[Code of Federal Regulations]
[Title 13, Volume 1]
[Revised as of January 1, 2006]
From the U.S. Government Printing Office via GPO Access
[CITE: 13CFR113]
[Page 151-176]
TITLE 13--BUSINESS CREDIT AND ASSISTANCE
CHAPTER I--SMALL BUSINESS ADMINISTRATION
PART 113_NONDISCRIMINATION IN FINANCIAL ASSISTANCE PROGRAMS OF
SBA_EFFECTUATION OF POLICIES OF FEDERAL GOVERNMENT AND SBA ADMINISTRATOR
Subpart A_General Provisions
Sec.
113.1 Purpose.
113.2 Definitions.
113.3 Discrimination prohibited.
113.3-1 Consideration of race, color, religion, sex, marital status,
handicap, or national origin.
113.3-2 Accommodations to religious observance and practice.
113.3-3 Structural accommodations for handicapped clients.
113.4 Assurances required.
113.5 Compliance information.
113.6 Conduct of investigations.
113.7 Procedure for effecting compliance.
113.8 Effect on other regulations, forms and instructions.
Appendix A to Subpart A of Part 113
Subpart B_Nondiscrimination on the Basis of Sex in Education Programs or
Activities Receiving Federal Financial Assistance
Introduction
113.100 Purpose and effective date.
113.105 Definitions.
113.110 Remedial and affirmative action and self-evaluation.
113.115 Assurance required.
113.120 Transfers of property.
113.125 Effect of other requirements.
113.130 Effect of employment opportunities.
113.135 Designation of responsible employee and adoption of grievance
procedures.
113.140 Dissemination of policy.
Coverage
113.200 Application.
113.205 Educational institutions and other entities controlled by
religious organizations.
113.210 Military and merchant marine educational institutions.
113.215 Membership practices of certain organizations.
113.220 Admissions.
113.225 Educational institutions eligible to submit transition plans.
113.230 Transition plans.
113.235 Statutory amendments.
Discrimination on the Basis of Sex in Admission and Recruitment
Prohibited
113.300 Admission.
113.305 Preference in admission.
113.310 Recruitment.
Discrimination on the Basis of Sex in Education Programs or Activities
Prohibited
113.400 Education programs or activities.
113.405 Housing.
113.410 Comparable facilities.
113.415 Access to course offerings.
113.420 Access to schools operated by LEAs.
113.425 Counseling and use of appraisal and counseling materials.
113.430 Financial assistance.
113.435 Employment assistance to students.
113.440 Health and insurance benefits and services.
113.445 Marital or parental status.
113.450 Athletics.
113.455 Textbooks and curricular material.
Discrimination on the Basis of Sex in Employment in Education Programs
or Activities Prohibited
113.500 Employment.
113.505 Employment criteria.
113.510 Recruitment.
113.515 Compensation.
113.520 Job classification and structure.
113.525 Fringe benefits.
113.530 Marital or parental status.
113.535 Effect of state or local law or other requirements.
113.540 Advertising.
113.545 Pre-employment inquiries.
113.550 Sex as a bona fide occupational qualification.
[[Page 152]]
Procedures
113.600 Notice of covered programs.
113.605 Enforcement procedures.
Authority: 15 U.S.C. 633, 634, 687, 1691; 20 U.S.C. 1681, 1682,
1683, 1685, 1686, 1687, 1688; 29 U.S.C. 794; Sec. 5, Pub. L. 85-536, 72
Stat. 385, as amended; Sec. 308, Pub. L. 85-699, 72 Stat. 694, as
amended.
Source: 44 FR 20068, Apr. 4, 1979, unless otherwise noted.
Subpart A_General Provisions
Sec. 113.1 Purpose.
(a) Part 112 of this chapter, issued pursuant to Title VI of the
Civil Rights Act of 1964, prohibits discrimination on the basis of race,
color, or national origin by some recipients of financial assistance
from SBA. The purpose of this part is to reflect to the fullest extent
possible the nondiscrimination policies of the Federal Government as
expressed in the several statutes, Executive Orders, and messages of the
President dealing with civil rights and equality of opportunity, and in
the previous determination of the Administrator of the Small Business
Administration that discrimination based on race, color, religion, sex,
marital status, handicap or national origin shall be prohibited, to the
extent that it is not prohibited by part 112 of this chapter, to all
recipients of financial assistance from SBA.
(b) In accordance with Pub. L. 94-239, 15 U.S.C. 1691, cited as the
Equal Credit Act Amendments of 1976, it is unlawful for any recipient
creditor to discriminate against any applicant, with respect to any
aspect of a credit transaction because of race, color, religion,
national origin, sex, marital status, age: (Provided, the applicant has
the capacity to contract), because all or part of the applicant's income
derives from any public assistance program, or because the applicant has
in good faith exercised any right under the Consumer Credit Protection
Act.
(c) It is the intention of the Administrator that the prohibitions
in this part supplement those in part 112 of this chapter, that the two
parts be read in pari materia, and that the procedures established
herein be harmonized to the maximum extent feasible with those
established in part 112 of this chapter.
Sec. 113.2 Definitions.
As used in this part:
(a) The term Federal financial assistance includes (1) grants and
loans of Federal funds, (2) the grant or donation of Federal property
and interests in property, (3) the detail of Federal personnel, (4) the
sale and lease of, and the permission to use (on other than a casual or
transient basis), Federal property or any interest in such property
without consideration, or at a nominal consideration, or at a
consideration which is reduced for the purpose of assisting the
recipient, or in recognition of the public interest to be served by such
sale or lease to the recipient, and (5) any Federal agreement,
arrangement, or other contract which has as one of its purposes the
provision of assistance.
(b) The terms applicant and recipient mean, respectively, one who
applies for and one who receives any of the financial assistance under
any of the statutes referred to in paragraph (a) of this section. The
term recipient also shall be deemed to include subrecipients of SBA
financial assistance, i.e., concerns which secondarily receive financial
assistance from the primary recipients of such financial assistance. For
the purposes of this part, a paragraph (b) lender (13 CFR 120.4(b))
shall be deemed a recipient of financial assistance.
(c) The term religion includes all aspects of religious observance
and practice, as well as belief.
(d) The term qualified handicapped person means (1) with respect to
employment, a handicapped person who, with reasonable accommodation, can
perform the essential functions of the job in question and (2) with
respect to services, a handicapped person who meets the essential
eligibility requirements for the receipt of such services.
(e) The term handicapped person, as defined by the guideline set
forth by the Department of Health, Education, and Welfare in Sec. 85.31
of title 45 of the CFR (43 FR 2137, dated January 13, 1978), means any
person who has a physical or mental impairment that substantially limits
one or more major life activities, has a record of such an
[[Page 153]]
impairment, or is regarded as having such an impairment.
(f) As used in paragraph (e) of this section, the phrase:
(1) Physical or mental impairment means (i) any physiological
disorder or condition, cosmetic disfigurement, or anatomical loss
affecting one or more of the following body systems: Neurological;
musculoskeletal; special sense organs; respiratory, including speech
organs; cardiovascular; reproductive; digestive; genitourinary; hemic
and lymphatic; skin; and endocrine; or (ii) any mental or psychological
disorder, such as mental retardation, organic brain syndrome, emotional
or mental illness, and specific learning disabilities. The term physical
or mental impairment includes, but is not limited to, such diseases and
conditions as orthopedic, visual, speech, and hearing impairments,
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis,
cancer, heart disease, diabetes, mental retardation, emotional illness,
drug addiction and alcoholism.
(2) Major life activities means functions such as caring for one's
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(3) Has a record of such an impairment means has a history of, or
has been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(4) Is regarded as having an impairment means (i) has a physical or
mental impairment that does not substantially limit major life
activities but is treated by a recipient as constituting such a
limitation; (ii) has a physical or mental impairment that substantially
limits major life activities only as a result of the attitudes of others
toward such impairment; or (iii) has none of the impairments defined in
paragraph (f)(1) of this section but is treated by a recipient as having
such an impairment.
(g) The term reasonable accommodation as used in these Regulations
may include: (1) making facilities used by employees readily accessible
to and usable by handicapped persons; and (2) job restructuring, part-
time or modified work schedules, acquisition or modification of
equipment or devices, the provision of readers or interpreters, and
other similar actions.
(h) The term facility means all or any portion of buildings,
structures, equipment, roads, walks, parking lots, or other real or
personal property.
[44 FR 20068, Apr. 4, 1979, as amended at 48 FR 14891, Apr. 6, 1983]
Sec. 113.3 Discrimination prohibited.
To the extent not covered or prohibited by part 112 of this chapter,
recipients of financial assistance may not:
(a) Discriminate with regard to goods, services, or accommodations
offered or provided by the aided business or other enterprise, whether
or not operated for profit, because of race, color, religion, sex,
handicap, or national origin of a person, or fail or refuse to accept a
person on a nonseg regated basis as a patient, student, visitor, guest,
customer, passenger, or patron.
(b) With regard to employment practices within the aided business or
other enterprise, whether or not operated for profit; fail or refuse,
because of race, color, religion, sex or national origin of a person, to
seek or retain the person's services, or to provide the person with
opportunities for advancement or promotion, or accord an employee the
rank and rate of compensation, including fringe benefits, merited by the
employee's services and abilities.
(c) With regard to employment practices within the aided business or
other enterprise, whether or not operated for profit; discriminate
against a qualified handicapped person; or because of handicap, fail or
refuse to seek or retain the person's services or to provide the person
with opportunities for advancement or promotion, or accord an employee
the rank and rate of compensation, including fringe benefits, merited by
the employee's services and abilities. All employment decisions shall be
made in a manner which ensures that discrimination on the basis of
handicap does not occur. Such decisions may not limit, segregate, or
classify job applicants or employees in any way that adversely affects
the opportunities or status of qualified handicapped individuals.
(d) Participate in a contractual or other relationship that has the
effect
[[Page 154]]
of subjecting job applicants or employees to discrimination prohibited
by this part. The relationships referred to in this paragraph include
those with employment and referral agencies, labor unions, organizations
providing or administering fringe benefits to employees of the
recipient, and organizations providing training and apprenticeship
programs. Activities covered by this part are as follows:
(1) Recruitment, advertising, and the processing of applications for
employment;
(2) Hiring, upgrading, promotion, award of tenure, demotion,
transfer, layoff, termination, right of return from layoff, and
rehiring;
(3) Rates of pay or any other form of compensation and changes in
compensation;
(4) Job assignments, job classifications, organizational structures,
position descriptions, lines of progression, and seniority lists;
(5) Leaves of absence, sick leave, or any other leave;
(6) Fringe benefits available by virtue of employment, whether or
not administered by the recipient;
(7) Selection and financial support for training, including
apprenticeship, professional meetings, conferences, and other related
activities, and selection for leaves of absence to pursue training;
(8) Employer sponsored activities, including social or recreational
programs; and
(9) Any other term, condition, or privilege of employment.
(e) Use employment tests or criteria that discriminate on the basis
of race, color, religion, sex, marital status, handicap, or national
origin. Employment tests which are used for all other job applicants
shall be adapted in an appropriate mode for use by persons who have
handicaps that impair sensory, manual, or speaking skills.
(f) Conduct a preemployment medical examination, unless required of
all job applicants, and subsequent to a conditional offer of employment.
The results of all such medical examinations shall be kept confidential.
(g) Make a preemployment inquiry as to whether a job applicant is a
handicapped person or as to the nature or severity of a handicap: EXCEPT
when a recipient is taking remedial action to overcome the effects of
conditions which resulted in past discrimination, or when a recipient is
taking affirmative action pursuant to section 503 of the Rehabilitation
Act of 1973, as amended.
(1) Such preemployment inquiry may only be made after the job
applicant has been informed that such disclosure is for the purposes set
forth in paragraph (g) of this section; that the disclosure is voluntary
and will be kept confidential; and that refusal of the job applicant to
provide such information will not subject the applicant to any adverse
action.
(2) Information elicited from qualified handicapped job applicants
concerning their medical history or condition shall be kept confidential
EXCEPT that:
(i) Supervisors and managers may be informed about restrictions on
or accommodations to be made for the qualified handicapped individual;
(ii) First aid and safety personnel may be informed, where
appropriate, of the need for possible emergency treatment; and
(iii) Compliance officials shall be given relevant information, if
requested.
(h) Discriminate on the basis of race, color, religion, handicap or
national origin in the use of toilets or any facilities for rest or
comfort. Discriminate on the basis of race, color, religion, sex,
handicap or national origin in the use of cafeterias, recreational
programs or other programs sponsored by the applicant or recipient.
(i) With regard to all recipients offering credit, such as Small
Business Investment Companies and Community Development Companies,
discriminate against debtors on the basis of race, color, religion, sex,
marital status, handicap, or national origin.
(j) With regard to the granting of credit by all recipient
creditors, discriminate against any credit applicant, with respect to
any aspect of a credit
[[Page 155]]
transaction because of race, color, religion, national origin, sex,
marital status, handicap, age (provided the applicant has the capacity
to contract), because all or part of the applicant's income derives from
any public assistance program, or because the applicant has in good
faith exercised any right under the Consumer Credit Protection Act.
Sec. 113.3-1 Consideration of race, color, religion, sex, marital
status, handicap, or national origin.
(a) This regulation does not prohibit the consideration of race,
color, religion, sex, marital status, handicap, or national origin if
the purpose and effect are to remove or overcome the consequences of
practices or impediments which have restricted the availability of, or
participation in, the program or activity receiving Federal financial
assistance, on the grounds of race, color, religion, sex, marital
status, handicap, or national origin. Where previous discriminatory
practices or usage tends, on the grounds of race, color, religion, sex,
marital status, handicap, or national origin, to exclude individuals
from participation in, to deny them the benefits of, or to subject them
to discrimination under any program or activity to which this regulation
applies, the applicant or recipient has an obligation to take reasonable
action to remove or overcome the consequences of the prior
discriminatory practice or usage, and to accomplish the purposes of this
regulation. All programs and activities shall be administered in the
most integrated setting possible.
(b) Nothing in this part shall prohibit the restriction of certain
jobs to members of one sex if a bona fide occupational qualification can
be demonstrated by the applicant or recipient. Custom or tradition is
not a bona fide occupational qualification.
(c) Recipients shall take steps to ensure that communications with
job applicants and employees who have vision and/or hearing disabilities
are available in appropriate modes.
(d) Recipients shall make reasonable accommodation to the known
physical or mental limitations of an otherwise qualified handicapped job
applicant or employee UNLESS the recipient can demonstrate that the
accommodation would impose an undue hardship on the operation of the
business. Factors to be considered in determining whether an
accommodation would impose an undue hardship on the operation of a
recipient's business include:
(1) The overall size of the recipient's business with respect to
number of employees, number and type of facilities, size of budget, and
the financial condition of the business;
(2) The type of the recipient's operation, including the composition
and structure of the recipient's workforce; and
(3) The nature and cost of the accommodation needed.
(e) Such accommodation may include making facilities used by
employees readily accessible to and usable by handicapped persons, job
restructuring, part-time or modified work schedules, acquisition or
modification of equipment or devices, the provision of readers or
interpreters, and other similar actions.
(f) The final decision, when making a review or investigation of a
complaint, as to whether an accommodation would impose an undue hardship
on the operation of a recipient business will be made by the compliance
officials of the Small Business Administration.
(g) Recipients shall administer programs and activities in the most
integrated setting appropriate to the needs of qualified handicapped
persons, and shall not participate in a contractual relationship that
has the effect of subjecting qualified handicapped job applicants or
employees to discrimination prohibited by this part. The relationships
referred to in this paragraph include those with referral agencies,
labor unions, organizations providing or administering fringe benefits
to employees of the recipient, and organizations providing training and
apprenticeship programs.
(h) Nothing in this part shall apply to a religious corporation,
association, educational institution or society with respect to the
membership or the employment of individuals of a particular religion to
perform work connected
[[Page 156]]
with the carrying on by such corporation, association, educational
institution or society of its religious activities.
Sec. 113.3-2 Accommodations to religious observance and practice.
A recipient of financial assistance must accommodate to the
religious observances and practices of an employee or prospective
employee unless the recipient demonstrates that it is unable to
reasonably accommodate to an employee's or prospective employee's
religious observance or practice without undue hardship on the conduct
of the employer's business. As part of this obligation, recipient must
make reasonable accommodations to the religious observances and
practices of an employee or prospective employee who regularly observes
Friday evening and Saturday, or some other day of the week, as Sabbath
and/or who observes certain religious holidays during the year and who
is conscientiously opposed to performing work or engaging in similar
activity on such days, when such accommodations can be made without
undue hardship on the conduct of the employer's business. In determining
the extent of a recipient's obligations under this section, at least the
following factors should be considered: (a) Business necessity, (b)
financial costs and expenses, and (c) resulting personnel problems.
Sec. 113.3-3 Structural accommodations for handicapped clients.
(a) Existing facilities. Recipients in preexisting structures shall
make their goods or services accessible to and usable by handicapped
clients. Where structural changes are necessary to make the recipient's
goods or services accessible, such changes shall be made as soon as
practicable, but in no event later than three years after the effective
date of this Regulation. A plan setting forth the steps necessary to
complete such structural changes shall be developed and submitted to
SBA. If practical, interested persons, including handicapped persons or
organizations representing handicapped persons, will be consulted.
(b) Design, construction, and alteration. New facilities shall be
designed and constructed to be readily accessible to and usable by
persons with handicaps. Alterations to existing facilities that affect
usability shall, to the maximum extent feasible, be designed and
constructed to be readily accessible to and usable by handicapped
persons.
(c) Conformance with Uniform Federal Accessibility Standards. (1)
Effective as of January 18, 1991, design, construction, or alteration of
buildings in conformance with sections 3-8 of the Uniform Federal
Accessibility Standards (UFAS) (appendix A to 41 CFR subpart 101-19.6)
shall be deemed to comply with the requirements of this section with
respect to those buildings. Departures from particular technical and
scoping requirements of UFAS by the use of other methods are permitted
where substantially equivalent or greater access to and usability of the
building is provided.
(2) For purposes of this section, section 4.1.6(1)(g) of UFAS shall
be interpreted to exempt from the requirements of UFAS only mechanical
rooms and other spaces that, because of their intended use, will not
require accessibility to the public or beneficiaries or result in the
employment or residence therein of persons with physical handicaps.
(3) This section does not require recipients to make building
alterations that have little likelihood of being accomplished without
removing or altering a load-bearing structural member.
[44 FR 20068, Apr. 4, 1979, as amended at 45 FR 81734, Dec. 12, 1980; 55
FR 52138, 52140, Dec. 19, 1990]
Sec. 113.4 Assurances required.
An application for financial assistance shall, as a condition to its
approval and the extension of such assistance, contain or be accompanied
by an assurance that the recipient will comply with this part. Such an
assurance shall contain provisions authorizing the acceleration of the
maturity of the recipient's financial obligations to SBA in the event of
a failure to comply, and provisions which give the United States a right
to seek judicial enforcement of the terms of the assurance. SBA shall
specify the form of the foregoing assurance for each program,
[[Page 157]]
and the extent to which like assurances will be required of contractors
and subcontractors, transferees, successors in interest, and other
participants in the program.
Sec. 113.5 Compliance information.
(a) Cooperation and assistance: SBA shall to the fullest extent
practicable seek the cooperation of applicants and recipients in
obtaining compliance with this part and shall provide assistance and
guidance to applicants and recipients to help them comply voluntarily
with this part. Recipients are expected to continually evaluate their
compliance status, with the assistance of interested persons, including
handicapped persons or organizations representing handicapped persons.
(b) Compliance reports: Each applicant or recipient shall keep such
records and submit to SBA timely, complete and accurate compliance
reports at such times, and in such form and containing such information,
as SBA may determine to be necessary to enable SBA to ascertain whether
the applicant or recipient has complied or is complying with this part.
In the case of a small business concern which receives financial
assistance from a development company or from a small business
investment company, such concern shall submit to the company such
information as may be necessary to enable the company to meet its
reporting requirements under this part.
(c) Access to sources of information: Each applicant or recipient
shall permit access by SBA during normal business hours to such of its
books, records, accounts and other sources of information, and its
facilities as may be pertinent to ascertain compliance with this part.
Where any information required of an applicant or recipient is in the
exclusive possession of any other agency, institution or person; and
such agency, institution or person shall fail or refuse to furnish this
information, the applicant or recipient shall so certify in its report
and shall set forth what efforts it has made to obtain this information.
(d) Information to the Public. Each recipient shall make available
to persons entitled under this part to protection against discrimination
by the recipient such information as SBA may find necessary to apprise
them of their rights to such protection.
(1) In some situations even though past discriminatory practices
have been abandoned, the consequences of such practices continue to
impede the full availability of equal opportunity. If the efforts
required of the applicant or recipient under Sec. 113.5(b) to provide
information as to the availability of equal opportunity, and the rights
of individuals under this regulation, have failed to overcome these
consequences, it will become necessary for such applicant or recipient
to take additional steps to make equal opportunity fully available to
racial, qualified handicapped, nationality groups and persons who
because of their sex were previously subjected to discrimination.
(2) Even though an applicant or recipient has never used
discriminatory policies, the opportunities in the business it operates
may not in fact be equally available to some racial, qualified
handicapped, or nationality groups. In such circumstances a recipient
may properly give special consideration to race, color, religion, sex,
marital status, qualified handicap or national origin to make the
opportunities more widely available to such groups.
Sec. 113.6 Conduct of investigations.
(a) Periodic compliance reviews. SBA shall from time to time review
the practices of recipients to determine whether they are complying with
this part.
(b) Complaints. Any person who believes that he, she or any class of
individuals has been subjected to discrimination prohibited by this part
may, personally or through a representative, file with SBA a written
complaint. A complaint must be filed not later than 180 days from the
date of the alleged discrimination, unless the time for filing is
extended by SBA.
(c) Investigations. SBA will make a prompt investigation whenever a
compliance review, report, complaint, or any other information indicates
a possible failure to comply with this part. The investigation should
include, where appropriate, a review of the pertinent practices and
policies of the applicant or recipient, the circumstances
[[Page 158]]
under which the possible noncompliance with this part occurred, and
other factors relevant to a determination as to whether the applicant or
recipient has failed to comply with this part.
(d) Resolution of matters. (1) If an investigation pursuant to
paragraph (c) of this section indicates a failure to comply with this
part, SBA will so inform the applicant or recipient and the matter will
be resolved by informal means whenever possible. If it has been
determined that the matter cannot be resolved by informal means, action
will be taken as provided for in Sec. 113.7.
(2) If an investigation does not warrant action pursuant to
paragraph (d)(1) of this section, SBA will so inform the applicant or
recipient and the complainant, if any, in writing.
(e) Intimidatory or retaliatory acts prohibited. No applicant or
recipient or other person shall intimidate, threaten, coerce, or
discriminate against any individual for the purpose of interfering with
any right or privilege secured by this part or because he has made a
complaint, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this part. The identity of
complainants shall be kept confidential except to the extent necessary
to carry out the purposes of this part, including the conduct of any
investigation, hearing, or judicial proceeding arising thereunder.
Sec. 113.7 Procedure for effecting compliance.
(a) General. (1) If there appears to be a failure or threatened
failure to comply with this part and if the noncompliance or threatened
noncompliance cannot be corrected by informal means, compliance with
this part may be effected by suspending, terminating, or refusing any
financial assistance approved but not yet disbursed to an applicant. In
the case of loans partially or fully disbursed, compliance with this
part may be effected by calling, canceling, terminating, accelerating
repayment, or suspending in whole or in part the financial assistance
provided. In addition compliance may be effected by any other means
authorized by law.
(2) Such other means may include but are not limited to (i) legal
action by SBA to enforce its rights, embodied in the assurances
described in Sec. 113.4; (ii) a reference to the Department of Justice
with a recommendation that appropriate proceedings be brought to enforce
any rights of the United States under any law of the United States; and
(iii) any applicable proceedings under State or local law.
(b) Noncompliance with Sec. 113.4. If an applicant fails or refuses
to furnish an assurance required under Sec. 113.4 or otherwise fails or
refuses to comply with a requirement imposed by or pursuant to that
section, Federal financial assistance may be refused in accordance with
the procedures of paragraph (c) of this section. SBA shall not be
required to provide assistance in such a case during the pendency of the
administrative proceedings under such paragraph except that SBA shall
continue assistance during the pendency of such proceedings where such
assistance is due and payable pursuant to an application therefor
approved prior to the effective date of this part. Such proceedings
shall be conducted in accordance with the provisions of part 134 of this
chapter by an Administrative Law Judge of the Office of Hearings and
Appeals, who shall issue an initial decision in the case. The
Admininstrator shall be the reviewing official for purposes of Sec.
134.228. The applicant's failure to file a timely motion in accordance
with Sec. Sec. 134.222 and 134.211, requesting that the matter be
scheduled for an oral hearing, shall constitute waiver of the right to
an oral hearing but shall not prevent the submission of written
information and argument for the record in accordance with the
provisions of part 134.
(c) Condition precedent. Under this part 113, no order suspending,
terminating, refusing, calling, canceling, or accelerating repayment of
financial assistance in whole or in part shall become effective until
(1) SBA has advised the applicant or recipient of his failure to comply
and has determined that compliance cannot be secured by voluntary means;
(2) there has been an express finding on the record after an opportunity
for an oral hearing, of a failure by the applicant or recipient to
[[Page 159]]
comply with a requirement imposed by or pursuant to this part; and (3)
the initial decision has become final pursuant to Sec. 134.227(b).
(d) Other means authorized by law. No action to effect compliance by
any other means authorized by law shall be taken until:
(1) SBA has determined that compliance cannot be secured by
voluntary means.
(2) The action has been approved by the Administrator or the
Administrator's designee.
(3) The applicant or recipient or other person has been notified of
its failure to comply and of the action to be taken to effect
compliance.
(4) The expiration of at least 10 days from the mailing of such
notice to the applicant or recipient or other person. During this period
of at least 10 days, additional efforts shall be made to persuade the
applicant or recipient or other person to comply with this part and to
take such corrective action as may be appropriate.
[44 FR 20068, Apr. 4, 1979, as amended at 49 FR 33629, Aug. 24, 1984; 61
FR 2691, Jan. 29, 1996]
Sec. 113.8 Effect on other regulations, forms and instructions.
(a) Effect on other regulations. All regulations, orders of like
directions heretofore issued by SBA which impose requirements designed
to prohibit any discrimination against individuals on the grounds of
race, color, religion, sex, handicap, marital status, age, or national
origin and which authorize the suspension or termination of a refusal to
grant to or to continue financial assistance to any applicant for or
recipient of such assistance for failure to comply with such
requirements, are hereby superseded to the extent that such
discrimination is prohibited by this part, except that nothing in this
part shall be deemed to relieve any person of any obligation assumed or
imposed under any such superseded regulation, order, instruction or like
direction prior to the effective date of this part.
(b) Forms and instructions. SBA shall issue and promptly make
available to interested persons forms and detailed instructions and
procedures for effectuating this part.
(c) Supervision and coordination. The Administrator may from time-
to-time assign to officials of SBA or to officials of other agencies of
the Government, with the consent of such agencies, responsibilities in
connection with the effectuation of the purposes of this part (other
than responsibility of first decisions as provided in Sec. 113.9)
including the achievement of effective coordination and maximum
uniformity within SBA and within the executive branch of the Government
in the application of this part and of comparable regulations issued by
other agencies of the Government to similar situations. Any action
taken, determination made, or requirement imposed by an official of
another department or agency acting pursuant to an assignment of
responsibility under this subsection shall have the same effect as
though such action had been taken by the Administrator of SBA.
[44 FR 20068, Apr. 4, 1979. Redesignated at 49 FR 33629, Aug. 24, 1984]
Appendix A to Subpart A of Part 113
------------------------------------------------------------------------
Name of program Authority
------------------------------------------------------------------------
Financial Programs
------------------------------------------------------------------------
Regular business loans.................... Small Business Act, sec.
7(a).
Handicapped assistance loans.............. Small Business Act, sec.
7(a)(10).
Small business energy loans............... Small Business Act, sec.
7(a)(12).
Small general contractors loans........... Small Business Act, sec.
7(a)(9).
Export revolving line of credit........... Small Business Act, sec.
7(a)(14).
Vietnam-era and Disabled Veterans Loan Pub. L. 97-72.
Program.
Debtor State development company loans Small Business Investment
(501) and their small business concerns. Act, Title V and Small
Business Act, sec.
7(a)(13).
Debtor State and local development company Small Business Investment
loans (502) and their small business Act, Title V and Small
concerns. Business Act, sec.
7(a)(13).
Debtor certified development companies Small Business Investment
(503) and their small business concerns. Act, Title V and Small
Business Act, sec.
7(a)(13).
Debtor small business investment companies Small Business Investment
and their small business concerns. Act, Title III.
Pollution Control......................... Small Business Investment
Act, Title IV, Part A.
Surety bond guarantees.................... Small Business Investment
Act, Title IV, Part B.
Lease guarantees (not funded) disaster Small Business Investment
loans. Act, Title IV.
[[Page 160]]
Physical.................................. Small Business Act, sec.
7(b)(1).
Economic injury (EIDL).................... Small Business Act, sec.
7(b)(2).
Federal action--economic injury........... Small Business Act, sec.
7(b)(3).
Currency fluctuation--economic injury..... Small Business Act, sec
7(b)(4).
------------------------------------------------------------------------
Nonfinancial Programs
------------------------------------------------------------------------
Women's business enterprise............... Executive Order 12138.
Small business innovation and research.... Small Business Act, sec. 9.
Procurement automated source system....... Small Business Act, sec. 8
and Pub. L. 96-302.
Business Development Program.............. Small Business Act, sec.
8(a) and Pub. L. 95-507, as
amended by Pub. L. 96-481.
Small Business Institute.................. Small Business Act, sec.
8(b)(1).
Certificate of competency................. Small Business Act, sec.
8(b)(7) and Pub. L. 95-89.
Subcontracting Assistance Program......... Small Business Act, sec.
8(d) and Pub. L. 95-507.
Technology Assistance Program............. Small Business Act, sec. 9.
Small business development centers........ Small Business Act, sec. 21
and Pub. L. 96-302.
International Trade Program............... Small Business Act, sec. 22
and Pub. L. 96-481.
Service Corps of Retired Executives and Small Business Act, secs.
Active Corps of Executives. 101 and 8(b)(1) and Pub. L.
95-510.
Veterans Affairs Programs................. Pub. L. 93-237.
Private sector initiatives................ Small Business Act, sec.
8(b)(1).
------------------------------------------------------------------------
[50 FR 1442, Jan. 11, 1985]
Subpart B_Nondiscrimination on the Basis of Sex in Education Programs or
Activities Receiving Federal Financial Assistance
Authority: 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688.
Source: 65 FR 52865, 52876, Aug. 30, 2000, unless otherwise noted.
Introduction
Sec. 113.100 Purpose and effective date.
The purpose of these Title IX regulations is to effectuate Title IX
of the Education Amendments of 1972, as amended (except sections 904 and
906 of those Amendments) (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687,
1688), 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 these Title IX regulations. The effective date of these Title
IX regulations shall be September 29, 2000.
Sec. 113.105 Definitions.
As used in these Title IX regulations, the term:
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.
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.
Applicant means one who submits an application, request, or plan
required to be approved by an official of the Federal agency that awards
Federal financial assistance, or by a recipient, as a condition to
becoming a recipient.
Designated agency official means Assistant Administrator for Equal
Employment and Civil Rights Compliance.
Educational institution means a local educational agency (LEA) as
defined by 20 U.S.C. 8801(18), a preschool, a private elementary or
secondary school, or an applicant or recipient that is an institution of
graduate higher education, an institution of undergraduate higher
education, an institution of professional education, or an institution
of vocational education, as defined in this section.
Federal financial assistance means any of the following, when
authorized or extended under a law administered by the Federal agency
that awards such assistance:
(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
[[Page 161]]
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 that has as one of
its purposes the provision of assistance to any education program or
activity, except a contract of insurance or guaranty.
Institution of graduate higher education means an institution that:
(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;
(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.
Institution of professional education means an institution (except
any institution of undergraduate higher education) that 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 of Education.
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 that certifies credentials or offers degrees,
but that may or may not offer academic study.
Institution of vocational education means a school or institution
(except an institution of professional or graduate or undergraduate
higher education) that 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 full-time study.
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 that operates an education program or
activity that receives such assistance, including any subunit,
successor, assignee, or transferee thereof.
Student means a person who has gained admission.
Title IX means Title IX of the Education Amendments of 1972, Public
Law 92-318, 86 Stat. 235, 373 (codified as amended at 20 U.S.C. 1681-
1688) (except sections 904 and 906 thereof), as amended by section 3 of
Public Law 93-568, 88 Stat. 1855, by section 412 of the Education
Amendments of 1976, Public Law 94-482, 90 Stat. 2234, and by Section 3
of Public Law 100-259, 102 Stat. 28, 28-29 (20 U.S.C. 1681, 1682, 1683,
1685, 1686, 1687, 1688).
Title IX regulations means the provisions set forth at Sec. Sec.
113.100 through 113.605.
Transition plan means a plan subject to the approval of the
Secretary of Education pursuant to section 901(a)(2) of the Education
Amendments of 1972,
[[Page 162]]
20 U.S.C. 1681(a)(2), under which an educational institution operates in
making the transition from being an educational institution that admits
only students of one sex to being one that admits students of both sexes
without discrimination.
Sec. 113.110 Remedial and affirmative action and self-evaluation.
(a) Remedial action. If the designated agency official 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 designated agency official 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 consistent with law to overcome
the effects of conditions that resulted in limited participation therein
by persons of a particular sex. Nothing in these Title IX regulations
shall be interpreted to alter any affirmative action obligations that a
recipient may have under Executive Order 11246, 3 CFR, 1964-1965 Comp.,
p. 339; as amended by Executive Order 11375, 3 CFR, 1966-1970 Comp., p.
684; as amended by Executive Order 11478, 3 CFR, 1966-1970 Comp., p.
803; as amended by Executive Order 12086, 3 CFR, 1978 Comp., p. 230; as
amended by Executive Order 12107, 3 CFR, 1978 Comp., p. 264.
(c) Self-evaluation. Each recipient education institution shall,
within one year of September 29, 2000:
(1) Evaluate, in terms of the requirements of these Title IX
regulations, 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 that do not or may
not meet the requirements of these Title IX regulations; and
(3) Take appropriate remedial steps to eliminate the effects of any
discrimination that 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 designated agency official upon
request, a description of any modifications made pursuant to paragraph
(c)(2) of this section and of any remedial steps taken pursuant to
paragraph (c)(3) of this section.
Sec. 113.115 Assurance required.
(a) General. Either at the application stage or the award stage,
Federal agencies must ensure that applications for Federal financial
assistance or awards of Federal financial assistance contain, be
accompanied by, or be covered by a specifically identified assurance
from the applicant or recipient, satisfactory to the designated agency
official, that each education program or activity operated by the
applicant or recipient and to which these Title IX regulations apply
will be operated in compliance with these Title IX regulations. An
assurance of compliance with these Title IX regulations shall not be
satisfactory to the designated agency official 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.
113.110(a) to eliminate existing discrimination on the basis of sex or
to eliminate the effects of past discrimination whether occurring prior
to or subsequent to the submission to the designated agency official 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
[[Page 163]]
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. (1) The assurances required by paragraph (a) of this
section, which may be included as part of a document that addresses
other assurances or obligations, shall include that the applicant or
recipient will comply with all applicable Federal statutes relating to
nondiscrimination. These include but are not limited to: Title IX of the
Education Amendments of 1972, as amended (20 U.S.C. 1681-1683, 1685-
1688).
(2) The designated agency official will specify the extent to which
such assurances will be required of the applicant's or recipient's
subgrantees, contractors, subcontractors, transferees, or successors in
interest.
Sec. 113.120 Transfers of property.
If a recipient sells or otherwise transfers property financed in
whole or in part with Federal financial assistance to a transferee that
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 Sec. Sec. 113.205 through 113.235(a).
Sec. 113.125 Effect of other requirements.
(a) Effect of other Federal provisions. The obligations imposed by
these Title IX regulations are independent of, and do not alter,
obligations not to discriminate on the basis of sex imposed by Executive
Order 11246, 3 CFR, 1964-1965 Comp., p. 339; as amended by Executive
Order 11375, 3 CFR, 1966-1970 Comp., p. 684; as amended by Executive
Order 11478, 3 CFR, 1966-1970 Comp., p. 803; as amended by Executive
Order 12087, 3 CFR, 1978 Comp., p. 230; as amended by Executive Order
12107, 3 CFR, 1978 Comp., p. 264; sections 704 and 855 of the Public
Health Service Act (42 U.S.C. 295m, 298b-2); Title VII of the Civil
Rights Act of 1964 (42 U.S.C. 2000e et seq.); the Equal Pay Act of 1963
(29 U.S.C. 206); and any other Act of Congress or Federal regulation.
(b) Effect of State or local law or other requirements. The
obligation to comply with these Title IX regulations is not obviated or
alleviated by any State or local law or other requirement that 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 these Title IX regulations is not obviated or
alleviated by any rule or regulation of any organization, club, athletic
or other league, or association that 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 that receives
Federal financial assistance.
Sec. 113.130 Effect of employment opportunities.
The obligation to comply with these Title IX regulations 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.
Sec. 113.135 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 these Title IX regulations,
including any investigation of any complaint communicated to such
recipient alleging its noncompliance with these Title IX regulations or
alleging any actions that would be prohibited by these Title IX
regulations. 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
[[Page 164]]
and equitable resolution of student and employee complaints alleging any
action that would be prohibited by these Title IX regulations.
Sec. 113.140 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 that it operates, and that it is required by
Title IX and these Title IX regulations not to discriminate in such a
manner. Such notification shall contain such information, and be made in
such manner, as the designated agency official finds necessary to
apprise such persons of the protections against discrimination assured
them by Title IX and these Title IX regulations, but shall state at
least that the requirement not to discriminate in education programs or
activities extends to employment therein, and to admission thereto
unless Sec. Sec. 113.300 through 113.310 do not apply to the recipient,
and that inquiries concerning the application of Title IX and these
Title IX regulations to such recipient may be referred to the employee
designated pursuant to Sec. 113.135, or to the designated agency
official.
(2) Each recipient shall make the initial notification required by
paragraph (a)(1) of this section within 90 days of September 29, 2000 or
of the date these Title IX regulations first apply to such recipient,
whichever comes later, which notification shall include publication in:
(i) Newspapers and magazines operated by such recipient or by
student, alumnae, or alumni groups for or in connection with such
recipient; and
(ii) 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 that 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 paragraph (b)(1) of this section that 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 these Title IX regulations.
(c) Distribution. Each recipient shall distribute without
discrimination on the basis of sex each publication described in
paragraph (b)(1) 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 shall
require such representatives to adhere to such policy.
Coverage
Sec. 113.200 Application.
Except as provided in Sec. Sec. 113.205 through 113.235(a), these
Title IX regulations apply to every recipient and to each education
program or activity operated by such recipient that receives Federal
financial assistance.
Sec. 113.205 Educational institutions and other entities controlled by
religious organizations.
(a) Exemption. These Title IX regulations do not apply to any
operation of an educational institution or other entity that is
controlled by a religious organization to the extent that application of
these Title IX regulations would not be consistent with the religious
tenets of such organization.
(b) Exemption claims. An educational institution or other entity
that wishes to claim the exemption set forth in paragraph (a) of this
section shall do so by submitting in writing to the designated agency
official a statement by the highest-ranking official of the institution,
identifying the provisions of these Title IX regulations that conflict
[[Page 165]]
with a specific tenet of the religious organization.
Sec. 113.210 Military and merchant marine educational institutions.
These Title IX regulations do 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.
Sec. 113.215 Membership practices of certain organizations.
(a) Social fraternities and sororities. These Title IX regulations
do not apply to the membership practices of social fraternities and
sororities that are exempt from taxation under section 501(a) of the
Internal Revenue Code of 1954, 26 U.S.C. 501(a), 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. These
Title IX regulations do not apply to the membership practices of the
Young Men's Christian Association (YMCA), the Young Women's Christian
Association (YWCA), the Girl Scouts, the Boy Scouts, and Camp Fire
Girls.
(c) Voluntary youth service organizations. These Title IX
regulations do not apply to the membership practices of a voluntary
youth service organization that is exempt from taxation under section
501(a) of the Internal Revenue Code of 1954, 26 U.S.C. 501(a), 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.
Sec. 113.220 Admissions.
(a) Admissions to educational institutions prior to June 24, 1973,
are not covered by these Title IX regulations.
(b) Administratively separate units. For the purposes only of this
section, Sec. Sec. 113.225 and 113.230, and Sec. Sec. 113.300 through
113.310, each administratively separate unit shall be deemed to be an
educational institution.
(c) Application of Sec. Sec. 113.300 through 113.310. Except as
provided in paragraphs (d) and (e) of this section, Sec. Sec. 113.300
through 113.310 apply to each recipient. A recipient to which Sec. Sec.
113.300 through 113.310 apply shall not discriminate on the basis of sex
in admission or recruitment in violation of Sec. Sec. 113.300 through
113.310.
(d) Educational institutions. Except as provided in paragraph (e) of
this section as to recipients that are educational institutions,
Sec. Sec. 113.300 through 113.310 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.
Sec. Sec. 113.300 through 113.310 do not apply to any public
institution of undergraduate higher education that traditionally and
continually from its establishment has had a policy of admitting
students of only one sex.
Sec. 113.225 Educational institutions eligible to submit transition
plans.
(a) Application. This section applies to each educational
institution to which Sec. Sec. 113.300 through 113.310 apply that:
(1) Admitted students of only one sex as regular students as of June
23, 1972; or
(2) Admitted students of only 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 Sec. Sec. 113.300 through
113.310.
Sec. 113.230 Transition plans.
(a) Submission of plans. An institution to which Sec. 113.225
applies and that 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 of
Education, a transition plan shall:
(1) State the name, address, and Federal Interagency Committee on
Education Code of the educational institution submitting such plan, the
administratively separate units to which the
[[Page 166]]
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. 113.225 applies shall result in treatment of applicants to or
students of such recipient in violation of Sec. Sec. 113.300 through
113.310 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. 113.225 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 that emphasize the
institution's commitment to enrolling students of the sex previously
excluded.
Sec. 113.235 Statutory amendments.
(a) This section, which applies to all provisions of these Title IX
regulations, addresses statutory amendments to Title IX.
(b) These Title IX regulations shall not apply to or preclude:
(1) Any program or activity of the American Legion undertaken in
connection with the organization or operation of any Boys State
conference, Boys Nation conference, Girls State conference, or Girls
Nation conference;
(2) Any program or activity of a secondary school or educational
institution specifically for:
(i) The promotion of any Boys State conference, Boys Nation
conference, Girls State conference, or Girls Nation conference; or
(ii) The selection of students to attend any such conference;
(3) Father-son or mother-daughter activities at an educational
institution or in an education program or activity, but if such
activities are provided for students of one sex, opportunities for
reasonably comparable activities shall be provided to students of the
other sex;
(4) Any scholarship or other financial assistance awarded by an
institution of higher education to an individual because such individual
has received such award in a single-sex pageant based upon a combination
of factors related to the individual's personal appearance, poise, and
talent. The pageant, however, must comply with other nondiscrimination
provisions of Federal law.
(c) Program or activity or program means:
(1) All of the operations of any entity described in paragraphs
(c)(1)(i) through (iv) of this section, any part of which is extended
Federal financial assistance:
(i)(A) A department, agency, special purpose district, or other
instrumentality of a State or of a local government; or
(B) The entity of such State or local government that distributes
such assistance and each such department or agency (and each other State
or local government entity) to which the assistance is extended, in the
case of assistance to a State or local government;
[[Page 167]]
(ii)(A) A college, university, or other postsecondary institution,
or a public system of higher education; or
(B) A local educational agency (as defined in section 8801 of title
20), system of vocational education, or other school system;
(iii)(A) An entire corporation, partnership, or other private
organization, or an entire sole proprietorship--
(1) If assistance is extended to such corporation, partnership,
private organization, or sole proprietorship as a whole; or
(2) Which is principally engaged in the business of providing
education, health care, housing, social services, or parks and
recreation; or
(B) The entire plant or other comparable, geographically separate
facility to which Federal financial assistance is extended, in the case
of any other corporation, partnership, private organization, or sole
proprietorship; or
(iv) Any other entity that is established by two or more of the
entities described in paragraphs (c)(1)(i), (ii), or (iii) of this
section.
(2)(i) Program or activity does not include any operation of an
entity that is controlled by a religious organization if the application
of 20 U.S.C. 1681 to such operation would not be consistent with the
religious tenets of such organization.
(ii) For example, all of the operations of a college, university, or
other postsecondary institution, including but not limited to
traditional educational operations, faculty and student housing, campus
shuttle bus service, campus restaurants, the bookstore, and other
commercial activities are part of a ``program or activity'' subject to
these Title IX regulations if the college, university, or other
institution receives Federal financial assistance.
(d)(1) Nothing in these Title IX regulations shall be construed to
require or prohibit any person, or public or private entity, to provide
or pay for any benefit or service, including the use of facilities,
related to an abortion. Medical procedures, benefits, services, and the
use of facilities, necessary to save the life of a pregnant woman or to
address complications related to an abortion are not subject to this
section.
(2) Nothing in this section shall be construed to permit a penalty
to be imposed on any person or individual because such person or
individual is seeking or has received any benefit or service related to
a legal abortion. Accordingly, subject to paragraph (d)(1) of this
section, no person shall be excluded from participation in, be denied
the benefits of, or be subjected to discrimination under any academic,
extracurricular, research, occupational training, employment, or other
educational program or activity operated by a recipient that receives
Federal financial assistance because such individual has sought or
received, or is seeking, a legal abortion, or any benefit or service
related to a legal abortion.
Discrimination on the Basis of Sex in Admission and Recruitment
Prohibited
Sec. 113.300 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 Sec. Sec. 113.300 through Sec. Sec. 113.310 apply,
except as provided in Sec. Sec. 113.225 and Sec. Sec. 113.230.
(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 Sec. Sec. 113.300 through 113.310
apply 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 that 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 that do not have such a
disproportionately adverse effect are shown to be unavailable.
[[Page 168]]
(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
Sec. Sec. 113.300 through 113.310 apply:
(1) Shall not apply any rule concerning the actual or potential
parental, family, or marital status of a student or applicant that
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 that so
discriminates or excludes;
(3) Subject to Sec. 113.235(d), 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 admission, 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 these Title IX
regulations.
Sec. 113.305 Preference in admission.
A recipient to which Sec. Sec. 113.300 through 113.310 apply shall
not give preference to applicants for admission, on the basis of
attendance at any educational institution or other school or entity that
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 Sec. Sec. 113.300 through 113.310.
Sec. 113.310 Recruitment.
(a) Nondiscriminatory recruitment. A recipient to which Sec. Sec.
113.300 through 113.310 apply 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. 113.110(a), and may choose to
undertake such efforts as affirmative action pursuant to Sec.
113.110(b).
(b) Recruitment at certain institutions. A recipient to which
Sec. Sec. 113.300 through 113.310 apply shall not recruit primarily or
exclusively at educational institutions, schools, or entities that 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
Sec. Sec. 113.300 through 113.310.
Discrimination on the Basis of Sex in Education Programs or Activities
Prohibited
Sec. 113.400 Education programs or activities.
(a) General. Except as provided elsewhere in these Title IX
regulations, 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 that receives Federal financial assistance. Sections
113.400 through 113.455 do not apply to actions of a recipient in
connection with admission of its students to an education program or
activity of a recipient to which Sec. Sec. 113.300 through 113.310 do
not apply, or an entity, not a recipient, to which Sec. Sec. 113.300
through 113.310 would not apply if the entity were a recipient.
(b) Specific prohibitions. Except as provided in Sec. Sec. 113.400
through 113.455, 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
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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 that
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, that are designed to provide
opportunities to study abroad, and that are awarded to students who are
already matriculating at or who are graduates of the recipient
institution; Provided, that a recipient educational institution that
administers or assists in the administration of such scholarships,
fellowships, or other awards that 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) Aids, benefits or services not provided by recipient. (1) This
paragraph (d) applies to any recipient that requires participation by
any applicant, student, or employee in any education program or activity
not operated wholly by such recipient, or that 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 that these Title IX regulations would prohibit such
recipient from taking; and
(ii) Shall not facilitate, require, permit, or consider such
participation if such action occurs.
Sec. 113.405 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 that provided by such recipient.
(2)(i) 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:
(A) Proportionate in quantity; and
(B) Comparable in quality and cost to the student.
(ii) A recipient may render such assistance to any agency,
organization, or person that provides all or part of such housing to
students of only one sex.
Sec. 113.410 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
[[Page 170]]
be comparable to such facilities provided for students of the other sex.
Sec. 113.415 Access to course offerings.
(a) 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.
(b)(1) 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 September 29, 2000. 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 September 29, 2000.
(2) 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.
(3) 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.
(4) 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 that do not have such
effect.
(5) Portions of classes in elementary and secondary schools, or
portions of education programs or activities, that deal exclusively with
human sexuality may be conducted in separate sessions for boys and
girls.
(6) Recipients may make requirements based on vocal range or quality
that may result in a chorus or choruses of one or predominantly one sex.
Sec. 113.420 Access to schools operated by LEAs.
A recipient that 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.
Sec. 113.425 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 that 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 that permit or require different treatment of students on
such basis unless such different materials cover the same occupations
and interest areas and the use of such different materials is shown to
be essential to eliminate sex bias. Recipients shall develop and use
internal procedures for ensuring that such materials do not discriminate
on the basis of sex. Where the use of a counseling test or other
instrument results in a substantially disproportionate number of members
of one sex in any particular course of study or classification, the
recipient shall take such action as is necessary to assure itself that
such disproportion is not the result of discrimination in the instrument
or its application.
(c) Disproportion in classes. Where a recipient finds that a
particular class contains a substantially disproportionate number of
individuals of one sex, the recipient shall take such action as is
necessary to assure itself that such disproportion is not the result of
discrimination on the basis of
[[Page 171]]
sex in counseling or appraisal materials or by counselors.
Sec. 113.430 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 amounts or types of such
assistance, limit eligibility for such assistance that 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 that provides assistance to any of such
recipient's students in a manner that discriminates on the basis of sex;
or
(3) Apply any rule or assist in application of any rule concerning
eligibility for such assistance that 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 that
require 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) A recipient may provide separate athletic scholarships or
grants-in-aid for members of each sex as part of separate athletic teams
for members of each sex to the extent consistent with this paragraph (c)
and Sec. 113.450.
Sec. 113.435 Employment assistance to students.
(a) Assistance by recipient in making available outside employment.
A recipient that 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 that discriminates on the basis of sex in its employment
practices.
(b) Employment of students by recipients. A recipient that employs
any of its students shall not do so in a manner that violates Sec. Sec.
113.500 through 113.550.
Sec. 113.440 Health and insurance benefits and services.
Subject to Sec. 113.235(d), 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 that would
violate Sec. Sec. 113.500 through 113.550 if it were provided to
employees of the recipient. This section shall not prohibit a recipient
from providing any benefit or service that may be used by a different
proportion of students of one sex than of the other, including family
planning services. However, any recipient that
[[Page 172]]
provides full coverage health service shall provide gynecological care.
Sec. 113.445 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 that 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 as 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 that 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 separate portion is
comparable to that offered to non-pregnant students.
(4) Subject to Sec. 113.235(d), 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 that 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 that 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 as 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 that she held when the leave began.
Sec. 113.450 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 these Title IX regulations, 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. (1) A recipient that 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 designated
agency official will consider, among other factors:
(i) Whether the selection of sports and levels of competition
effectively accommodate the interests and abilities of members of both
sexes;
(ii) The provision of equipment and supplies;
(iii) Scheduling of games and practice time;
(iv) Travel and per diem allowance;
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(v) Opportunity to receive coaching and academic tutoring;
(vi) Assignment and compensation of coaches and tutors;
(vii) Provision of locker rooms, practice, and competitive
facilities;
(viii) Provision of medical and training facilities and services;
(ix) Provision of housing and dining facilities and services;
(x) Publicity.
(2) For purposes of paragraph (c)(1) of this section, 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
designated agency official 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 that 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
September 29, 2000. A recipient that operates or sponsors
interscholastic, intercollegiate, club, or intramural athletics at the
secondary or postsecondary school level shall comply fully with this
section as expeditiously as possible but in no event later than three
years from September 29, 2000.
Sec. 113.455 Textbooks and curricular material.
Nothing in these Title IX regulations shall be interpreted as
requiring or prohibiting or abridging in any way the use of particular
textbooks or curricular materials.
Discrimination on the Basis of Sex in Employment in Education Programs
or Activities Prohibited
Sec. 113.500 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 that receives 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 that 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 Sec. Sec. 113.500
through 113.550, 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 that 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 these Title IX regulations.
(b) Application. The provisions of Sec. Sec. 113.500 through
113.550 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;
[[Page 174]]
(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. 113.505 Employment criteria.
A recipient shall not administer or operate any test or other
criterion for any employment opportunity that 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. 113.510 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 so discriminated in the past, 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 that 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 Sec. Sec. 113.500 through 113.550.
Sec. 113.515 Compensation.
A recipient shall not make or enforce any policy or practice that,
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 that are performed under similar working conditions.
Sec. 113.520 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 that 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. 113.550.
Sec. 113.525 Fringe benefits.
(a) ``Fringe benefits'' defined. For purposes of these Title IX
regulations, 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. 113.515.
(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 that does not provide for equal periodic benefits for members of
each sex and 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 that establishes different optional or compulsory
retirement ages based on sex or that otherwise discriminates in benefits
on the basis of sex.
[[Page 175]]
Sec. 113.530 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 that 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. Subject to Sec.
113.235(d), 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 that 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 that 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. 113.535 Effect of state or local law or other requirements.
(a) Prohibitory requirements. The obligation to comply with
Sec. Sec. 113.500 through 113.550 is not obviated or alleviated by the
existence of any State or local law or other requirement that imposes
prohibitions or limits upon employment of members of one sex that are
not imposed upon members of the other sex.
(b) Benefits. A recipient that 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. 113.540 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. 113.545 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 these Title IX
regulations.
Sec. 113.550 Sex as a bona fide occupational qualification.
A recipient may take action otherwise prohibited by
Sec. Sec. 113.500 through 113.550 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 that 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
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to employment in a locker room or toilet facility used only by members
of one sex.
Procedures
Sec. 113.600 Notice of covered programs.
Within 60 days of September 29, 2000, each Federal agency that
awards Federal financial assistance shall publish in the Federal
Register a notice of the programs covered by these Title IX regulations.
Each such Federal agency shall periodically republish the notice of
covered programs to reflect changes in covered programs. Copies of this
notice also shall be made available upon request to the Federal agency's
office that enforces Title IX.
Sec. 113.605 Enforcement procedures.
The investigative, compliance, and enforcement procedural provisions
of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) (``Title
VI'') are hereby adopted and applied to these Title IX regulations.
These procedures may be found at 13 CFR part 112.
[65 FR 52876, Aug. 30, 2000]