Title IX’s implementing regulations provide that a pregnant student is allowed leave as long as it is medically necessary. However, the term medically necessary is not defined in the implementing regulations. Absent some other leave or disability policy which would protect the pregnant student and guarantee her leave for childbirth or a pregnancy related condition, a school or university could deny a pregnant student leave if it feels the leave is not medically necessary.
In practice, the pregnant student will likely have to submit medical documentation from her physician to show that the leave is actually medically necessary. Until there are reported cases on the issue, the definition of medically necessary will likely vary from school to school and university to university. Just as an employer can deny a requested accommodation or a request for family medical leave, a school or university will likely be able to deny the pregnant student leave if it feels the leave is not medically necessary absent some other leave or disability policy.
Unlike other anti-discrimination laws, there is no guidance under Title IX about the school’s obligation to engage in the interactive process or how to proceed if there is a dispute regarding if the leave is actually medically necessary. By contrast, under the Americans with Disabilities Act (ADA) and the Americans with Disabilities Act Amendments (ADAAA), employers are required that to engage in the interactive process to see what, if any, accommodations , including potential leave, can be made. Moreover, The Family Medical Leave Act (FMLA) provides that if there is a dispute about an employee’s need for leave or a question about the doctor’s medical certification, the employer can require and pay for a second opinion from a doctor of the employer’s choosing- a third medical opinion being the tie breaker.
The implementing regulations are strong in the sense that they do provide leave protections for pregnant students. I anticipate that when actual cases are litigated over these regulations, courts will look to other statutes like the ADA and FMLA at least for some persuasive guidance of how to resolve a dispute over the medical necessity of the leave.
This article is not meant for specific legal advise. If you believe you have been discriminated against, you should contact a qualified attorney in your state.