Coordination and Review Section
34 C.F.R.
ยงยง 106.1 - 106.71
Title 34 -- Education
CHAPTER I--OFFICE FOR CIVIL RIGHTS,
DEPARTMENT OF EDUCATION
PART 106--NONDISCRIMINATION ON THE
BASIS OF SEX IN
EDUCATION PROGRAMS AND ACTIVITIES RECEIVING OR
BENEFITING FROM FEDERAL FINANCIAL ASSISTANCE
Source: 45 FR 30955, May 9, 1980, unless otherwise noted.
Subpart A--Introduction
106.1 Purpose and effective date.
106.2 Definitions.
106.3 Remedial and affirmative action and self-evaluation.
106.4 Assurance required.
106.5 Transfers of property.
106.6 Effect of other requirements.
106.7 Effect of employment opportunities.
106.8 Designation of responsible employee and adoption of grievance procedures.
106.9 Dissemination of policy.
Subpart B--Coverage
106.11 Application.
106.12 Educational institutions controlled by religious organizations.
106.13 Military and merchant marine educational institutions.
106.14 Membership practices of certain organizations.
106.15 Admissions.
106.16 Educational institutions eligible to submit transition plans.
106.17 Transition plans.
Subpart C--Discrimination on the Basis of Sex in Admission and Recruitment Prohibited
106.21 Admission.
106.22 Preference in admission.
106.23 Recruitment.
Subpart D--Discrimination on the Basis of Sex in Education Programs and Activities Prohibited
106.31 Education programs and activities.
106.32 Housing.
106.33 Comparable facilities.
106.34 Access to course offerings.
106.35 Access to schools operated by LEAs.
106.36 Counseling and use of appraisal and counseling materials.
106.37 Financial assistance.
106.38 Employment assistance to students.
106.39 Health and insurance benefits and services.
106.40 Marital or parental status.
106.41 Athletics.
106.42 Textbooks and curricular material.
Subpart E--Discrimination on the Basis of Sex in Employment in Education Programs and Activities Prohibited
106.51 Employment.
106.52 Employment criteria.
106.53 Recruitment.
106.54 Compensation.
106.55 Job classification and structure.
106.56 Fringe benefits.
106.57 Marital or parental status.
106.58 Effect of State or local law or other requirements.
106.59 Advertising.
106.60 Pre-employment inquiries.
106.61 Sex as a bona-fide occupational qualification.
Subpart F--Procedures [Interim]
106.71 Procedures.
Subject Index to Title IX Preamble and Regulation
Appendix A--Guidelines for Eliminating Discrimination and Denial of Services on the Basis of Race,
Color, National Origin, Sex, and Handicap in Vocational Education Programs [Note]
Subpart A--Introduction
Sec. 106.1 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.
(Authority: 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)
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Sec. 106.2 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 Education.
(c) Secretary means the Secretary of Education.
(d) Assistant Secretary means the Assistant Secretary 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.
(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 (LEA) as defined by
section 1001(f) of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 3381), 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 Secretary.
(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 Secretary 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.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
[45 FR 30955, May 9, 1980; 45 FR 37426, June 3, 1980]
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Sec.
106.3 Remedial and affirmative action and self-evaluation.
(a) Remedial action. If the Assistant Secretary 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 Assistant Secretary 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 Assistant Secretary upon request,
a description of any modifications made pursuant to paragraph (c)(ii) of this section and
of any remedial steps taken pursuant to paragraph (c)(iii) of this section.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
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Sec. 106.4 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 Assistant Secretary, 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 Assistant Secretary 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. 106.3(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 Assistant
Secretary 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.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
[45 FR 30955, May 9, 1980, as amended at 45 FR 86298, Dec. 30, 1980]
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Sec. 106.5 Transfers of property.
If a recipient sells or otherwise transfers property financed in whole or in part with
Federal financial assistance 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.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
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Sec. 106.6 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 704 and 855 of the Public Health
Service Act (42 U.S.C. 292d 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.
(Authority: 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.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
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Sec. 106.7 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.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
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Sec.
106.8 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 prompt and equitable resolution of student and employee
complaints alleging any action which would be prohibited by this part.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
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Sec. 106.9 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 it is required by title IX
and this part not to discriminate in such a manner. Such notification shall contain such
information, and be made in such manner, as the Assistant Secretary 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. 106.8, or to the Assistant Secretary.
(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.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
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Subpart B--Coverage
Sec. 106.11 Application.
Except as provided in this subpart, this part 106 applies to every recipient and to
each education program or activity operated by such recipient which receives or benefits
from Federal financial assistance.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
[45 FR 86298, Dec. 30, 1980]
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Sec.
106.12 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 Assistant
Secretary 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.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
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Sec.
106.13 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.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
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Sec.
106.14 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 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.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682; sec. 3(a) of P.L. 93-568, 88 Stat. 1862 amending Sec. 901)
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Sec. 106.15 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.
106.16 and 106.17, 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.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
[45 FR 30955, May 9, 1980, as amended at 45 FR 86298, Dec. 30, 1980]
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Sec.
106.16 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
Secretary as described in Sec. 106.17, which plan provides for the elimination of such
discrimination by the earliest practicable date but in no event later than June 23, 1979.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
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Sec. 106.17 Transition plans.
(a) Submission of plans. An institution to which Sec. 106.16 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 Secretary 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 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. 106.16
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. 106.16 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.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
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Subpart
C--Discrimination on the Basis of Sex in Admission and Recruitment Prohibited
Sec. 106.21 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. 106.16 and 106.17.
(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 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.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
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Sec. 106.22 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 only 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.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
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Sec. 106.23 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. 106.3(a), and may choose to undertake such efforts as affirmative action
pursuant to Sec. 106.3(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.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
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Subpart
D--Discrimination on the Basis of Sex in Education Programs and Activities Prohibited
Sec. 106.31 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 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 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) Apply any rule concerning the domicile or residence of a student or applicant,
including eligibility for in-state fees and tuition;
(6) 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;
(7) 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, fellowships, 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.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
[45 FR 30955, May 9, 1980, as amended at 47 FR 32527, July 28, 1982]
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Sec. 106.32 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.
(Authority: Secs. 901, 902, 907, Education Amendments of 1972, 86 Stat. 373,
374, 375; 20 U.S.C. 1681, 1682, 1686)
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Sec. 106.33 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.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374)
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Sec. 106.34 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
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.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
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Sec. 106.35 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 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.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
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Sec.
106.36 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 sex in counseling or appraisal materials or by
counselors.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
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Sec. 106.37 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. 106.41.
(Authority: 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)
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Sec. 106.38 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.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
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Sec. 106.39
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 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.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
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Sec. 106.40 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 recipient 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.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
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Sec. 106.41 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 or 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 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 Assistant Secretary 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.
(Authority: 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)
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Sec. 106.42 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.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
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Subpart
E--Discrimination on the Basis of Sex in Employment in Education Programs and Activities
Prohibited
Sec. 106.51 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.
(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.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
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Sec. 106.52 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.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
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Sec. 106.53 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.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
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Sec. 106.54 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.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
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Sec. 106.55 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 for the positions in question as set forth in Sec. 106.61.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
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Sec. 106.56 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. 106.54.
(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.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
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Sec. 106.57 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.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
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Sec.
106.58 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.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
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Sec. 106.59 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.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
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Sec. 106.60 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.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
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Sec.
106.61 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.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682
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Subpart F--Procedures
[Interim]
Sec. 106.71 Procedures.
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 34
CFR 100.6-100.11 and 34 CFR, part 101.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682)
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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]; 106.34
Access to Schools Operated by LEA's, [44]; 106.35
Admissions, [5, 6, 30]; 106.15, 106.21
Affirmative and remedial action, [16, 17, 24]; 106.3(a); (b)
Administratively separate units, [30]; 106.15(b) 106.2(o)
Educational Institutions, [30], 106.15(d), 106.2(n)
General, 106.21(a), 106.2(p),
Prohibitions relating to marital and parental status, [32, 36]; 106.21(c)
Professional schools, [30], 106.2(m)
Public institutions of undergraduate higher education, 106.15(e)
Recruitment, [34, 35]; 106.23
Specific prohibitions, 106.21(b)
Tests, [31]; 106.21(b) (2)
Preference in admission, [35]; 106.22
Advertising, 106.59
Affirmative Action, see ``Remedial and Affirmative Actions''
Assistance to ``outside'' discriminatory organizations, [40, 53]; 106.31(b) (7), (c)
Assurances, [18]; 106.4
Duration of obligation, 106.4(b)
Form, 106.4(c)
Athletics, [69 to 78]; 106.41
Adjustment period, [78]; 106.41(d)
Contact sport defined, 106.41(d)
Equal opportunity, [76, 77]; 106.41(d)
Determining factors, 106.41(c) (i) to (x)
Equipment, 106.41(c)
Expenditures, 106.41(c)
Facilities, 106.41(c)
Travel, 106.41(c)
Scholarships, [64, 65]; 106.37(d)
General, [69, 70, 71, 72, 73, 74, 75]; 106.41(a)
Separate teams, [75]; 106.41(b)
B
BFOQ, [96]; 106.61
C
Comparable facilities
Housing, [42, 54]; 106.32
Other, 106.33, 106.35(b)
Compensation, [84, 87, 92]; 106.54
Counseling
Disproportionate classes, [45, 59]; 106.36(c)
General, [45, 59]; 106.36(a)
Materials, [45, 59]; 106.36(b)
Course Offerings
Adjustment period, [55]; 106.34(a) (i)
General, [7, 43]; 106.34
Music classes, [43]; 106.34(f)
Physical education, [43, 56, 58];
Sex education, [43, 57]; 106.34(e)
Coverage, [5]; 106.11 to 106.17
Exemptions
Curricular materials, [52]; 106.42(a)
D
Definitions, [14, 15]; 106.2 (a) to (r)
Designation of responsible employee, [20, 22]; 106.8(a), (b)
Dissemination of policy, [21]; 106.9
Distribution, 106.9(c)
Notification of policy, [21]; 106.9(a)
Publications, 106.9(b)
Dress codes 106.31(b) (4)
E
Education Institutions
Controlled by religious organizations, 106.12
Application, [28, 29]; 106.12(a)
Exemption, [26]; 106.12(b)
Education Program and Activities
Benefiting from Federal financial assistance, [10, 11]; 106.11
General, [10, 11, 53]; 106.31(a)
Programs not operated by recipient, [41, 54]; 106.31(c)
Specific prohibitions, [38, 39, 40, 53]; 106.31 (b)
Effective Date, [3]
Employee responsible for Title IX, see ``Designation of Responsible Employee''
Employment
Advertising, 106.59
Application, 106.51(b)
Compensation, [84, 92]; 106.54
Employment criteria, 106.52
Fringe benefits, [88, 89]; 106.56
General, [81, 82, 87]; 106.51
Job Classification and Structure, 106.55
Marital and Parental Status, 106.57
Pregnancy, [85, 93]; 106.57(b)
Pregnancy as Temporary Disability, [85, 93]; 106.57(c)
Pregnancy Leave, [85, 93, 94]; 106.57(d)
Pre-Employment Inquiry
Recruitment, [83, 90, 91, 95]
Sex as a BFOQ, [96]; 106.61
Student Employment, [66]; 106.38
Tenure, 106.51(b) (2)
Exemptions, [5, 27, 28, 29, 30, 53]; 106.12(b), 106.13, 106.14, 106.15(a), 106.15(d),
106.16
F
Federal Financial Assistance, 106.2(a)
Financial Assistance to students, [46, 60, 61]; 106.37
Athletic Scholarships, [46, 64, 65]; 106.37(d)
Foreign institutions, study at [63]; 106.31(c)
General, 106.37
Non-need scholarships, [62]; 106.37(b)
Pooling of sex-restrictive, [46, 61, 62]; 106.37(b)
Sex-restrictive assistance through foreign or domestic wills [46, 61, 62]; 106.37(b)
Foreign Scholarships, see ``Financial assistance'' 106.37 and ``Assistance to `outside'
discriminatory organizations'', 106.31(c)
Fraternities/Sororities
Social, [53, 27, 28]; 106.14(a)
Business/professional, [40, 53, 27, 28]; 106.31 (b) (7)
Honor societies, [40, 53]; 106.31(b) (7)
Fringe benefits, [67, 88, 89]; 106.56, 106.39
Part-time employees, [89]
G
Grievance Procedure, see ``Designation of responsible employee'', 106.8(a), (b)
H
Health and Insurance Benefits and Services, [67, 88, 93]; 106.39, 106.56
Honor societies, [40, 53]; 106.31(b) (7)
Housing, 106.32
Generally, [42]; 106.32(b)
Provided by recipient, 106.32(b)
Other housing, [54]; 106.32(c)
J
Job Classification and Structure, 106.55
L
LEA's, [44]; 106.35
M
Marital and Parental Status
Employment
General, [85, 93, 94]; 106.57
Pregnancy, [85, 93, 94]; 106.57(b)
Pregnancy as a temporary disability, [85, 93, 94]; 106.57(c)
Pregnancy leave, [85, 93, 94]; 106.57(d)
Students
General, [49]; 106.40(a), (b)
Pregnancy and related conditions, [50]; 106.40(b) (1) (2) (3) (4) (5)
Class participation, [50]; 106.40(b) (1)
Physician certification, [50]; 106.40(b) (2)
Special classes, [50]; 106.40(b) (3)
Temporary leave, [50]; 106.40(b) (4), (5)
Membership Practices of Social fraternities and sororities, [27, 28, 53]; 106.14(a)
Voluntary youth service organizations, [27, 28, 53]; 106.14(c)
YMCA, YWCA and others, [27, 28, 53]; 106.14(b)
Military and Merchant Marine Educational Institutions, [29]; 106.13
P
Pooling, see ``Financial Assistance'', 106.37
Pre-employment Inquiries
Marital status, [86, 95]; 106.60(a)
Sex, 106.60(b)
Preference in Admissions, [35]; 106.22
See also ``Remedial and Affirmative Action''
Pregnancy, Employment
General, [85, 93, 94]; 106.57
Pregnancy, [85, 93, 94]; 106.57(b)
Pregnancy as temporary disability, [85, 93, 94]; 106.57(c)
Pregnancy leave, [85, 93, 94]; 106.57(d)
Students
General, [49, 50]; 106.40 (a) and (b)
Pregnancy and related conditions; [50]; 106.40(b) (1) to (5)
Class Participation, [50, 55, 58]; 106.40(b) (1)
Physical certification, [50]; 106.40(b) (2)
Special class, [50]; 106.40 (b) (3)
Temporary leave, [50]; 106.40(b) (4), (5)
Private Undergraduate Professional Schools, [30]; 106.15(d)
Purpose of Regulation, [13]; 106.1
R
Real Property, 106.2(g)
Recruitment
Employment
Nondiscrimination, [83, 91]; 106.53(a)
Patterns, 106.53(b)
Student
Nondiscrimination, [34, 35]; 106.23(a)
Recruitment at certain institutions, 106.23 (b)
Religious Organizations
Application, [29, 28]; 106.12(a)
Exemption, [26]; 106.12(b)
Remedial and Affirmative Actions, [16, 17, 24]; 106.3
S
Scholarships, see ``Financial Assistance'', 106.37
Self-evaluation, [16, 22]; 106.3(c), (d)
Surplus Property (see Transfer of Property 106.5)
Duration of obligation 106.4(b)
Real Property 106.4(b) (1)
T
Textbooks and curricular materials, [52, 79, 80]; 106.42
Termination of funds, [10, 11]
Transfer of property, 106.5
Transition Plans
Content of plans, 106.17(b)
Different from Adjustment period, [78]; 106.41(d)
Submission of plans, 106.17(a)
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Appendix
A--Guidelines for Eliminating Discrimination and Denial of Services on the Basis of Race,
Color, National Origin, Sex, and Handicap in Vocational Education Programs
Editorial Note: For the text of these guidelines, see 34 CFR part 100, appendix B.
[44 FR 17168, Mar. 21, 1979]
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