Title IX and Pregnancy Discrimination

Title IX, Education Amendments of 1972

(Title 20 U.S.C. Sections 1681-1688)

* DISCLAIMER: “Title IX and Pregnancy Discrimination” was written to be included in a book about pregnancy discrimination laws. Some of the information contained herein may no longer be valid. The material is intended as a general overview of Title IX pregnancy law for employment lawyers and not for any specific legal advice. If you have a specific legal question, you should consult with a qualified attorney.

 

Title IX of the Education Amendments of 1972, codified at 20 U.S.C. Sections 1681-1688, prohibits discrimination on the basis of sex in federally funded schools, educational programs, or activities.1 This prohibition includes discrimination on the basis of pregnancy and pregnancy related conditions.2

However, Congress left several ambiguities when it drafted Title IX, among which was whether an individual complaining about sex discrimination under Title IX could even bring a lawsuit. It was not until 1979, the year following the passage of the Pregnancy Discrimination Act, that the Supreme Court held that an individual had a private right of action to bring a lawsuit under Title IX.3 Even so, the lower courts were split as to what causes of action an individual could assert under Title IX and what remedies were available under Title IX.4

Yet, unlike Title VII, there was no debate among the courts about whether the definition of sex included pregnancy. The regulations implementing Title IX clearly state that pregnancy is included in Title IX’s definition of sex.5 Nevertheless, while it is clear that a pregnant or parenting student can bring a discrimination claim under Title IX,6 it is less certain if an employee complaining of pregnancy discrimination can do so as well. In the context of sex based discrimination, some courts have held that to the extent a Title IX plaintiff is asserting a discriminatory loss of employment benefit (i.e., loss of coaching duties or loss of pay), the claim must rest exclusively under Title VII and not Title IX.7 However, these courts have made a distinction between suits seeking money damages and those seeking declaratory or injunctive relief- the latter remaining an open question.8

That having been said, Title IX’s implementing regulations explicitly prohibit pregnancy discrimination.9 As a result, an individual complaining about pregnancy discrimination may be able to proceed with an employment claim where an individual complaining about other forms of gender discrimination in employment may not.10

As a practice pointer, since there are no conditions precedent to filing suit under Title IX11, an employee or applicant complaining about pregnancy discrimination for Title IX purposes, should nevertheless file a charge of discrimination with the EEOC in order to ensure that all conditions precedent are met and there are no grounds to throw out a PDA claim for failure to exhaust administrative remedies should a court determine that an employee’s or applicant’s remedy lies exclusively with the PDA.

Title IX’s implementing regulations are silent as to whether a reasonable accommodation for a pregnancy related disability is available under Title IX, although the implementing regulations state that pregnancy or a pregnancy related condition should be treated under the same policies as any other temporary disability or physical condition.

As a practice pointer, if the facts apply, the practitioner may wish to proceed with a claim under the Americans with Disabilities Act, pleading that the symptoms of the pregnancy, and not the pregnancy itself, rises to the level of disability. This approach appears to have succeeded in some instances.12

1 20 U.S.C. § 1681(a).

1 34 C.F.R. Part 106 et.seq.

3 Cannon v. University of Chicago, 441 U.S. 677(1979)(implied private right of action under Title IX).

4 Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60 (1992)(implied private right of action under Title IX for student harassed by teacher to seek money damages); and Jackson v. Birmingham Bd. Of Ed., 544 U.S. 167 (2005)  ( implied private right of action under Title IX  for employee to seek money damages for retaliation).

5 34 C.F.R. §§106.21, 106.40,106.57.

6 See i.e.,Chipman v. Grant County School District, 30 F.Supp.2d 975 (E.D.Ky. 1998)(female students moved for preliminary injunction after being excluded from national honor society after becoming pregnant and having children out of wedlock) .

7 Lowery v. Texas A & M University System, 117 F.3d 242 (5th Cir. 1997); Lakoski v. Thomas M. James, M.D., 66 F.3d 751 (5th Cir. 1995): Gisbon v. Hickman, 2 F.Supp.2d 1481 (M.D.Ga. 1998); Hazel v. School Board of Dade County, Florida, 7 F.Supp.2d 1349 (S.D.Fla. 1998); Cooper v. Gustavus Adolphus College, 957 F.Supp. 191 (D.Minn. 1997); Howard v. Board of Education of Sycamore Community Unit School District, 893 F.Supp. 808 (N.D.Ill. 1995); and Storey v. Board of Regents, 604 F.Supp. 1200 (W.D.Wis. 1985).

8 See North Haven Bd. of Ed. v. Bell, 456 U.S. 512 (1982). Bell addressed Title IX’s prohibition of employment discrimination in a challenge to the validity of administrative regulations. Bell was not a claim by an individual for money damages.

9 34 C.F.R. §§106.21, 106.40,106.57.

10 See i.e., Ivan v. Kent State University, 863 F.Supp. 581 (N.D.Ohio 1994)(graduate student’s loss of employment due to her pregnancy could be analyzed under Title IX).

11 Individuals complaining about Title IX violations can file an administrative complaint with the U.S. Department of Education, Office for Civil Rights. An administrative complaint must be filed within 180 days of the discrimination unless there is good cause to waive the filing deadline. U.S. Department of Education, Office for Civil Rights Case Processing Manual, §106.

12 See Darian v. University of Massachusetts Boston, 980 F.Supp. 77 (D.Mass. 1997) and Garrett v. Chicago School Reform Board of Trustees,  1996 WL 411319 (N.D.Ill.).

 

* DISCLAIMER: “Title IX and Pregnancy Discrimination” was written to be included in a book about pregnancy discrimination laws. Some of the information contained herein may no longer be valid. The material is intended as a general overview of Title IX pregnancy law for employment lawyers and not for any specific legal advice. If you have a specific legal question, you should consult with a qualified attorney.