Code of Federal Regulations
Title 34, Volume 1, Parts 1 to 299
Revised as of July 1, 1997
From the U.S. Government Printing Office via GPO Access
[CITE: 34CFR106]
TITLE 34--EDUCATION
CHAPTER I--OFFICE FOR CIVIL RIGHTS, DEPARTMENT OF EDUCATION
PART 106--NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION
PROGRAMS AND ACTIVITIES RECEIVING OR BENEFITING FROM FEDERAL FINANCIAL
ASSISTANCE
Subpart A--Introduction
Sec.
106.1 Purpose and effective date.
106.2 Definitions.
106.3 Remedial and affirmative action and self-evaluation.
106.4 Assurance required.
106.5 Transfers of property.
106.6 Effect of other requirements.
106.7 Effect of employment opportunities.
106.8 Designation of responsible employee and adoption of grievance
procedures.
106.9 Dissemination of policy.
Subpart B--Coverage
106.11 Application.
[[Page 375]]
106.12 Educational institutions controlled by religious
organizations.
106.13 Military and merchant marine educational institutions.
106.14 Membership practices of certain organizations.
106.15 Admissions.
106.16 Educational institutions eligible to submit transition plans.
106.17 Transition plans.
Subpart C--Discrimination on the Basis of Sex in Admission and
Recruitment Prohibited
106.21 Admission.
106.22 Preference in admission.
106.23 Recruitment.
Subpart D--Discrimination on the Basis of Sex in Education Programs
and Activities Prohibited
106.31 Education programs and activities.
106.32 Housing.
106.33 Comparable facilities.
106.34 Access to course offerings.
106.35 Access to schools operated by LEAs.
106.36 Counseling and use of appraisal and counseling materials.
106.37 Financial assistance.
106.38 Employment assistance to students.
106.39 Health and insurance benefits and services.
106.40 Marital or parental status.
106.41 Athletics.
106.42 Textbooks and curricular material.
Subpart E--Discrimination on the Basis of Sex in Employment in
Education Programs and Activities Prohibited
106.51 Employment.
106.52 Employment criteria.
106.53 Recruitment.
106.54 Compensation.
106.55 Job classification and structure.
106.56 Fringe benefits.
106.57 Marital or parental status.
106.58 Effect of State or local law or other requirements.
106.59 Advertising.
106.60 Pre-employment inquiries.
106.61 Sex as a bona-fide occupational qualification.
Subpart F--Procedures [Interim]
106.71 Procedures.
Subject Index to Title IX Preamble and Regulation
Appendix A--Guidelines for Eliminating Discrimination and Denial of
Services on the Basis of Race, Color, National Origin, Sex, and Handicap in
Vocational Education Programs [Note]
Source: 45 FR 30955, May 9, 1980, unless otherwise noted.
Subpart A--Introduction
Sec. 106.1 Purpose and effective date.
The purpose of this part is to effectuate title IX of the Education
Amendments of 1972, as amended by Pub. L. 93-568, 88 Stat. 1855 (except
sections 904 and 906 of those Amendments) which is designed to eliminate (with
certain exceptions) discrimination on the basis of sex in any education program
or activity receiving Federal financial assistance, whether or not such program
or activity is offered or sponsored by an educational institution as defined in
this part. This part is also intended to effectuate section 844 of the
Education Amendments of 1974, Pub. L. 93-380, 88 Stat. 484. The effective date
of this part shall be July 21, 1975.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682, as amended by Pub. L. 93-568, 88 Stat. 1855,
and sec. 844, Education Amendments of 1974, 88 Stat. 484, Pub. L. 93- 380)
Sec. 106.2 Definitions.
As used in this part, the term:
(a) Title IX means title IX of the Education Amendments of 1972, Pub. L.
92-318, as amended by section 3 of Pub. L. 93-568, 88 Stat. 1855, except
sections 904 and 906 thereof; 20 U.S.C. 1681, 1682, 1683, 1685, 1686.
(b) Department means the Department of Education.
(c) Secretary means the Secretary of Education.
(d) Assistant Secretary means the Assistant Secretary for Civil Rights of the
Department.
(e) Reviewing Authority means that component of the Department delegated
authority by the Secretary to appoint, and to review the decisions of,
administrative law judges in cases arising under this part.
(f) Administrative law judge means a person appointed by the reviewing
authority to preside over a hearing held under this part.
(g) Federal financial assistance means any of the following, when authorized or
extended under a law administered by the Department:
[[Page 376]]
(1) A grant or loan of Federal financial assistance, including
funds made available for:
(i) The acquisition, construction, renovation, restoration, or repair of a
building or facility or any portion thereof; and
(ii) Scholarships, loans, grants, wages or other funds extended to any entity
for payment to or on behalf of students admitted to that entity, or extended
directly to such students for payment to that entity.
(2) A grant of Federal real or personal property or any interest therein,
including surplus property, and the proceeds of the sale or transfer of such
property, if the Federal share of the fair market value of the property is not,
upon such sale or transfer, properly accounted for to the Federal Government.
(3) Provision of the services of Federal personnel.
(4) Sale or lease of Federal property or any interest therein at nominal
consideration, or at consideration reduced for the purpose of assisting the
recipient or in recognition of public interest to be served thereby, or
permission to use Federal property or any interest therein without
consideration.
(5) Any other contract, agreement, or arrangement which has as one of its
purposes the provision of assistance to any education program or activity,
except a contract of insurance or guaranty.
(h) Recipient means any State or political subdivision thereof, or any
instrumentality of a State or political subdivision thereof, any public or
private agency, institution, or organization, or other entity, or any person,
to whom Federal financial assistance is extended directly or through another
recipient and which operates an education program or activity which receives or
benefits from such assistance, including any subunit, successor, assignee, or
transferee thereof.
(i) Applicant means one who submits an application, request, or plan required
to be approved by a Department official, or by a recipient, as a condition to
becoming a recipient.
(j) Educational institution means a local educational agency (LEA) as defined
by section 1001(f) of the Elementary and Secondary Education Act of 1965 (20
U.S.C. 3381), a preschool, a private elementary or secondary school, or an
applicant or recipient of the type defined by paragraph (k), (l), (m), or (n)
of this section.
(k) Institution of graduate higher education means an institution which:
(1) Offers academic study beyond the bachelor of arts or bachelor of science
degree, whether or not leading to a certificate of any higher degree in the
liberal arts and sciences; or
(2) Awards any degree in a professional field beyond the first professional
degree (regardless of whether the first professional degree in such field is
awarded by an institution of undergraduate higher education or professional
education); or
(3) Awards no degree and offers no further academic study, but operates
ordinarily for the purpose of facilitating research by persons who have
received the highest graduate degree in any field of study.
(l) Institution of undergraduate higher education means:
(1) An institution offering at least two but less than four years of college
level study beyond the high school level, leading to a diploma or an associate
degree, or wholly or principally creditable toward a baccalaureate degree; or
(2) An institution offering academic study leading to a baccalaureate degree;
or
(3) An agency or body which certifies credentials or offers degrees, but which
may or may not offer academic study.
(m) Institution of professional education means an institution (except any
institution of undergraduate higher education) which offers a program of
academic study that leads to a first professional degree in a field for which
there is a national specialized accrediting agency recognized by the Secretary.
(n) Institution of vocational education means a school or institution (except
an institution of professional or graduate or
undergraduate higher education) which has as its primary purpose preparation of
students to pursue a technical, skilled, or semiskilled occupation or trade, or
to pursue study in a technical field, whether or not the
[[Page 377]]
school or institution offers certificates, diplomas, or degrees and
whether or not it offers fulltime study.
(o) Administratively separate unit means a school, department or college of an
educational institution (other than a local educational agency) admission to
which is independent of admission to any other component of such institution.
(p) Admission means selection for part-time, full-time, special, associate,
transfer, exchange, or any other enrollment, membership, or matriculation in or
at an education program or activity operated by a recipient.
(q) Student means a person who has gained admission.
(r) Transition plan means a plan subject to the approval of the Secretary
pursuant to section 901(a)(2) of the Education Amendments of 1972, under which
an educational institution operates in making the transition from being an
educational institution which admits only students of one sex to being one
which admits students of both sexes without discrimination.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682)
[45 FR 30955, May 9, 1980; 45 FR 37426, June 3, 1980]
Sec. 106.3 Remedial and affirmative action and self-evaluation.
(a) Remedial action. If the Assistant Secretary finds that a
recipient has discriminated against persons on the basis of sex in an education
program or activity, such recipient shall take such remedial action as the
Assistant Secretary deems necessary to overcome the effects of such
discrimination.
(b) Affirmative action. In the absence of a finding of discrimination on the
basis of sex in an education program or activity,
a recipient may take affirmative action to overcome the effects of conditions
which resulted in limited participation therein by persons of a particular sex.
Nothing herein shall be interpreted to alter any affirmative action obligations
which a recipient may have under Executive Order 11246.
(c) Self-evaluation. Each recipient education institution shall, within one
year of the effective date of this part:
(1) Evaluate, in terms of the requirements of this part, its current policies
and practices and the effects thereof concerning admission of students,
treatment of students, and employment of both academic and non-academic
personnel working in connection with the recipient's education program or
activity;
(2) Modify any of these policies and practices which do not or may not meet the
requirements of this part; and
(3) Take appropriate remedial steps to eliminate the effects of any
discrimination which resulted or may have resulted from adherence to these
policies and practices.
(d) Availability of self-evaluation and related materials. Recipients shall
maintain on file for at least three years following
completion of the evaluation required under paragraph (c) of this section, and
shall provide to the Assistant Secretary upon request, a description of any
modifications made pursuant to paragraph (c)(ii) of this section and of any
remedial steps taken pursuant to paragraph (c)(iii) of this section.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682)
Sec. 106.4 Assurance required.
(a) General. Every application for Federal financial assistance for
any education program or activity shall as condition of its approval contain or
be accompanied by an assurance from the applicant or recipient, satisfactory to
the Assistant Secretary, that each education program or activity operated by
the applicant or recipient and to which this part applies will be operated in
compliance with this part. An assurance of compliance with this part shall not
be satisfactory to the Assistant Secretary if the applicant or recipient to
whom such assurance applies fails to commit itself to take whatever remedial
action is necessary in accordance with Sec. 106.3(a) to eliminate existing
discrimination on the basis of sex or to eliminate the effects of past
discrimination whether occurring prior or subsequent to the submission to the
Assistant Secretary of such assurance.
(b) Duration of obligation.
(1) In the case of Federal financial assistance extended to provide real
property or
[[Page 378]]
structures thereon, such assurance shall obligate the recipient or,
in the case of a subsequent transfer, the transferee, for the period during
which the real property or structures are used to provide an education program
or activity.
(2) In the case of Federal financial assistance extended to provide personal
property, such assurance shall obligate the recipient for the period during
which it retains ownership or possession of the property.
(3) In all other cases such assurance shall obligate the recipient for the
period during which Federal financial assistance is extended.
(c) Form. The Director will specify the form of the assurances required by
paragraph (a) of this section and the extent to which such assurances will be
required of the applicant's or recipient's subgrantees, contractors,
subcontractors, transferees, or successors in interest.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682)
[45 FR 30955, May 9, 1980, as amended at 45 FR 86298, Dec. 30,
1980]
Sec. 106.5 Transfers of property.
If a recipient sells or otherwise transfers property financed in
whole or in part with Federal financial assistance to a transferee which
operates any education program or activity, and the Federal share of the fair
market value of the property is not upon such sale or transfer properly
accounted for to the Federal Government both the transferor and the transferee
shall be deemed to be recipients, subject to the provisions of subpart B of
this part.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682)
Sec. 106.6 Effect of other requirements.
(a) Effect of other Federal provisions. The obligations imposed by
this part are independent of, and do not alter, obligations not to discriminate
on the basis of sex imposed by Executive Order 11246, as amended; sections 704
and 855 of the Public Health Service Act (42 U.S.C. 292d and 298b-2); Title VII
of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.); the Equal Pay Act
(29 U.S.C. 206 and 206(d)); and any other Act of Congress or Federal
regulation.
(Authority: Secs. 901, 902, 905, Education Amendments of 1972, 86
Stat. 373, 374, 375; 20 U.S.C. 1681, 1682, 1685)
(b) Effect of State or local law or other requirements. The
obligation to comply with this part is not obviated or alleviated by any State
or local law or other requirement which would render any applicant or student
ineligible, or limit the eligibility of any applicant or student, on the basis
of sex, to practice any occupation or profession.
(c) Effect of rules or regulations of private organizations. The obligation to
comply with this part is not obviated or alleviated by any rule or regulation
of any organization, club, athletic or other league, or association which would
render any applicant or student ineligible to participate or limit the
eligibility or participation of any applicant or student, on the basis of sex,
in any education program or activity operated by a recipient and which receives
or benefits from Federal financial assistance.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682)
Sec. 106.7 Effect of employment opportunities.
The obligation to comply with this part is not obviated or
alleviated because employment opportunities in any occupation or
profession are or may be more limited for members of one sex than for members
of the other sex.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682)
Sec. 106.8 Designation of responsible employee and adoption of
grievance procedures.
(a) Designation of responsible employee. Each recipient shall
designate at least one employee to coordinate its efforts to comply with and
carry out its responsibilities under this part, including any investigation of
any complaint communicated to such recipient alleging its noncompliance with
this part or alleging any actions which would be prohibited by this part. The
recipient
[[Page 379]]
shall notify all its students and employees of the name, office
address and telephone number of the employee or employees appointed pursuant to
this paragraph.
(b) Complaint procedure of recipient. A recipient shall adopt and publish
grievance procedures providing for prompt and equitable resolution of student
and employee complaints alleging any action which would be prohibited by this
part.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682)
Sec. 106.9 Dissemination of policy.
(a) Notification of policy.
(1) Each recipient shall implement specific and continuing steps to notify
applicants for admission and employment, students and parents of elementary and
secondary school students, employees, sources of referral of applicants for
admission and employment, and all unions or professional organizations holding
collective bargaining or professional agreements with the recipient, that it
does not discriminate on the basis of sex in the educational programs or
activities which it operates, and that it is required by title IX and this part
not to discriminate in such a manner. Such notification shall contain such
information, and be made in such manner, as the Assistant Secretary finds
necessary to apprise such persons of the protections against discrimination
assured them by title IX and this part, but shall state at least that the
requirement not to discriminate in education programs and activities extends to
employment therein, and to admission thereto unless Subpart C does not apply to
the recipient, and that inquiries concerning the application of title IX and
this part to such recipient may be referred to the employee designated pursuant
to Sec. 106.8, or to the Assistant Secretary.
(2) Each recipient shall make the initial notification required by paragraph
(a)(1) of this section within 90 days of the effective date of this part or of
the date this part first applies to such recipient, whichever comes later,
which notification shall include publication in: (i) Local newspapers; (ii)
Newspapers and magazines operated by such recipient or by student, alumnae, or
alumni groups for or in connection with such recipient; and (iii) Memoranda or
other written communications distributed to every student and employee of such
recipient.
(b) Publications.
(1) Each recipient shall prominently include a statement of the policy
described in paragraph (a) of this section in each announcement, bulletin,
catalog, or application form which it makes available to any person of a type,
described in paragraph (a) of this section, or which is otherwise used in
connection with the recruitment of students or employees.
(2) A recipient shall not use or distribute a publication of the type described
in this paragraph which suggests, by text or illustration, that such recipient
treats applicants, students, or employees differently on the basis of sex
except as such treatment is permitted by this part.
(c) Distribution. Each recipient shall distribute without discrimination on the
basis of sex each publication described in paragraph (b) of this section, and
shall apprise each of its admission and employment recruitment representatives
of the policy of nondiscrimination described in paragraph (a) of this section,
and require such representatives to adhere to such policy.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682)
Subpart B--Coverage
Sec. 106.11 Application.
Except as provided in this subpart, this part 106 applies to every
recipient and to each education program or activity operated by such recipient
which receives or benefits from Federal financial assistance.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682)
[45 FR 86298, Dec. 30, 1980]
[[Page 380]]
Sec. 106.12 Educational institutions controlled by religious
organizations.
(a) Application. This part does not apply to an educational
institution which is controlled by a religious organization to the extent
application of this part would not be consistent with the religious tenets of
such organization.
(b) Exemption. An educational institution which wishes to claim the exemption
set forth in paragraph (a) of this section, shall do so by submitting in
writing to the Assistant Secretary a statement by the highest ranking official
of the institution, identifying the provisions of this part which conflict with
a specific tenet of the religious organization.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682)
Sec. 106.13 Military and merchant marine educational institutions.
This part does not apply to an educational institution whose
primary purpose is the training of individuals for a military service of the
United States or for the merchant marine.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682)
Sec. 106.14 Membership practices of certain organizations.
(a) Social fraternities and sororities. This part does not apply to
the membership practices of social fraternities and sororities which are exempt
from taxation under section 501(a) of the Internal Revenue Code of 1954, the
active membership of which consists primarily of students in attendance at
institutions of higher education.
(b) YMCA, YWCA, Girl Scouts, Boy Scouts and Camp Fire Girls. This part does not
apply to the membership practices of the Young Men's Christian Association, the
Young Women's Christian Association, the Girl Scouts, the Boy Scouts and Camp
Fire Girls.
(c) Voluntary youth service organizations. This part does not apply to the
membership practices of voluntary youth service organizations which are exempt
from taxation under section 501(a) of the Internal Revenue Code of 1954 and the
membership of which has been traditionally limited to members of one sex and
principally to persons of less than nineteen years of age.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682; sec. 3(a) of P.L. 93-568, 88 Stat. 1862
amending Sec. 901)
Sec. 106.15 Admissions.
(a) Admissions to educational institutions prior to June 24, 1973,
are not covered by this part.
(b) Administratively separate units. For the purposes only of this section,
Secs. 106.16 and 106.17, and subpart C, each administratively separate unit
shall be deemed to be an educational institution.
(c) Application of subpart C. Except as provided in paragraphs (d) and (e) of
this section, subpart C applies to each recipient. A recipient to which subpart
C applies shall not discriminate on the basis of sex in admission or
recruitment in violation of that subpart.
(d) Educational institutions. Except as provided in paragraph (e) of this
section as to recipients which are educational institutions, subpart C applies
only to institutions of vocational education, professional education, graduate
higher education, and public institutions of undergraduate higher education.
(e) Public institutions of undergraduate higher education. Subpart C does not
apply to any public institution of undergraduate higher education which
traditionally and continually from its establishment has had a policy of
admitting only students of one sex.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682)
[45 FR 30955, May 9, 1980, as amended at 45 FR 86298, Dec. 30,
1980]
Sec. 106.16 Educational institutions eligible to submit transition
plans.
(a) Application. This section applies to each educational
institution to which subpart C applies which:
(1) Admitted only students of one sex as regular students as of June 23, 1972;
or
(2) Admitted only students of one sex as regular students as of June 23, 1965,
[[Page 381]]
but thereafter admitted as regular students, students of the sex
not admitted prior to June 23, 1965.
(b) Provision for transition plans. An educational institution to which this
section applies shall not discriminate on the basis of sex in admission or
recruitment in violation of subpart C unless it is carrying out a transition
plan approved by the Secretary as described in Sec. 106.17, which plan provides
for the elimination of such discrimination by the earliest practicable date but
in no event later than June 23, 1979.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682)
Sec. 106.17 Transition plans.
(a) Submission of plans. An institution to which Sec. 106.16
applies and which is composed of more than one administratively separate unit
may submit either a single transition plan applicable to all such units, or a
separate transition plan applicable to each such unit.
(b) Content of plans. In order to be approved by the Secretary a transition
plan shall:
(1) State the name, address, and Federal Interagency Committee on Education
(FICE) Code of the educational institution submitting such plan, the
administratively separate units to which the plan is applicable, and the name,
address, and telephone number of the person to whom questions concerning the
plan may be addressed. The person who submits the plan shall be the chief
administrator or president of the institution, or another individual legally
authorized to bind the institution to all actions set forth in the plan.
(2) State whether the educational institution or administratively separate unit
admits students of both sexes, as regular students and, if so, when it began to
do so.
(3) Identify and describe with respect to the educational institution or
administratively separate unit any obstacles to admitting students without
discrimination on the basis of sex.
(4) Describe in detail the steps necessary to eliminate as soon as practicable
each obstacle so identified and indicate the schedule for taking these steps
and the individual directly responsible for their implementation.
(5) Include estimates of the number of students, by sex, expected to apply for,
be admitted to, and enter each class during the period covered by the plan.
(c) Nondiscrimination. No policy or practice of a recipient to which Sec.
106.16 applies shall result in treatment of applicants to or students of such
recipient in violation of subpart C unless such treatment is necessitated by an
obstacle identified in paragraph (b) (3) of this section and a schedule for
eliminating that obstacle has been provided as required by paragraph (b) (4) of
this section. (d) Effects of past exclusion. To overcome the effects of past
exclusion of students on the basis of sex, each educational institution to
which Sec. 106.16 applies shall include in its transition plan, and shall
implement, specific steps designed to encourage individuals of the previously
excluded sex to apply for admission to such institution. Such steps shall
include instituting recruitment programs which emphasize the institution's
commitment to enrolling students of the sex previously excluded.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682)
Subpart C--Discrimination on the Basis of Sex in Admission and
Recruitment Prohibited
Sec. 106.21 Admission.
(a) General. No person shall, on the basis of sex, be denied
admission, or be subjected to discrimination in admission, by any recipient to
which this subpart applies, except as provided in Secs. 106.16 and 106.17.
(b) Specific prohibitions.
(1) In determining whether a person satisfies any policy or criterion for
admission, or in making any offer of admission, a recipient to which this
subpart applies shall not:
(i) Give preference to one person over another on the basis of sex, by ranking
applicants separately on such basis, or otherwise;
(ii) Apply numerical limitations upon the number or proportion of persons of
either sex who may be admitted; or
[[Page 382]]
(iii) Otherwise treat one individual differently from another on
the basis of sex.
(2) A recipient shall not administer or operate any test or other criterion for
admission which has a disproportionately adverse effect on persons on the basis
of sex unless the use of such test or criterion is shown to predict validly
success in the education program or activity in question and alternative tests
or criteria which do not have such a disproportionately adverse effect are
shown to be unavailable.
(c) Prohibitions relating to marital or parental status. In determining whether
a person satisfies any policy or criterion for
admission, or in making any offer of admission, a recipient to which this
subpart applies:
(1) Shall not apply any rule concerning the actual or potential parental,
family, or marital status of a student or applicant which treats persons
differently on the basis of sex;
(2) Shall not discriminate against or exclude any person on the basis of
pregnancy, childbirth, termination of pregnancy, or recovery therefrom, or
establish or follow any rule or practice which so discriminates or excludes;
(3) Shall treat disabilities related to pregnancy, childbirth, termination of
pregnancy, or recovery therefrom in the same manner and under the same policies
as any other temporary disability or physical condition; and
(4) Shall not make pre-admission inquiry as to the marital status of an
applicant for admission, including whether such applicant is ``Miss'' or
``Mrs.'' A recipient may make pre-admission inquiry as to the sex of an
applicant for admision, but only if such inquiry is made equally of such
applicants of both sexes and if the results of such inquiry are not used in
connection with discrimination prohibited by this part.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682)
Sec. 106.22 Preference in admission.
A recipient to which this subpart applies shall not give preference
to applicants for admission, on the basis of attendance at any educational
institution or other school or entity which admits as students only or
predominantly members of one sex, if the giving of such preference has the
effect of discriminating on the basis of sex in violation of this subpart.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682)
Sec. 106.23 Recruitment.
(a) Nondiscriminatory recruitment. A recipient to which this
subpart applies shall not discriminate on the basis of sex in the recruitment
and admission of students. A recipient may be required to undertake additional
recruitment efforts for one sex as remedial action pursuant to Sec. 106.3(a),
and may choose to undertake such efforts as affirmative action pursuant to Sec.
106.3(b).
(b) Recruitment at certain institutions. A recipient to which this subpart
applies shall not recruit primarily or exclusively at educational institutions,
schools or entities which admit as students only or predominantly members of
one sex, if such actions have the effect of discriminating on the basis of sex
in violation of this subpart.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682)
Subpart D--Discrimination on the Basis of Sex in Education Programs
and Activities Prohibited
Sec. 106.31 Education programs and activities.
(a) General. Except as provided elsewhere in this part, no person
shall, on the basis of sex, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any academic,
extracurricular, research, occupational training, or other education program or
activity operated by a recipient which receives or benefits from Federal
financial assistance. This subpart does not apply to actions of a recipient in
connection with admission of its students to an education program or activity
of (1) a recipient to which subpart C does not apply, or (2) an entity, not a
recipient, to which subpart C would not apply if the entity were a recipient.
[[Page 383]]
(b) Specific prohibitions. Except as provided in this subpart, in
providing any aid, benefit, or service to a student, a recipient shall not, on
the basis of sex:
(1) Treat one person differently from another in determining whether such
person satisfies any requirement or condition for the provision of such aid,
benefit, or service;
(2) Provide different aid, benefits, or services or provide aid, benefits, or
services in a different manner;
(3) Deny any person any such aid, benefit, or service;
(4) Subject any person to separate or different rules of behavior, sanctions,
or other treatment;
(5) Apply any rule concerning the domicile or residence of a student or
applicant, including eligibility for in-state fees and tuition;
(6) Aid or perpetuate discrimination against any person by providing
significant assistance to any agency, organization, or person which
discriminates on the basis of sex in providing any aid, benefit or service to
students or employees;
(7) Otherwise limit any person in the enjoyment of any right, privilege,
advantage, or opportunity.
(c) Assistance administered by a recipient educational institution to study at
a foreign institution. A recipient educational institution may administer or
assist in the administration of scholarships, fellowships, or other awards
established by foreign or domestic wills, trusts, or similar legal instruments,
or by acts of foreign governments and restricted to members of one sex, which
are designed to provide opportunities to study abroad, and which are awarded to
students who are already matriculating at or who are graduates of the recipient
institution; Provided, a recipient educational institution which administers or
assists in the administration of such scholarships, fellowships, or other
awards which are restricted to members of one sex provides, or otherwise makes
available reasonable opportunities for similar studies for members of the other
sex. Such opportunities may be derived from either domestic or foreign sources.
(d) Programs not operated by recipient.
(1) This paragraph applies to any recipient which requires participation by any
applicant, student, or employee in any education program or activity not
operated wholly by such recipient, or which facilitates, permits, or considers
such participation as part of or equivalent to an education program or activity
operated by such recipient, including participation in educational consortia
and cooperative employment and student-teaching assignments.
(2) Such recipient:
(i) Shall develop and implement a procedure designed to assure itself that the
operator or sponsor of such other education program or activity takes no action
affecting any applicant, student, or employee of such recipient which this part
would prohibit such recipient from taking; and
(ii) Shall not facilitate, require, permit, or consider such participation if
such action occurs.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682)
[45 FR 30955, May 9, 1980, as amended at 47 FR 32527, July 28,
1982]
Sec. 106.32 Housing.
(a) Generally. A recipient shall not, on the basis of sex, apply
different rules or regulations, impose different fees or requirements, or offer
different services or benefits related to housing, except as provided in this
section (including housing provided only to married students).
(b) Housing provided by recipient.
(1) A recipient may provide separate housing on the basis of sex.
(2) Housing provided by a recipient to students of one sex, when compared to
that provided to students of the other sex, shall be as a whole:
(i) Proportionate in quantity to the number of students of that sex applying
for such housing; and
(ii) Comparable in quality and cost to the student.
(c) Other housing.
(1) A recipient shall not, on the basis of sex, administer different policies
or practices concerning occupancy by its students of housing other than
provided by such recipient.
(2) A recipient which, through solicitation, listing, approval of housing, or
otherwise, assists any agency, organization, or person in making housing
available to any of its students, shall
[[Page 384]]
take such reasonable action as may be necessary to assure itself
that such housing as is provided to students of one sex, when compared to that
provided to students of the other sex, is as a whole:
(i) Proportionate in quantity and
(ii) Comparable in quality and cost to the student.
A recipient may render such assistance to any agency, organization,
or person which provides all or part of such housing to students only of one
sex.
(Authority: Secs. 901, 902, 907, Education Amendments of 1972, 86
Stat. 373, 374, 375; 20 U.S.C. 1681, 1682, 1686)
Sec. 106.33 Comparable facilities.
A recipient may provide separate toilet, locker room, and shower
facilities on the basis of sex, but such facilities provided for students of
one sex shall be comparable to such facilities provided for students of the
other sex.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374)
Sec. 106.34 Access to course offerings.
A recipient shall not provide any course or otherwise carry out any
of its education program or activity separately on the basis of sex, or require
or refuse participation therein by any of its students on such basis, including
health, physical education, industrial, business, vocational, technical, home
economics, music, and adult education courses.
(a) With respect to classes and activities in physical education at the
elementary school level, the recipient shall comply fully with this section as
expeditiously as possible but in no event later than one year from the
effective date of this regulation. With respect to physical education classes
and activities at the secondary and post-secondary levels, the recipient shall
comply fully with this section as expeditiously as possible but in no event
later than three years from the effective date of this regulation.
(b) This section does not prohibit grouping of students in physical education
classes and activities by ability as assessed by objective standards of
individual performance developed and applied without regard to sex.
(c) This section does not prohibit separation of students by sex within
physical education classes or activities during participation in wrestling,
boxing, rugby, ice hockey, football, basketball and other sports the purpose or
major activity of which involves bodily contact. (d) Where use of a single
standard of measuring skill or progress in a physical education class has an
adverse effect on members of one sex, the recipient shall use appropriate
standards which do not have such effect.
(e) Portions of classes in elementary and secondary schools which deal
exclusively with human sexuality may be conducted in separate sessions for boys
and girls.
(f) Recipients may make requirements based on vocal range or quality which may
result in a chorus or choruses of one or predominantly one sex.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682)
Sec. 106.35 Access to schools operated by LEAs.
A recipient which is a local educational agency shall not, on the
basis of sex, exclude any person from admission to:
(a) Any institution of vocational education operated by such recipient; or
(b) Any other school or educational unit operated by such recipient, unless
such recipient otherwise makes available to such person, pursuant to the same
policies and criteria of admission, courses, services, and facilities
comparable to each course, service, and facility offered in or through such
schools.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682)
Sec. 106.36 Counseling and use of appraisal and counseling
materials.
(a) Counseling. A recipient shall not discriminate against any
person on the basis of sex in the counseling or guidance of students or
applicants for admission.
(b) Use of appraisal and counseling materials. A recipient which uses testing
or other materials for appraising or
[[Page 385]]
counseling students shall not use different materials for students
on the basis of their sex or use materials which permit or require different
treatment of students on such basis unless such different materials cover the
same occupations and interest areas and the use of such different materials is
shown to be essential to eliminate sex bias. Recipients shall develop and use
internal procedures for ensuring that such materials do not discriminate on the
basis of sex. Where the use of a counseling test or other instrument results in
a substantially disproportionate number of members of one sex in any particular
course of study or classification, the recipient shall take such action as is
necessary to assure itself that such disproportion is not the result of
discrimination in the instrument or its application.
(c) Disproportion in classes. Where a recipient finds that a particular class
contains a substantially disproportionate number of individuals of one sex, the
recipient shall take such action as is necessary to assure itself that such
disproportion is not the result of discrimination on the basis of sex in
counseling or appraisal materials or by counselors.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682)
Sec. 106.37 Financial assistance.
(a) General. Except as provided in paragraphs (b) and (c) of this
section, in providing financial assistance to any of its students, a recipient
shall not:
(1) On the basis of sex, provide different amount or types of such assistance,
limit eligibility for such assistance which is of any particular type or
source, apply different criteria, or otherwise discriminate;
(2) Through solicitation, listing, approval, provision of facilities or other
services, assist any foundation, trust, agency, organization, or person which
provides assistance to any of such recipient's students in a manner which
discriminates on the basis of sex; or
(3) Apply any rule or assist in application of any rule concerning eligibility
for such assistance which treats persons of one sex differently from persons of
the other sex with regard to marital or parental status.
(b) Financial aid established by certain legal instruments.
(1) A recipient may administer or assist in the administration of
scholarships, fellowships, or other forms of financial assistance established
pursuant to domestic or foreign wills, trusts, bequests, or similar legal
instruments or by acts of a foreign government which requires that awards be
made to members of a particular sex specified therein; Provided, That the
overall effect of the award of such sex- restricted scholarships, fellowships,
and other forms of financial assistance does not discriminate on the basis of
sex.
(2) To ensure nondiscriminatory awards of assistance as required in paragraph
(b)(1) of this section, recipients shall develop and use procedures under
which:
(i) Students are selected for award of financial assistance on the basis of
nondiscriminatory criteria and not on the basis of availability of funds
restricted to members of a particular sex;
(ii) An appropriate sex-restricted scholarship, fellowship, or other form of
financial assistance is allocated to each student selected under paragraph
(b)(2)(i) of this section; and
(iii) No student is denied the award for which he or she was selected under
paragraph (b)(2)(i) of this section because of the
absence of a scholarship, fellowship, or other form of financial assistance
designated for a member of that student's sex.
(c) Athletic scholarships.
(1) To the extent that a recipient awards athletic scholarships or
grants-in-aid, it must provide reasonable opportunities for such awards for
members of each sex in proportion to the number of students of each sex
participating in interscholastic or intercollegiate athletics.
(2) Separate athletic scholarships or grants-in-aid for members of each sex may
be provided as part of separate athletic teams for members of each sex to the
extent consistent with this paragraph and Sec. 106.41.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682; and Sec. 844, Education Amendments of 1974,
Pub. L. 93-380, 88 Stat. 484)
[[Page 386]]
Sec. 106.38 Employment assistance to students.
(a) Assistance by recipient in making available outside employment.
A recipient which assists any agency, organization or person in making
employment available to any of its students:
(1) Shall assure itself that such employment is made available without
discrimination on the basis of sex; and
(2) Shall not render such services to any agency, organization, or person which
discriminates on the basis of sex in its employment practices.
(b) Employment of students by recipients. A recipient which employs any of its
students shall not do so in a manner which violates subpart E of this part.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682)
Sec. 106.39 Health and insurance benefits and services.
In providing a medical, hospital, accident, or life insurance
benefit, service, policy, or plan to any of its students, a recipient
shall not discriminate on the basis of sex, or provide such benefit, service,
policy, or plan in a manner which would violate Subpart E of this part if it
were provided to employees of the recipient. This section shall not prohibit a
recipient from providing any benefit or service which may be used by a
different proportion of students of one sex than of the other, including family
planning services. However, any recipient which provides full coverage health
service shall provide gynecological care.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682)
Sec. 106.40 Marital or parental status.
(a) Status generally. A recipient shall not apply any rule
concerning a student's actual or potential parental, family, or marital
status which treats students differently on the basis of sex.
(b) Pregnancy and related conditions.
(1) A recipient shall not discriminate against any student, or exclude any
student from its education program or activity, including any class or
extracurricular activity, on the basis of such student's pregnancy, childbirth,
false pregnancy, termination of pregnancy or recovery therefrom, unless the
student requests voluntarily to participate in a separate portion of the
program or activity of the recipient.
(2) A recipient may require such a student to obtain the certification of a
physician that the student is physically and emotionally able to continue
participation in the normal education program or activity so long as such a
certification is required of all students for other physical or emotional
conditions requiring the attention of a physician.
(3) A recipient which operates a portion of its education program or activity
separately for pregnant students, admittance to which is completely voluntary
on the part of the student as provided in paragraph (b)(1) of this section
shall ensure that the instructional program in the separate program is
comparable to that offered to non-pregnant students.
(4) A recipient shall treat pregnancy, childbirth, false pregnancy, termination
of pregnancy and recovery therefrom in the same manner and under the same
policies as any other temporary disability with respect to any medical or
hospital benefit, service, plan or policy which such recipient administers,
operates, offers, or participates in with respect to students admitted to the
recipient's educational program or activity.
(5) In the case of a recipient which does not maintain a leave policy for its
students, or in the case of a student who does not otherwise qualify for leave
under such a policy, a recipient shall treat pregnancy, childbirth, false
pregnancy, termination of pregnancy and recovery therefrom as a justification
for a leave of absence for so long a period of time as is deemed medically
necessary by the student's physician, at the conclusion of which the student
shall be reinstated to the status which she held when the leave began.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682)
Sec. 106.41 Athletics.
(a) General. No person shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, be
[[Page 387]]
treated differently from another person or otherwise be
discriminated against in any interscholastic, intercollegiate, club or
intramural athletics offered by a recipient, and no recipient shall provide any
such athletics separately on such basis.
(b) Separate teams.
Notwithstanding the requirements of paragraph (a) of this section, a recipient
may operate or sponsor separate teams for members of each sex where selection
for such teams is based upon competitive skill or the activity involved is a
contact sport. However, where a recipient operates or sponsors a team in a
particular sport for members of one sex but operates or sponsors no such team
for members of the other sex, and athletic opportunities for members of that
sex have previously been limited, members of the excluded sex must be allowed
to try-out for the team offered unless the sport involved is a contact sport.
For the purposes of this part, contact sports include boxing, wrestling, rugby,
ice hockey, football, basketball and other sports the purpose or major activity
of which involves bodily contact.
(c) Equal opportunity. A recipient which operates or sponsors interscholastic,
intercollegiate, club or intramural athletics shall provide equal athletic
opportunity for members of both sexes. In determining whether equal
opportunities are available the Director will consider, among other factors:
(1) Whether the selection of sports and levels of competition effectively
accommodate the interests and abilities of members of both sexes;
(2) The provision of equipment and supplies;
(3) Scheduling of games and practice time;
(4) Travel and per diem allowance;
(5) Opportunity to receive coaching and academic tutoring;
(6) Assignment and compensation of coaches and tutors;
(7) Provision of locker rooms, practice and competitive facilities;
(8) Provision of medical and training facilities and services;
(9) Provision of housing and dining facilities and services;
(10) Publicity.
Unequal aggregate expenditures for members of each sex or unequal expenditures
for male and female teams if a recipient operates or sponsors separate teams
will not constitute noncompliance with this section, but the Assistant
Secretary may consider the failure to provide necessary funds for teams for one
sex in assessing equality of opportunity for members of each sex.
(d) Adjustment period. A recipient which operates or sponsors interscholastic,
intercollegiate, club or intramural athletics at the elementary school level
shall comply fully with this section as expeditiously as possible but in no
event later than one year from the effective date of this regulation. A
recipient which operates or sponsors interscholastic, intercollegiate, club or
intramural athletics at the secondary or post-secondary school level shall
comply fully with this section as expeditiously as possible but in no event
later than three years from the effective date of this regulation.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682; and Sec. 844, Education Amendments of 1974,
Pub. L. 93-380, 88 Stat. 484)
Sec. 106.42 Textbooks and curricular material.
Nothing in this regulation shall be interpreted as requiring or
prohibiting or abridging in any way the use of particular textbooks or
curricular materials.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682)
Subpart E--Discrimination on the Basis of Sex in Employment in
Education Programs and Activities Prohibited
Sec. 106.51 Employment.
(a) General. (1) No person shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subjected to
discrimination in employment, or recruitment, consideration, or selection
therefor, whether full-time or part-time, under any education program or
activity operated by
[[Page 388]]
a recipient which receives or benefits from Federal financial
assistance.
(2) A recipient shall make all employment decisions in any education program or
activity operated by such recipient in a nondiscriminatory manner and shall not
limit, segregate, or classify applicants or employees in any way which could
adversely affect any applicant's or employee's employment opportunities or
status because of sex.
(3) A recipient shall not enter into any contractual or other relationship
which directly or indirectly has the effect of subjecting employees or students
to discrimination prohibited by this subpart, including relationships with
employment and referral agencies, with labor unions, and with organizations
providing or administering fringe benefits to employees of the recipient.
(4) A recipient shall not grant preferences to applicants for employment on the
basis of attendance at any educational institution or entity which admits as
students only or predominantly members of one sex, if the giving of such
preferences has the effect of discriminating on the basis of sex in violation
of this part.
(b) Application. The provisions of this subpart apply to:
(1) Recruitment, advertising, and the process of application for employment;
(2) Hiring, upgrading, promotion, consideration for and award of tenure,
demotion, transfer, layoff, termination, application of nepotism policies,
right of return from layoff, and rehiring;
(3) Rates of pay or any other form of compensation, and changes in
compensation;
(4) Job assignments, classifications and structure, including position
descriptions, lines of progression, and seniority lists;
(5) The terms of any collective bargaining agreement; (6) Granting and return
from leaves of absence, leave for pregnancy, childbirth, false pregnancy,
termination of pregnancy, leave for persons of either sex to care for children
or dependents, or any other leave;
(7) Fringe benefits available by virtue of employment, whether or not
administered by the recipient;
(8) Selection and financial support for training, including apprenticeship,
professional meetings, conferences, and other related activities, selection for
tuition assistance, selection for sabbaticals and leaves of absence to pursue
training;
(9) Employer-sponsored activities, including social or recreational programs;
and
(10) Any other term, condition, or privilege of employment.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682)
Sec. 106.52 Employment criteria.
A recipient shall not administer or operate any test or other
criterion for any employment opportunity which has a disproportionately adverse
effect on persons on the basis of sex unless:
(a) Use of such test or other criterion is shown to predict validly successful
performance in the position in question; and
(b) Alternative tests or criteria for such purpose, which do not have such
disproportionately adverse effect, are shown to be
unavailable.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682)
Sec. 106.53 Recruitment.
(a) Nondiscriminatory recruitment and hiring. A recipient shall not
discriminate on the basis of sex in the recruitment and hiring of employees.
Where a recipient has been found to be presently discriminating on the basis of
sex in the recruitment or hiring of employees, or has been found to have in the
past so discriminated, the recipient shall recruit members of the sex so
discriminated against so as to overcome the effects of such past or present
discrimination.
(b) Recruitment patterns. A recipient shall not recruit primarily or
exclusively at entities which furnish as applicants only or predominantly
members of one sex if such actions have the effect of discriminating on the
basis of sex in violation of this subpart.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682)
[[Page 389]]
Sec. 106.54 Compensation.
A recipient shall not make or enforce any policy or practice which,
on the basis of sex:
(a) Makes distinctions in rates of pay or other compensation;
(b) Results in the payment of wages to employees of one sex at a rate less than
that paid to employees of the opposite sex for equal work on jobs the
performance of which requires equal skill, effort, and responsibility, and
which are performed under similar working conditions.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682)
Sec. 106.55 Job classification and structure.
A recipient shall not:
(a) Classify a job as being for males or for females;
(b) Maintain or establish separate lines of progression, seniority lists,
career ladders, or tenure systems based on sex; or
(c) Maintain or establish separate lines of progression, seniority systems,
career ladders, or tenure systems for similar jobs, position descriptions, or
job requirements which classify persons on the basis of sex, unless sex is a
bona-fide occupational qualification for the positions in question as set forth
in Sec. 106.61.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682)
Sec. 106.56 Fringe benefits.
(a) Fringe benefits defined. For purposes of this part, fringe
benefits means: Any medical, hospital, accident, life insurance or retirement
benefit, service, policy or plan, any profit-sharing or bonus plan, leave, and
any other benefit or service of employment not subject to the provision of Sec.
106.54.
(b) Prohibitions. A recipient shall not:
(1) Discriminate on the basis of sex with regard to making fringe benefits
available to employees or make fringe benefits available to spouses, families,
or dependents of employees differently upon the basis of the employee's sex;
(2) Administer, operate, offer, or participate in a fringe benefit plan which
does not provide either for equal periodic benefits for members of each sex, or
for equal contributions to the plan by such recipient for members of each sex;
or
(3) Administer, operate, offer, or participate in a pension or retirement plan
which establishes different optional or compulsory retirement ages based on sex
or which otherwise discriminates in benefits on the basis of sex.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682)
Sec. 106.57 Marital or parental status.
(a) General. A recipient shall not apply any policy or take any
employment action:
(1) Concerning the potential marital, parental, or family status of an employee
or applicant for employment which treats persons differently on the basis of
sex; or
(2) Which is based upon whether an employee or applicant for employment is the
head of household or principal wage earner in such employee's or applicant's
family unit.
(b) Pregnancy. A recipient shall not discriminate against or exclude from
employment any employee or applicant for employment on the basis of pregnancy,
childbirth, false pregnancy, termination of pregnancy, or recovery therefrom.
(c) Pregnancy as a temporary disability. A recipient shall treat pregnancy,
childbirth, false pregnancy, termination of pregnancy, and recovery therefrom
and any temporary disability resulting therefrom as any other temporary
disability for all job related purposes, including commencement, duration and
extensions of leave, payment of disability income, accrual of seniority and any
other benefit or service, and reinstatement, and under any fringe benefit
offered to employees by virtue of employment.
(d) Pregnancy leave. In the case of a recipient which does not maintain a leave
policy for its employees, or in the case of an employee with insufficient leave
or accrued employment time to qualify for leave under such a policy, a
recipient shall treat pregnancy, childbirth, false pregnancy, termination of
pregnancy and recovery therefrom as a
[[Page 390]]
justification for a leave of absence without pay for a reasonable
period of time, at the conclusion of which the employee shall be reinstated to
the status which she held when the leave began or to a comparable position,
without decrease in rate of compensation or loss of promotional opportunities,
or any other right or privilege of employment.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682)
Sec. 106.58 Effect of State or local law or other requirements.
(a) Prohibitory requirements. The obligation to comply with this
subpart is not obviated or alleviated by the existence of any State or local
law or other requirement which imposes prohibitions or limits upon employment
of members of one sex which are not imposed upon members of the other sex.
(b) Benefits. A recipient which provides any compensation, service, or benefit
to members of one sex pursuant to a State or local law or other requirement
shall provide the same compensation, service, or benefit to members of the
other sex.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682)
Sec. 106.59 Advertising.
A recipient shall not in any advertising related to employment
indicate preference, limitation, specification, or discrimination based on sex
unless sex is a bona-fide occupational qualification for the particular job in
question.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682)
Sec. 106.60 Pre-employment inquiries.
(a) Marital status. A recipient shall not make pre-employment
inquiry as to the marital status of an applicant for employment,
including whether such applicant is ``Miss or Mrs.''
(b) Sex. A recipient may make pre-employment inquiry as to the sex of an
applicant for employment, but only if such inquiry is made equally of such
applicants of both sexes and if the results of such inquiry are not used in
connection with discrimination prohibited by this part.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682)
Sec. 106.61 Sex as a bona-fide occupational qualification.
A recipient may take action otherwise prohibited by this subpart
provided it is shown that sex is a bona-fide occupational qualification for
that action, such that consideration of sex with regard to such action is
essential to successful operation of the employment function concerned. A
recipient shall not take action pursuant to this section which is based upon
alleged comparative employment characteristics or stereotyped characterizations
of one or the other sex, or upon preference based on sex of the recipient,
employees, students, or other persons, but nothing contained in this section
shall prevent a recipient from considering an employee's sex in relation to
employment in a locker room or toilet facility used only by members of one sex.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682)
Subpart F--Procedures [Interim]
Sec. 106.71 Procedures.
The procedural provisions applicable to title VI of the Civil
Rights Act of 1964 are hereby adopted and incorporated herein by reference.
These procedures may be found at 34 CFR 100.6-100.11 and 34 CFR, part 101.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682)
Subject Index to Title IX Preamble and Regulation \1\
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\1\ Preamble paragraph numbers are in brackets [ ].
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A
Access to Course Offerings [43, 55, 56, 57, 58]; 106.34
Access to Schools Operated by LEA's, [44]; 106.35
Admissions, [5, 6, 30]; 106.15, 106.21
[[Page 391]]
Affirmative and remedial action, [16, 17, 24]; 106.3(a); (b)
Administratively separate units, [30]; 106.15(b) 106.2(o)
Educational Institutions, [30], 106.15(d), 106.2(n)
General, 106.21(a), 106.2(p),
Prohibitions relating to marital and parental status, [32, 36]; 106.21(c)
Professional schools, [30], 106.2(m)
Public institutions of undergraduate higher education, 106.15(e)
Recruitment, [34, 35]; 106.23
Specific prohibitions, 106.21(b)
Tests, [31]; 106.21(b) (2)
Preference in admission, [35]; 106.22
Advertising, 106.59
Affirmative Action, see ``Remedial and Affirmative Actions''
Assistance to ``outside'' discriminatory organizations, [40, 53]; 106.31(b)
(7), (c)
Assurances, [18]; 106.4
Duration of obligation, 106.4(b)
Form, 106.4(c)
Athletics, [69 to 78]; 106.41
Adjustment period, [78]; 106.41(d)
Contact sport defined, 106.41(d)
Equal opportunity, [76, 77]; 106.41(d)
Determining factors, 106.41(c) (i) to (x)
Equipment, 106.41(c)
Expenditures, 106.41(c)
Facilities, 106.41(c)
Travel, 106.41(c)
Scholarships, [64, 65]; 106.37(d)
General, [69, 70, 71, 72, 73, 74, 75]; 106.41(a)
Separate teams, [75]; 106.41(b)
B
BFOQ, [96]; 106.61
C
Comparable facilities
Housing, [42, 54]; 106.32
Other, 106.33, 106.35(b)
Compensation, [84, 87, 92]; 106.54
Counseling
Disproportionate classes, [45, 59]; 106.36(c)
General, [45, 59]; 106.36(a)
Materials, [45, 59]; 106.36(b)
Course Offerings
Adjustment period, [55]; 106.34(a) (i)
General, [7, 43]; 106.34
Music classes, [43]; 106.34(f)
Physical education, [43, 56, 58];
Sex education, [43, 57]; 106.34(e)
Coverage, [5]; 106.11 to 106.17
Exemptions
Curricular materials, [52]; 106.42(a)
D
Definitions, [14, 15]; 106.2 (a) to (r)
Designation of responsible employee, [20, 22]; 106.8(a), (b)
Dissemination of policy, [21]; 106.9
Distribution, 106.9(c)
Notification of policy, [21]; 106.9(a)
Publications, 106.9(b)
Dress codes 106.31(b) (4)
E
Education Institutions
Controlled by religious organizations, 106.12
Application, [28, 29]; 106.12(a)
Exemption, [26]; 106.12(b)
Education Program and Activities
Benefiting from Federal financial assistance, [10, 11]; 106.11
General, [10, 11, 53]; 106.31(a)
Programs not operated by recipient, [41, 54]; 106.31(c)
Specific prohibitions, [38, 39, 40, 53]; 106.31 (b)
Effective Date, [3]
Employee responsible for Title IX, see ``Designation of Responsible
Employee''
Employment
Advertising, 106.59
Application, 106.51(b)
Compensation, [84, 92]; 106.54
Employment criteria, 106.52
Fringe benefits, [88, 89]; 106.56
General, [81, 82, 87]; 106.51
Job Classification and Structure, 106.55
Marital and Parental Status, 106.57
Pregnancy, [85, 93]; 106.57(b)
Pregnancy as Temporary Disability, [85, 93]; 106.57(c)
Pregnancy Leave, [85, 93, 94]; 106.57(d)
Pre-Employment Inquiry
Recruitment, [83, 90, 91, 95]
Sex as a BFOQ, [96]; 106.61
Student Employment, [66]; 106.38
Tenure, 106.51(b) (2)
Exemptions, [5, 27, 28, 29, 30, 53]; 106.12(b), 106.13, 106.14, 106.15(a),
106.15(d), 106.16
F
Federal Financial Assistance, 106.2(a)
Financial Assistance to students, [46, 60, 61]; 106.37
Athletic Scholarships, [46, 64, 65]; 106.37(d)
Foreign institutions, study at [63]; 106.31(c)
General, 106.37
Non-need scholarships, [62]; 106.37(b)
Pooling of sex-restrictive, [46, 61, 62]; 106.37(b)
Sex-restrictive assistance through foreign or domestic wills [46, 61, 62];
106.37(b)
Foreign Scholarships, see ``Financial assistance'' 106.37 and ``Assistance to
`outside' discriminatory organizations'', 106.31(c)
Fraternities/Sororities
Social, [53, 27, 28]; 106.14(a)
Business/professional, [40, 53, 27, 28]; 106.31 (b) (7)
Honor societies, [40, 53]; 106.31(b) (7)
Fringe benefits, [67, 88, 89]; 106.56, 106.39
Part-time employees, [89]
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G
Grievance Procedure, see ``Designation of responsible employee'',
106.8(a), (b)
H
Health and Insurance Benefits and Services, [67, 88, 93]; 106.39,
106.56
Honor societies, [40, 53]; 106.31(b) (7)
Housing, 106.32
Generally, [42]; 106.32(b)
Provided by recipient, 106.32(b)
Other housing, [54]; 106.32(c)
J
Job Classification and Structure, 106.55
L
LEA's, [44]; 106.35
M
Marital and Parental Status
Employment
General, [85, 93, 94]; 106.57
Pregnancy, [85, 93, 94]; 106.57(b)
Pregnancy as a temporary disability, [85, 93, 94]; 106.57(c)
Pregnancy leave, [85, 93, 94]; 106.57(d)
Students
General, [49]; 106.40(a), (b)
Pregnancy and related conditions, [50]; 106.40(b) (1) (2) (3) (4) (5)
Class participation, [50]; 106.40(b) (1)
Physician certification, [50]; 106.40(b) (2)
Special classes, [50]; 106.40(b) (3)
Temporary leave, [50]; 106.40(b) (4), (5)
Membership Practices of Social fraternities and sororities, [27, 28, 53];
106.14(a)
Voluntary youth service organizations, [27, 28, 53]; 106.14(c)
YMCA, YWCA and others, [27, 28, 53]; 106.14(b)
Military and Merchant Marine Educational Institutions, [29]; 106.13
P
Pooling, see ``Financial Assistance'', 106.37
Pre-employment Inquiries
Marital status, [86, 95]; 106.60(a)
Sex, 106.60(b)
Preference in Admissions, [35]; 106.22
See also ``Remedial and Affirmative Action''
Pregnancy, Employment
General, [85, 93, 94]; 106.57
Pregnancy, [85, 93, 94]; 106.57(b)
Pregnancy as temporary disability, [85, 93, 94]; 106.57(c)
Pregnancy leave, [85, 93, 94]; 106.57(d)
Students
General, [49, 50]; 106.40 (a) and (b)
Pregnancy and related conditions; [50]; 106.40(b) (1) to (5)
Class Participation, [50, 55, 58]; 106.40(b) (1)
Physical certification, [50]; 106.40(b) (2)
Special class, [50]; 106.40 (b) (3)
Temporary leave, [50]; 106.40(b) (4), (5)
Private Undergraduate Professional Schools, [30]; 106.15(d)
Purpose of Regulation, [13]; 106.1
R
Real Property, 106.2(g)
Recruitment
Employment
Nondiscrimination, [83, 91]; 106.53(a)
Patterns, 106.53(b)
Student
Nondiscrimination, [34, 35]; 106.23(a)
Recruitment at certain institutions, 106.23 (b)
Religious Organizations
Application, [29, 28]; 106.12(a)
Exemption, [26]; 106.12(b)
Remedial and Affirmative Actions, [16, 17, 24]; 106.3
S
Scholarships, see ``Financial Assistance'', 106.37
Self-evaluation, [16, 22]; 106.3(c), (d)
Surplus Property (see Transfer of Property 106.5)
Duration of obligation 106.4(b)
Real Property 106.4(b) (1)
T
Textbooks and curricular materials, [52, 79, 80]; 106.42
Termination of funds, [10, 11]
Transfer of property, 106.5
Transition Plans
Content of plans, 106.17(b)
Different from Adjustment period, [78]; 106.41(d)
Submission of plans, 106.17(a)
Appendix A--Guidelines for Eliminating Discrimination and Denial of
Services on the Basis of Race, Color, National Origin, Sex, and Handicap in
Vocational Education Programs
Editorial Note: For the text of these guidelines, see 34 CFR part
100, appendix B.
[44 FR 17168, Mar. 21, 1979]
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