The U.S. Department of Education’s Office for Civil Rights recently released a small guidance document with a big warning message to schools, colleges, and universities: Title IX requires educational institutions to protect their students and employees from discrimination on the basis of pregnancy, including pregnancy termination and recovery therefrom. That means schools cannot treat students or employees differently because they obtained an abortion. Schools must also treat abortion like any other temporary disability for hospital and medical benefits, services, plans, and policies. And, under Title IX, schools must provide leave to individuals for termination of pregnancy or recovery therefrom for as long as the student or employee’s physician says it is medically necessary. The guidance, issued on the 100th day after the U.S. Supreme Court overturned Roe v. Wade, does not provide new law. But it is a clear warning to schools that specific actions concerning students and employees seeking or who have received abortions could lead to administrative enforcement from OCR.

OCR’s October 2022 “fact sheet” reminds schools that Title IX’s prohibitions on discrimination based on termination of pregnancy have been in place since 1975. Presumably seeking to head off claims that OCR’s interpretation of the law is overreach, the fact sheet highlights that the regulations that include that interpretation were subject to Congressional review. The fact sheet then addresses three categories of potential discrimination:

1. Discrimination and exclusion from the education program or activity, including any class or extracurricular activity, based on pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom. That includes harassment by third parties and actions by teachers and other employees with respect to academic requirements.
2. Medical and other benefits and services, meaning treating pregnancy, childbirth, false pregnancy, termination of pregnancy, and recovery therefrom differently than other temporary disabilities with respect to hospital or medical benefits, services, plans, and policies for students.
3. Leave policy, meaning that if other leave is not available, a school must provide leave for pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom for as long as the individual’s physician deems medically necessary. Similarly, schools cannot treat requests for leave related to abortion differently than other temporary disabilities with respect to commencement, duration, and extensions of leave, payment of disability income, accrual of seniority or any other benefit or service, and reinstatement, along with any other employment-based benefits.

The guidance is among many recent actions by the Biden administration indicating a focus on pregnancy and parenting issues. Schools should promptly review policies and procedures relating to pregnancy and parenting, including those addressing services for students or employees who are seeking to or who have terminated a pregnancy, for compliance with Title IX’s requirements. For assistance, please contact any Thompson & Horton Title IX attorney.