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10 CFR 1040.21
TITLE 10--ENERGY
CHAPTER X--DEPARTMENT OF ENERGY (GENERAL PROVISIONS)
PART 1040--NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS
Subpart C--Nondiscrimination on the Basis of Sex--Title IX of the Education Amendments of
1972, as Amended
Sec. 1040.21 Purpose.
The purpose of this subpart is to implement title IX of the
Education Amendments of 1972, Pub. L. 92-318, as amended by Pub. L. 93-
568, and Pub. L. 94-482, 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 the
program or activity is offered or sponsored by an educational
institution as defined in this subpart.
Sec. 1040.22 Application.
Except as provided in Secs. 1040.25, 1040.26, and 1040.27, this
subpart applies to every recipient and to each education program or
activity operated by the recipient which receives or benefits from
Federal financial assistance.
Sec. 1040.23 Definitions.
(a) Title IX means title IX of the Education Amendments of 1972,
Pub. L. 92-318, as amended by sec. 3 of Pub. L. 93-568, 88 Stat. 1855,
(except secs. 904 and 906 of the Amendments), 20 U.S.C. 1681, 1682,
1683, 1685, and 1686.
(b) 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 pre-school, a private
elementary or secondary school, or an applicant or recipient of the type
defined by paragraphs (c), (d), (e), or (f) of this section.
(c) 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 the 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.
(d) 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.
(e) 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.
(f) Institution of vocational education means a school or
institution (except an institution of professional, graduate, or
undergraduate higher education) which has as its primary purpose
preparation of students to pursue a technical, skilled, or semi-skilled
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 full time study.
(g) Administratively separate unit means a school, department, or
college of an educational institution (other
[[Page 738]]
than a local educational agency), admission to which is independent of
admission to any other component of the institution.
(h) 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.
(i) Student means a person who has gained admission.
(j) Transition plan means a plan subject to the approval of the
United States Commissioner of Education under sec. 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. The definitions set forth in
Sec. 1040.3 of subpart A of this part, to the extent not inconsistent
with this subpart, are made applicable to and incorporated into this
subpart.
Sec. 1040.24 Effects of other requirements.
(a) Effect of other Federal provisions. The obligations imposed by
this subpart are independent of, and do not alter, obligations not to
discriminate on the basis of sex imposed by title VII of the Civil
Rights Act of 1964 (42 U.S.C. 2000e et seq.); Executive Order 11246, as
amended; Sec. 799A and Sec. 845 of the Public Health Service Act (42
U.S.C. 295h-9 and 298b-2); the Equal Pay Act (29 U.S.C. 206 and 206(d);
and any other Act of Congress or Federal regulation.
(b) Effect of state or local law or other requirements. The
obligation to comply with this subpart 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 subpart 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.
Sec. 1040.25 Educational institutions controlled by religious
organizations.
(a) Application. This subpart does not apply to an educational
institution which is controlled by a religious organization to the
extent that application of this subpart would not be consistent with the
religious tenets of such an organization.
(b) Exemption. An educational institution which wishes to claim the
exemption set forth in paragraph (a) of this section is to do so by
submitting, in writing, to the Director a statement by the highest
ranking official of the institution identifying the provisions of this
subpart which conflict with a specific tenet of the religious
organization.
Sec. 1040.26 Military and merchant marine educational institutions.
This subpart does not apply to an educational institution whose
primary purpose is the training of individuals for military service of
the United States or for the merchant marine.
Sec. 1040.27 Membership practices of certain organizations.
(a) Social fraternities and sororities. This subpart does not apply
to the membership practices of social fraternities and sororities which
are exempt from taxation under Sec. 501(a) of the Internal Revenue Code
of 1954, the active membership of which consists primarily of students
in attendance at institutions of higher education.
(b) Y.M.C.A., Y.W.C.A., Girl Scouts, Boy Scouts, and Camp Fire
Girls. This subpart 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 the Camp Fire Girls.
(c) Voluntary youth service organizations. This subpart does not
apply to
[[Page 739]]
the membership practices of voluntary youth service organizations which
are exempt from taxation under Sec. 501(a) of the Internal Revenue Code
of 1954, the membership of which has been traditionally limited to
members of one sex and principally to persons of less than nineteen
years of age.
Sec. 1040.28 Admissions.
(a) Admission to education institutions prior to June 24, 1973 are
not covered by this subpart.
(b) Administratively separate units. For the purposes, only, of this
section, Secs. 1040.28 and 1040.29, each administratively separate unit
shall be deemed to be an educational institution.
(c) Application of Secs. 1040.31 through 1040.33. Except as provided
in paragraphs (c) and (d) of this section, Secs. 1040.31 through 1040.33
apply to each recipient. A recipient to which Secs. 1040.31 through
1040.33 apply shall not discriminate on the basis of sex in admission or
recruitment in violation of those sections.
(d) Educational institutions. Except as provided in paragraph (e) of
this section as to recipients which are educational institutions,
Secs. 1040.31 through 1040.33 apply 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. Sections
1040.31 through 1040.33 do not apply to any public institutions of
undergraduate higher education which, traditionally and continually from
its establishment, has had a policy of admitting only students of one
sex.
Sec. 1040.29 Educational institutions eligible to submit transition
plans.
(a) Application. This section applies to each educational
institution to which Secs. 1040.31 through 1040.33 apply 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 after that admitted as regular students individuals of the
sex not admitted prior to June 23, 1965.
(b) Provision for transition plans. An educational institution to
which this section applies is not to discriminate on the basis of sex in
admission or recruitment in violation of Secs. 1040.31 through 1040.33
unless it is carrying out a transition plan approved by the United
States Commissioner of Education as described in Sec. 1040.30, which
plan provides for the elimination of discrimination by the earliest
practicable date but in no event later than 90 days following final
publication of this regulation.
Sec. 1040.30 Transition plans.
(a) Submission of plans. Any institution to which Sec. 1040.28
applies and which is composed of more than one administratively separate
unit may submit either a single transition plan applicable to all units
or separate transition plans applicable to each unit.
(b) Content of plans. In order to be approved by the United States
Commissioner of Education, a transition plan is to:
(1) State the name, address, and Federal Interagency Committee on
Education (FICE) Code of the educational institution submitting the
plan, the administratively separate units to which the plan is
applicable, 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 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 indentified and indicate the schedule for
taking these steps and the individual responsible for their
implementation.
(5) Include estimates of the number of students, by sex, expected to
apply
[[Page 740]]
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. 1040.29 applies is to result in treatment of applicants to, or
students of, the recipient in violation of Secs. 1040.31 through 1040.33
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. 1040.29 applies is to include in its transition plan and
implement specific steps designed to encourage individuals of the
previously excluded sex to apply for admission to the institution. The
steps are to include instituting recruitment programs which emphasize
the institution's commitment to enrolling students of the sex previously
excluded.
Sec. 1040.31 Discrimination on the basis of sex in admission and
recruitment prohibited: 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 Secs. 1040.31, 1040.32, and 1040.33 apply, except as
provided in Secs. 1040.29 and 1040.30.
(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 Secs. 1040.31, 1040.32, and 1040.33
apply shall not:
(i) Give preference to one person over another on the basis of sex,
by ranking applicants separately on that basis, or otherwise;
(ii) Apply numerical limitations upon the number or proportion of
persons of either sex who may be admitted; or
(iii) Deny an equal opportunity for admission on the basis of sex.
(2) A recipient shall not administer or operate any test or other
criterion for admission which has a disproportionate adverse effect on
persons on the basis of sex unless the use of the test or criterion is
shown to predict validly success in the education program or activity
and alternative tests or criteria which do not have a disproportionate
adverse affect 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
Secs. 1040.31, 1040.32, and 1040.33 apply:
(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 persons on the
basis of pregnancy, childbirth, termination of pregnancy, or recovery
therefrom, or establish or follow any rule or practice which
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; or
(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 admission but only if the inquiry is made equally of
applicants of both sexes and if the results of the inquiry are not used
in connection with discrimination prohibited by this subpart.
Sec. 1040.32 Preference in admission.
A recipient to which Secs. 1040.31, 1040.32, and 1040.33 apply 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 Secs. 1040.31, 1040.32, and 1040.33.
Sec. 1040.33 Recruitment.
(a) Nondiscriminatory recruitment. A recipient to which
Secs. 1040.31, 1040.32, and 1040.33 apply shall not discriminate on the
basis of sex in the recruitment and admission of students. A recipient
may
[[Page 741]]
be required to undertake additional recruitment efforts for one sex as
remedial action under Sec. 1040.7(a) and may choose to undertake these
efforts as affirmative action under Sec. 1040.7(b).
(b) Recruitment at certain institutions. A recipient to which
Secs. 1040.31, 1040.32, and 1040.33 apply shall not recruit primarily or
exclusively at educational institutions, schools, or entities which
admit as students only or predominantly members of one sex, if these
actions have the effect of discriminating on the basis of sex in
violation of Secs. 1040.31, 1040.32, and 1040.33.
Sec. 1040.34 Education programs and activities.
(a) General. Except as provided elsewhere in this subpart, 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 or 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 Secs. 1040.31, 1040.32, and 1040.33 do not
apply; or
(2) An entity, not a recipient, to which Secs. 1040.31, 1040.32, and
1040.33 would not apply if the entity were a recipient.
(b) Specific prohibitions. Except as provided in Secs. 1040.34
through 1040.45, 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
the person satisfies any requirement or condition for the provision of
the 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;
(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. A recipient educational institution which administers or
assists in the administration of such scholarships, fellowships, or
other awards which are restricted to members of one sex must provide, or
otherwise make 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 recipients which require participation by any applicant or student in
any education program or activity not operated wholly by the recipient,
or which facilitates, permits, or considers participation in educational
consortia and cooperative employment and student-teaching assignments.
(2) The 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 the recipient which this subpart would prohibit the recipient from
taking; and
[[Page 742]]
(ii) Shall not facilitate, require, permit, or consider
participation if such action occurs.
Sec. 1040.35 Housing.
(a) General. 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 the 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 reasonable
action as may be necessary to assure itself that 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 this assistance to any agency, organization, or person which
provides all or part of such housing to students only of one sex.
Sec. 1040.36 Comparable facilities.
A recipient may provide separate toilet, locker room, and shower
facilities on the basis of sex, but the facilities provided for students
of one sex are to be comparable to the facilities provided for students
of the other sex.
Sec. 1040.37 Access to course offerings.
A recipient shall not provide any course or otherwise carry out any
of its education program or activity separately on the basis of sex, or
require or refuse participation by any of its students on that 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.
(b) This section does not prohibit grouping of students in physical
education classes and activities by ability as asessed 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 that
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.
Sec. 1040.38 Access to schools operated by LEAs.
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 the
recipient; or
(b) Any other school or educational unit operated by the recipient,
unless the recipient otherwise makes available to a person, under the
same policies and criteria of admission, courses, services, and
facilities comparable to
[[Page 743]]
each course, service, and facility offered in or through the schools.
Sec. 1040.39 Counseling and use of appraisal and counseling materials.
(a) Counseling. A recipient shall not discriminate against any
person on the basis of sex in 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 the basis of sex unless the different materials cover the same
occupations and interest areas and use of the different materials is
shown to be essential to eliminate sex bias. Recipients shall develop
and use internal procedures for ensuring that 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 action to assure itself that the 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 action to assure itself
that the disproportion is not the result of discrimination on the basis
of sex in counseling, appraisal materials, or by counselors.
Sec. 1040.40 Financial assistance.
(a) General. Except as provided in paragraphs (b), (c), and (d) of
this section, in providing financial assistance to any of its students,
a recipient shall not:
(1) On the basis of sex, provide different amounts or types of
assistance, limit eligibility for 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 the 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 assistance which treats persons of one sex different
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
require that awards be made to members of a particular sex specified in
those documents 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)(a)(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 shall provide reasonable
opportunities for the 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 of members
of each sex
[[Page 744]]
to the extent consistent with this section and Sec. 1040.44 of this
subpart.
Sec. 1040.41 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 the employment is made available
without discrimination on the basis of sex; and
(2) Shall not render 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 assure itself that all employment is made
available without discrimination on the basis of sex.
Sec. 1040.42 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. This section is not to
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.
Sec. 1040.43 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 recipient shall not
discriminate against any student, or exclude any student from its
education program or activity, including any class or extra-curricular
activity, on the basis of the 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 the 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 the 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 educational 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 the
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 a
period of time considered 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.
Sec. 1040.44 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 the recipient, and no recipient shall provide any athletics
separately on the basis of sex.
(b) Separate teams. Notwithstanding the requirements of paragraph
(a) of this section, a recipient may operate or sponsor separate teams
for members of
[[Page 745]]
each sex where selection for 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 shall be allowed to try-out for the
team offered unless the sport involved is a contact sport. For the
purposes of this subpart, 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 athletic opportunity for members of both sexes. In
determining whether equal opportunities are available, the Director,
FAPD, is to 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; and
(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, FAPD, 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, secondary or post-secondary 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.
Sec. 1040.45 Textbooks and curricular material.
Nothing in this regulation is to be interpreted as requiring,
prohibiting, or abridging, in any way, the use of particular textbooks
or curricular materials.
Sec. 1040.46 Procedures.
The procedural provisions applicable to Title VI of the Civil Rights
Act of 1964 are adopted and incorporated in this section by reference.
These procedures may be found in subparts G and H of this part.
Employment Practices
Sec. 1040.47 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 recruitment, employment consideration, or selection,
whether for full-time or part-time employment, under any educational
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.
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(4) A recipient shall not grant preferences to applicants for
employment on the basis of attendance at any education institution or
entity which admits as students only or predominantly members of one
sex, if giving of such preferences has the effect of discriminating on
the basis of sex in violation of this part.
(b) Application. The provisions of this subpart appply to:
(1) Recruitment, advertising, and the process of application for
employment;
(2) Hiring, upgrading, promotion, consideration for an 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.
Sec. 1040.48 Employment criteria.
A recipient shall not administer or operate any text 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.
Sec. 1040.49 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.
Sec. 1040.50 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.
Sec. 1040.51 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
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bona-fide occupational qualification for the positions in question as
set forth in Sec. 1040.57.
Sec. 1040.52 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 for employment not subject
to the provision of Sec. 1040.50.
(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.
Sec. 1040.53 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,
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 the leave of absence, 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.
Sec. 1040.54 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.
Sec. 1040.55 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.
Sec. 1040.56 Pre-employment inquiries.
(a) Marital status. A recipient shall not make pre-employment
inquiry as
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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.
Sec. 1040.57 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, 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.
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