By Mikiba W. Morehead, M.A., Ed.D., Consultant, TNG
The October 2022 release of the Department of Education’s resource for students and schools on Discrimination Based on Pregnancy and Related Conditions reminds Title IX Coordinators of their responsibility to address all forms of sex- and gender-based discrimination, including discrimination based on an individual’s pregnancy status or pregnancy-related conditions. The federal regulations, as well as previous Dear Colleague Letters from the Office for Civil Rights (OCR), are clear that Title IX protects both students and employees from discrimination based on “pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery therefrom.” This means that schools must take active steps to stop, prevent, and remedy pregnancy-based discrimination against school community members.
Some of the more familiar steps that schools are required to take include posting a pregnancy-focused notice of nondiscrimination, ensuring that pregnant students are not excluded from the school’s education program or activity, and ensuring that pregnant employees (including applicants) are not excluded from employment or promotion opportunities. Although pregnancy, in and of itself, is not a disability, some community members may experience pregnancy-related health conditions that cause substantial limitations and/or require additional medical care. In these circumstances, schools must 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. Therefore, schools have an obligation under the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Action, and Title IX to provide reasonable accommodations for pregnancy-related medical conditions.
The COVID-19 pandemic has taught us how flexible our education and work environments can be when necessary. During quarantine, virtual learning and remote work were indispensable. Post-pandemic, hybrid models have become commonplace and with that, a change to the idea of what may be “reasonable” when evaluating requests for academic or work accommodations based on a disability. Schools are now positioned to provide more accommodations than previously thought possible.
Many of the limitations imposed by claims of fundamental alteration to the essential content of an academic course of study or an employee’s job functions have been erased. The bar to deny accommodations on the basis of undue hardship has been raised. As a result, there is much more flexibility in how accommodations can be implemented and there is more room for creativity when contemplating how our environments might be modified to allow individuals with disabilities to continue their academic progress or complete primary work duties from a distance.
Accessibility/disability services providers and Title IX Coordinators can apply the lessons learned during COVID when considering the accommodation requests of pregnant students and employees. While Title IX lays the foundation by establishing what we must do, ATIXA encourages all Title IX Coordinators to reach beyond the floor of compliance by envisioning what more institutions can and should do to support pregnant and parenting community members.
Additional Areas for Consideration
- Non-medical childcare needs. The provision of reasonable accommodations under Title IX is limited to circumstances where an individual has a pregnancy-related medical necessity. That medical necessity may be on the part of the birthing parent or based on the medical needs of the child arising from the birthing process. But what about situations where modifications are requested for childcare or where there is no identified medical necessity?
In short, these types of modification requests are not covered by Title IX. However, the requests are usually for excused absences, remote learning options, or access to a hybrid work environment based on the desire or need to have more time at home for childcare. While quarantined during COVID, many students and employees found ways to fulfill their academic and/or work responsibilities remotely while also fulfilling their parental responsibilities. Whether these same types of modifications post-COVID are feasible will depend upon whether implementing a remote option or excused absence is acceptable for a specific course or job duty, results in a fundamental alteration, or creates an undue institutional burden. Title IX Coordinators may choose to engage in a case-by-case evaluation of the circumstances to determine if the requested modifications are reasonable and appropriate for approval on a temporary basis. Any temporary modifications should have clear start and end dates and other applicable parameters outlined and agreed upon by both the institution and the student or employee prior to implementation. It should be clarified that such modifications will not be available for the duration or enrollment or employment.
- Support for non-birthing parents. Title IX is one of the most impactful equity laws in the United States. Its scope and reach of protections extend to all individuals within a school’s education program and activity, including employment. However, Title IX’s protections for pregnant and parenting community members are often narrowly applied to only the pregnant individual or birthing parent. This narrow read of Title IX overlooks the principle of equity inherent in the spirit of the law.
Title IX Coordinators may receive requests from non-birthing parents for access to accommodations, modifications, or other supportive measures for pregnancy, childbirth, false pregnancy, termination of pregnancy, recovery, or other parenting-related needs. These may include circumstances where children of the non-birthing parent have birth-related medical needs, or where the non-birthing parent has obligations to care for a birthing parent who has complications or other medical needs related to their pregnancy or the birthing process. These requests may also come from students or employees who have similar needs or obligations based on parental status associated with adoption, surrogacy, or guardianship. Title IX Coordinators may again choose to engage in an individualized evaluation of the circumstances to determine if the requested accommodations or modifications are reasonable and appropriate for approval on a temporary basis.
- Accommodations for Fertility Treatments/IVF. Individuals seeking to become pregnant through fertility treatments such as in vitro fertilization (IVF) are requesting accommodations more frequently. Usually, these requests are for assistance with making up missed classes and/or assignments that result from medical appointments or for excused absences for treatment-related illness. In these circumstances, institutions will want to extend the same considerations afforded to individuals with other short-term or temporary disabilities. Therefore, reasonable modifications to classroom policies or general attendance requirements may be protected by Title IX or covered under another institutional policy. Title IX Coordinators will need to first ascertain whether a doctors’ appointment is medically necessary. The nature of fertility treatments may require individuals to schedule medical appointments at a specific time, which may conflict with that individual’s academic or work schedule. When this occurs, a doctor’s note will likely cover the pregnancy-related medical necessity of the appointment and therefore evoke protection under Title IX. However, most regular check-ups will likely not be deemed medically necessary under Title IX because routine appointments can usually be scheduled around academic or work requirements or at the least impactful time of day.
When the request is made with regard to absences resulting from treatment-related illness, Title IX Coordinators will need to establish – through documentation from the medical provider – a nexus between the fertility treatment and the resulting illness, symptoms, or condition. Additionally, Title IX Coordinators should not forget the “recovery therefrom” aspect of the regulation when considering modifications in this context. Undergoing fertility treatment can be grueling and may require modifications or other supportive measures to assist with recovery.
- Student leave policies. Unlike employees, students usually do not have access to sick, vacation, or personal leave. Title IX fills this gap for students who may need to take leave based on pregnancy or pregnancy-related medical conditions. The length of leave will depend on the amount of time deemed medically necessary by the student’s medical provider. Title IX Coordinators may need to either develop student leave policies that cover leaves of absence for pregnancy and pregnancy-related conditions or ensure this type of leave is explicitly addressed by existing student leave policies. Additionally, Title IX Coordinators may require a re-entry process for students returning from a pregnancy-related leave, but only if they are not requiring anything different than what is required for students returning from other types of medical leave. Reasonable modifications to the student’s academic or extracurricular environment may be necessary to ensure the student is reinstated to the same academic and extracurricular status they held when the leave began.
Post-pandemic, Title IX Coordinators have more ability to support pregnant and parenting community members through the application of reasonable modifications to the work and leaning environments. Moreover, Title IX Coordinators can lean into Title IX’s equity principle by extending protections to requests from non-birthing parents and other individuals with pregnancy or related needs who have traditionally been excluded from consideration. Title IX grievance processes must be available and clearly articulated, to address any complaints from individuals who are denied the protections afforded by law.
For further discussion about supporting pregnant and parenting students, register for ATIXA’s next Time with IX event — The “Cycle of Under-Support” and How to Protect Pregnant and Parenting Students —on Jan. 20, 2023.
For more Tip of the Week insight, visit the ATIXA blog.
 34 C.F.R. § 106.40