Over the last several years, we have seen an increase in focus on the rights of pregnant and parenting people on campus in higher education—from a string of recent Office for Civil Rights (OCR) resolutions, to new federal employment legislation, to the 2022 proposed Title IX regulations. Then, in April, both the Equal Employment Opportunity Commission (EEOC) and Department of Education issued final rules related to pregnant workers and students. First, the EEOC issued its Final rules under the Pregnant Workers Fairness Act (PWFA) on April 15, 2024, and just days later, the Department of Education issued its Final Title IX Rules on April 19, 2024. Both regulations have essential information on the rights of community members on campus.
EEOC Final Rules on the PWFA
In August, we let you know that the EEOC published a notice of Proposed Rulemaking to implement the PWFA. The deadline to submit public comments expired October 10, 2023. The EEOC finished its review of approximately 100,000 public comments and, on April 15, 2024, issued its Final Rule and interpretative guidance to the Final Rule. The Final Rule will go into effect on June 18, 2024. The PWFA requires employers with 15 or more employees to provide reasonable accommodations to employees and applicants for known limitations related to pregnancy, childbirth, and related medical conditions unless the accommodation would pose an undue hardship.
The robust regulations clarify the rights of employees and obligations of employers under the PWFA. While the Final Rule touches on many elements of the PWFA, the Final Rule’s clarifications regarding reasonable accommodations are particularly important for colleges and universities. First, the Final Rule states that the “covered entity” must “make reasonable accommodation to the known limitations of a qualified employee related to pregnancy, childbirth or related medical conditions, absent undue hardship.” (§ 1636.1(b)(1)). In many respects, this component of the rule mimics the Americans with Disabilities Act (ADA)—this is evident in the Final Rule’s definition of a “qualified employee” as an individual who, with or without reasonable accommodation” can perform the “essential functions” of their role. (§ 1636.3(f)). The Final Rule defines “known limitation” as a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth or related medical condition,” regardless of whether the condition meets the ADA’s definition of a disability. (§ 1636.3(a)). A condition is “known” if the employee or a representative of the employee communicated this limitation to the employer (i.e., someone with supervisory authority). (§§ 1636.3(a)(1) and (d)).
The Final Rule also clarifies that related medical conditions are conditions that relate to the specific employee in question. (§ 1636.3(b)). As examples, the regulations provide a non-exhaustive list of possible related conditions including termination of pregnancy (inclusive of miscarriage, stillbirth, or abortion), gestational diabetes, preeclampsia, anemia, endometriosis, sciatica, and lactation conditions (e.g., low milk supply, mastitis, or fungal infections). Importantly, the regulations state that an unnecessary delay in implementing accommodations could be a violation of the PWFA. The Final Rule, like the proposed rule, provides examples of possible reasonable accommodations—like breaks, using a stool, telework, and time off to recover from childbirth.
In addition to the requirement that covered entities provide reasonable accommodations, the regulations also prohibit an employer from requiring that an employee accept an accommodation, and further prohibit retaliation and coercion.
Final Title IX Regulations
On April 29, 2024, the Department of Education published the official Final 2024 Title IX Regulations in the Federal Register, which go into effect on August 1, 2024. These long-awaited regulations include significant updates to the regulations related to pregnant and parenting students and employees at institutions receiving federal financial assistance. While the Title IX regulations have always included provisions relating to prohibited discrimination based on pregnancy or marital status, the 2024 Final Title IX Regulations are the first revisions to these provisions since the 1970s.
At the beginning of the academic year, we discussed the steps institutions are obligated to take for students under the 2020 Regulations, and those obligations have not changed significantly. However, the Final Regulations include some new obligations for Title IX Coordinators and Employees, provide definitions for related terms, and provide clarity on an institution’s obligations to provide reasonable modifications.
Definitions of Parental Status and Pregnancy and Related Conditions
First, the Department of Education provided two definitions relevant to this topic. In 106.20, the Department defined “Parental Status” as:
the status of a person who, with respect to another person who is under the age of 18 or who is 18 or older but is incapable of self-care because of a physical or mental disability, is:
- A biological parent;
- An adoptive parent;
- A foster parent;
- A stepparent;
- A legal custodian or guardian;
- In loco parentis with respect to such a person; or
- Actively seeking legal custody, guardianship, visitation, or adoption of such a person.
The Department also defined “pregnancy or related conditions” as pregnancy, childbirth, termination of pregnancy, or lactation, medical conditions related to those events, or recovery from those events.
The Department previously indicated that these definitional clarifications were included, in part, to address ambiguity by removing dated language in the existing regulations; for example, removing the term “false pregnancy.”
Reasonable Modifications
The most substantial updates to the Regulations are in 34 CFR 106.40(b) regarding reasonable modifications. Under the regulations, a recipient must make reasonable modifications to the education program or activity based on the student’s "individualized needs.” To determine reasonableness of the modification, the Department noted that “the recipient must consult with the student.” However, if the recipient can demonstrate that the modification would “fundamentally alter” the nature of the education program or activity, then the modification is not “reasonable.”
As examples of reasonable modifications, the Department included a non-exhaustive list of modifications in 106.40(b)(3)(ii)(C). These examples include providing breaks for lactation or to attend to health needs, intermittent absences to attend medical appointments, access to online or homebound education, extension of time for coursework, rescheduling of exams or tests, using a footrest, or other changes to policies, practices, and procedures.
Importantly, the Department also included a provision stating that recipients “must not require supporting documentation under paragraphs (b)(3)(ii)-(v) unless the documentation is necessary and reasonable for the recipient to determine the reasonable modifications." The Department stated that requiring supporting documentation is not reasonable when, for example, a student requests a bigger uniform, when the student has previously provided supporting documentation, or when allowing restroom or lactation breaks, or taking a break to eat or drink, or to stand or sit for periods of time.
Role of the Title IX Office and Employees
Under 34 CFR 106.40(b)(2) when an employee is informed by a student or a person with the “legal right to act on behalf of the student” of a student’s pregnancy or related condition, the employee is obligated to provide the student with the Title IX Coordinator’s contact information and inform the student that the Title IX Coordinator is responsible for coordinating actions to prevent discrimination based on sex and to ensure equal access to the education program or activity.
Once the Title IX Coordinator has been notified of the pregnancy or related condition by the student or the person with a legal right to act on behalf of the student, the Title IX Coordinator must provide the student with information about the recipient’s obligations under 106.40(b)(1)-(5).
The mandatory referral to the Title IX Coordinator is a new addition to the Regulations and will require institutions to ensure employees are trained on this important obligation.
What's Next?
In recent days, both the EEOC Regulations and the Title IX Regulations have been sued by states attorneys general seeking to stop the implementation of the regulations and challenging their respective constitutionality. On April 25, 2024, seventeen states sued the EEOC over the PWFA rules. Additionally, Idaho, Louisiana, Mississippi, Montana, Alabama, Florida, Georgia, and South Carolina have also sued the Department of Education over the 2024 Title IX Regulations. We are closely following these lawsuits and will provide updates as we learn more.
In the interim, institutions should be examining their policies, practices, and procedures to ensure alignment with the new PWFA and TIX Regulations. Institutions should also ensure their employees, Title IX, and HR staff are trained regarding their obligations.
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