
discriminating on the basis of sex in the recruitment or hiring of
employees, or has been found to have in the past so discriminated, the
recipient shall recruit members of the sex so discriminated against so
as to overcome the effects of such past or present discrimination.
(b) Recruitment patterns. A recipient shall not recruit primarily or
exclusively at entities which furnish as applicants only or
predominantly members of one sex if such actions have the effect of
discriminating on the basis of sex in violation of this subpart.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
Sec. 86.54 Compensation.
A recipient shall not make or enforce any policy or practice which,
on the basis of sex:
(a) Makes distinctions in rates of pay or other compensation;
(b) Results in the payment of wages to employees of one sex at a
rate less than that paid to employees of the opposite sex for equal work
on jobs the performance of which requires equal skill, effort, and
responsibility, and which are performed under similar working
conditions.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
Sec. 86.55 Job classification and structure.
A recipient shall not:
(a) Classify a job as being for males or for females;
(b) Maintain or establish separate lines of progression, seniority
lists, career ladders, or tenure systems based on sex; or
(c) Maintain or establish separate lines of progression, seniority
systems, career ladders, or tenure systems for similar jobs, position
descriptions, or job requirements which classify persons on the basis of
sex, unless sex is a bona-fide occupational qualification
[[Page 395]]
for the positions in question as set forth in Sec. 86.61.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
[40 FR 24128, June 4, 1975; 40 FR 39506, Aug. 28, 1975]
Sec. 86.56 Fringe benefits.
(a) Fringe benefits defined. For purposes of this part, fringe
benefits means: Any medical, hospital, accident, life insurance or
retirement benefit, service, policy or plan, any profit-sharing or bonus
plan, leave, and any other benefit or service of employment not subject
to the provision of Sec. 86.54.
(b) Prohibitions. A recipient shall not:
(1) Discriminate on the basis of sex with regard to making fringe
benefits available to employees or make fringe benefits available to
spouses, families, or dependents of employees differently upon the basis
of the employee's sex;
(2) Administer, operate, offer, or participate in a fringe benefit
plan which does not provide either for equal periodic benefits for
members of each sex, or for equal contributions to the plan by such
recipient for members of each sex; or
(3) Administer, operate, offer, or participate in a pension or
retirement plan which establishes different optional or compulsory
retirement ages based on sex or which otherwise discriminates in
benefits on the basis of sex.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
Sec. 86.57 Marital or parental status.
(a) General. A recipient shall not apply any policy or take any
employment action:
(1) Concerning the potential marital, parental, or family status of
an employee or applicant for employment which treats persons differently
on the basis of sex; or
(2) Which is based upon whether an employee or applicant for
employment is the head of household or principal wage earner in such
employee's or applicant's family unit.
(b) Pregnancy. A recipient shall not discriminate against or exclude
from employment any employee or applicant for employment on the basis of
pregnancy, childbirth, false pregnancy, termination of pregnancy, or
recovery therefrom.
(c) Pregnancy as a temporary disability. A recipient shall treat
pregnancy, childbirth, false pregnancy, termination of pregnancy, and
recovery therefrom and any temporary disability resulting therefrom 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 by
virtue of employment.
(d) Pregnancy leave. In the case of a recipient which does not
maintain a leave policy for its employees, or in the case of an employee
with insufficient leave or accrued employment time to qualify for leave
under such a policy, a recipient shall treat pregnancy, childbirth,
false pregnancy, termination of pregnancy and recovery therefrom as a
justification for a leave of absence without pay for a reasonable period
of time, at the conclusion of which the employee shall be reinstated to
the status which she held when the leave began or to a comparable
position, without decrease in rate of compensation or loss of
promotional opportunities, or any other right or privilege of
employment.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
Sec. 86.58 Effect of State or local law or other requirements.
(a) Prohibitory requirements. The obligation to comply with this
subpart is not obviated or alleviated by the existence of any State or
local law or other requirement which imposes prohibitions or limits upon
employment of members of one sex which are not imposed upon members of
the other sex.
(b) Benefits. A recipient which provides any compensation, service,
or benefit to members of one sex pursuant to a State or local law or
other requirement shall provide the same compensation, service, or
benefit to members of the other sex.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
[[Page 396]]
Sec. 86.59 Advertising.
A recipient shall not in any advertising related to employment
indicate preference, limitation, specification, or discrimination based
on sex unless sex is a bona-fide occupational qualification for the
particular job in question.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
Sec. 86.60 Pre-employment inquiries.
(a) Marital status. A recipient shall not make pre-employment
inquiry as to the marital status of an applicant for employment,
including whether such applicant is ``Miss or Mrs.''
(b) Sex. A recipient may make pre-employment inquiry as to the sex
of an applicant for employment, but only if such inquiry is made equally
of such applicants of both sexes and if the results of such inquiry are
not used in connection with discrimination prohibited by this part.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
Sec. 86.61 Sex as a bona-fide occupational qualification.
A recipient may take action otherwise prohibited by this subpart
provided it is shown that sex is a bona-fide occupational qualification
for that action, such that consideration of sex with regard to such
action is essential to successful operation of the employment function
concerned. A recipient shall not take action pursuant to this section
which is based upon alleged comparative employment characteristics or
stereotyped characterizations of one or the other sex, or upon
preference based on sex of the recipient, employees, students, or other
persons, but nothing contained in this section shall prevent a recipient
from considering an employee's sex in relation to employment in a locker
room or toilet facility used only by members of one sex.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
Secs. 86.62--86.70 [Reserved]
Subpart F--Procedures [Interim]
Sec. 86.71 Interim procedures.
For the purposes of implementing this part during the period between
its effective date and the final issuance by the Department of a
consolidated procedural regulation applicable to title IX and other
civil rights authorities administered by the Department, the procedural
provisions applicable to title VI of the Civil Rights Act of 1964 are
hereby adopted and incorporated herein by reference. These procedures
may be found at 45 CFR 80-6 through 80-11 and 45 CFR Part 81.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
Subject Index to Title IX Preamble and Regulation \1\
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\1\ Preamble paragraph numbers are in brackets [ ].
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A
Access to Course Offerings [43, 55, 56, 57, 58]; 86.34
Access to Schools Operated by LEA's, [44]; 86.35
Admissions, [5, 6, 30]; 86.15, 86.21
Affirmative and remedial action, [16, 17, 24]; 86.3 (a), (b)
Administratively separate units, [30];86.15(b), 86.2(o)
Educational Institutions, [30], 86.15(d), 86.2(n)
General, 86.21(a), 86.2(p),
Prohibitions relating to marital and parental status, [32, 36];
86.21(c)
Professional schools, [30], 86.2(m)
Public institutions of undergraduate higher education, 86.15(e)
Recruitment, [34, 35]; 86.23
Specific prohibitions, 86.21(b)
Tests, [31]; 86.21(b)(2)
Preference in admission, [35]; 86.22
Advertising, 86.59
Affirmative Action, see ``Remedial and Affirmative Actions''
Assistance to ``outside'' discriminatory organizations, [40, 53];
86.31(b)(7), (c)
Assurances, [18]; 86.4
Duration of obligation, 86.4(b)
Form, 86.4(c)
Athletics, [69 to 78]; 86.41
Adjustment period, [78]; 86.41(d)
Contact sport defined, 86.41(d)
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Equal opportunity, [76, 77]; 86.41(d)
Determining factors, 86.41(c) (i) to (x)
Equipment, 86.41(c)
Expenditures, 86.41(c)
Facilities, 86.41(c)
Travel, 86.41(c)
Scholarships, [64, 65]; 86.37(d)
General, [69, 70, 71, 72, 73, 74, 75]; 86.41(a)
Separate teams, [75]; 86.41(b)
B
BFOQ, [96]; 86.61
C
Comparable facilities
Housing, [42, 54]; 86.32
Other, 86.33, 86.35(b)
Compensation, [84, 87, 92]; 86.54
Counseling
Disproportionate classes, [45, 59]; 86.36(c)
General, [45, 59]; 86.36(a)
Materials, [45, 59]; 86.36(b)
Course Offerings
Adjustment period, [55]; 86.34(a) (i)
General, [7, 43]; 86.34
Music classes, [43]; 86.34(f)
Physical education, [43, 56, 58];
Sex education, [43, 57]; 86.34(e)
Coverage, [5]; 86.11 to 86.17
Exemptions
Curricular materials, [52]; 86.42(a)
D
Definitions, [14, 15]; 86.2(a) to (r)
Designation of responsible employee, [20, 22]; 86.8(a), (b)
Dissemination of policy, [21]; 86.9
Distribution, 86.9(c)
Notification of policy, [21]; 86.9(a)
Publications, 86.9(b)
Dress codes 86.31(b) (4)
E
Education Institutions
Controlled by religious organizations, 86.12
Application, [28, 29]; 86.12(a)
Exemption, [26]; 86.12(b)
Education Program and Activities
Benefiting from Federal financial assistance, [10, 11]; 86.11
General, [10, 11, 53]; 86.31(a)
Programs not operated by recipient, [41, 54]; 86.31(c)
Specific prohibitions, [38, 39, 40, 53]; 86.31 (b)
Effective Date, [3]
Employee responsible for Title IX, see ``Designation of Responsible
Employee''
Employment
Advertising, 86.59
Application, 86.51(b)
Compensation, [84, 92]; 86.54
Employment criteria, 86.52
Fringe benefits, [88, 89]; 86.56
General, [81, 82, 87]; 86.51
Job Classification and Structure, 86.55
Marital and Parental Status, 86.57
Pregnancy, [85, 93]; 86.57(b)
Pregnancy as Temporary Disability, [85, 93]; 86.57(c)
Pregnancy Leave, [85, 93, 94]; 86.57(d)
Pre-Employment Inquiry
Recruitment, [83, 90, 91, 95]
Sex as a BFOQ, [96]; 86.61
Student Employment, [66]; 86.38
Tenure, 86.51(b) (2)
Exemptions, [5, 27, 28, 29, 30, 53]; 86.12(b), 86.13, 86.14, 86.15(a),
86.15(d), 86.16
F
Federal Financial Assistance, 86.2(a)
Financial Assistance to students, [46, 60, 61]; 86.37
Athletic Scholarships, [46, 64, 65]; 86.37(d)
Foreign institutions, study at [63]; 86.31(c)
General, 86.37
Non-need scholarships, [62]; 86.37(b)
Pooling of sex-restrictive, [46, 61, 62]; 86.37(b)
Sex-restrictive assistance through foreign or domestic wills [46,
61, 62]; 86.37(b)
Foreign Scholarships, see ``Financial assistance'' 86.37 and
``Assistance to `outside' discriminatory organizations'',
86.31(c)
Fraternities/Sororities
Social, [53, 27, 28]; 86.14(a)
Business/professional, [40, 53, 27, 28]; 86.31(b) (7)
Honor societies, [40, 53]; 86.31(b) (7)
Fringe benefits, [67, 88, 89]; 86.56, 86.39
Part-time employees, [89]
G
Grievance Procedure, see ``Designation of responsible employee'',
86.8(a) (b)
H
Health and Insurance Benefits and Services, [67, 88, 93]; 86.39, 86.56
Honor societies, [40, 53]; 86.31(b) (7)
Housing, 86.32
Generally, [42]; 86.32(b)
Provided by recipient, 86.32(b)
Other housing, [54]; 86.32(c)
J
Job Classification and Structure, 86.55
L
LEA's, [44]; 86.35
M
Marital and Parental Status
Employment
General, [85, 93, 94]; 86.57
Pregnancy, [85, 93, 94]; 86.57(b)
Pregnancy as a temporary disability, [85, 93, 94]; 86.57(c)
Pregnancy leave, [85, 93, 94]; 86.57(d)
Students
General, [49]; 86.40(a) (b)
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Pregnancy and related conditions, [50]; 86.40(b) (1) (2) (3) (4) (5)
Class participation, [50]; 86.40(b) (1)
Physician certification, [50]; 86.40(b) (2)
Special classes, [50]; 86.40(b) (3)
Temporary leave, [50]; 86.40(b) (4) (5)
Membership Practices of Social fraternities and sororities, [27, 28,
53]; 86.14(a)
Voluntary youth service organizations, [27, 28, 53]; 86.14(c)
YMCA, YWCA and others, [27, 28, 53]; 86.14(b)
Military and Merchant Marine Educational Institutions, [29]; 86.13
P
Pooling, see ``Financial Assistance'', 86.37
Pre-employment Inquiries
Marital status, [86, 95]; 86.60(a)
Sex, 86.60(b)
Preference in Admissions, [35]; 86.22
See also ``Remedial and Affirmative Action''
Pregnancy, Employment
General, [85, 93, 94]; 86.57
Pregnancy, [85, 93, 94]; 86.57(b)
Pregnancy as temporary disability, [85, 93, 94]; 86.57(c)
Pregnancy leave, [85, 93, 94]; 86.57(d)
Students
General, [49, 50]; 86.40(a) and (b)
Pregnancy and related conditions; [50]; 86.40(b) (1) to (5)
Class Participation, [50, 55, 58]; 86.40(b) (1)
Physical certification, [50]; 86.40(b) (2)
Special class, [50]; 86.40 (b) (3)
Temporary leave, [50]; 86.40(b) (4), (5)
Private Undergraduate Professional Schools, [30]; 86.15(d)
Purpose of Regulation, [13]; 86.1
R
Real Property, 86.2(g)
Recruitment
Employment
Nondiscrimination, [83, 91]; 86.53(a)
Patterns, 86.53(b)
Student
Nondiscrimination, [34, 35]; 86.23(a)
Recruitment at certain institutions, 86.23 (b)
Religious Organizations
Application, [29, 28]; 86.12(a)
Exemption, [26]; 86.12(b)
Remedial and Affirmative Actions, [16, 17, 24]; 86.3
S
Scholarships, see ``Financial Assistance'', 86.37
Self-evaluation, [16, 22]; 86.3(c) (d)
Surplus Property (see Transfer of Property 86.5)
Duration of obligation 86.4(b)
Real Property 86.4(b) (1)
T
Textbooks and curricular materials, [52, 79, 80]; 86.42
Termination of funds, [10, 11]
Transfer of property, 86.5
Transition Plans
Content of plans, 86.17(b)
Different from Adjustment period, [78]; 86.41(d)
Submission of plans, 86.17(a)
Appendix A to Part 86--Guidelines for Eliminating Discrimination and
Denial of Services on the Basis of Race, Color, National Origin, Sex,
and Handicap in Vocational Education Programs
Note: For the text of these guidelines, see 45 CFR Part 80, Appendix
B.
[44 FR 17168, Mar. 21, 1979]
