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$ 106.52 Employment criteria.

which are performed under similar working conditions.

(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682)

§ 106.55 Job classification and struc

ture.

A recipient shall not administer or operate any test or other criterion for any employment opportunity which has a disproportionately adverse effect on persons on the basis of sex unless:

(a) Use of such test or other criterion is shown to predict validly successful performance in the position in question; and

(b) Alternative tests or criteria for such purpose, which do not have such disproportionately adverse effect, are shown to be unavailable.

(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682)

A recipient shall not:

(a) Classify a job as being for males or for females;

(b) Maintain or establish separate lines of progression, seniority lists, career ladders, or tenure systems based on sex; or

(c) Maintain or establish separate lines of progression, seniority systems, career ladders, or tenure systems for similar jobs, position descriptions, or job requirements which classify persons on the basis of sex, unless sex is a bona-fide occupational qualification for the positions in question as set forth in § 106.61.

$ 106.53 Recruitment.

(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682)

(a) Nondiscriminatory recruitment and hiring. A recipient shall not discriminate on the basis of sex in the recruitment and hiring of employees. Where a recipient has been found to be presently discriminating on the basis of sex in the recruitment or hiring of employees, or has been found to have in the past so discriminated, the recipient shall recruit members of the sex so discriminated against so as to overcome the effects of such past or present discrimination.

(b) Recruitment patterns. A recipient shall not recruit primarily or exclusively at entities which furnish as applicants only or predominantly members of one sex if such actions have the effect of discriminating on the basis of sex in violation of this subpart.

(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682)

§ 106.56 Fringe benefits.

(a) Fringe benefits defined. For purposes of this part, fringe benefits means: Any medical, hospital, accident, life insurance or retirement benefit, service, policy or plan, any profit-sharing or bonus plan, leave, and any other benefit or service of employment not subject to the provision of $ 106.54.

(b) Prohibitions. A recipient shall not:

(1) Discriminate on the basis of sex with regard to making fringe benefits available to employees or make fringe benefits available to spouses, families, or dependents of employees differently upon the basis of the employee's sex;

(2) Administer, operate, offer, or participate in a fringe benefit plan which does not provide either for equal periodic benefits for members of each sex, or for equal contributions to the plan by such recipient for members of each sex; or

(3) Administer, operate, offer, or participate in a pension or retirement plan which establishes different optional or compulsory retirement ages based on

$ 106.54 Compensation.

A recipient shall not make or enforce any policy or practice which, on the basis of sex:

(a) Makes distinctions in rates of pay or other compensation;

(b) Results in the payment of wages to employees of one sex at a rate less than that paid to employees of the opposite sex for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and

sex or which otherwise discriminates in benefits on the basis of sex.

ties, or any other right or privilege of employment.

(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682)

(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682)

$ 106.58 Effect of State or local law or

other requirements. (a) Prohibitory requirements. The obligation to comply with this subpart is not obviated or alleviated by the existence of any State or local law or other requirement which imposes prohibitions or limits upon employment of members of one sex which are not imposed upon members of the other sex.

(b) Benefits. A recipient which provides any compensation, service, or benefit to members of one sex pursuant to a State or local law or other requirement shall provide the same compensation, service, or benefit to members of the other sex.

(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682)

§ 106.57 Marital or parental status.

(a) General. A recipient shall not apply any policy or take any employment action:

(1) Concerning the potential marital, parental, or family status of an employee or applicant for employment which treats persons differently on the basis of sex, or

(2) Which is based upon whether an employee or applicant for employment is the head of household or principal wage earner in such employee's or applicant's family unit.

(b) Pregnancy. A recipient shall not discriminate against or exclude from employment any employee or applicant for employment on the basis of pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom.

(c) Pregnancy as a temporary disability. A recipient shall treat pregnancy, childbirth, false

pregnancy, termination of pregnancy, and recovery therefrom and any temporary disability resulting therefrom as any other temporary disability for all job related purposes, including commencement, duration and extensions of leave, payment of disability income, accrual of seniority and any other benefit or service, and reinstatement, and under any fringe benefit offered to employees by virtue of employment.

(d) Pregnancy leave. In the case of a recipient which does not maintain a leave policy for its employees, or in the case of an employee with insufficient leave or accrued employment time to qualify for leave under such a policy, a recipient shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy and recovery therefrom as a justification for a leave of absence without pay for a reasonable period of time, at the conclusion of which the employee shall be reinstated to the status which she held when the leave began or to a comparable position, without decrease in rate of compensation or loss of promotional opportuni

§ 106.59 Advertising.

A recipient shall not in any advertising related to employment indicate preference, limitation, specification, or discrimination based on sex unless sex is a bona-fide occupational qualification for the particular job in question.

(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682)

§ 106.60 Pre-employment inquiries.

(a) Marital status. A recipient shall not make pre-employment inquiry as to the marital status of an applicant for employment, including whether such applicant is “Miss or Mrs."

(b) Sex. A recipient may make preemployment inquiry as to the sex of an applicant for employment, but only if such inquiry is made equally of such applicants of both sexes and if the results of such inquiry are not used in connection with discrimination prohibited by this part.

(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682)

§ 106.61 Sex as a bona-fide occupa

tional qualification. A recipient may take action otherwise prohibited by this subpart provided it is shown that sex is a bona-fide occupational qualification for that action, such that consideration of sex with regard to such action is essential to successful operation of the employment function concerned. A recipient shall not take action pursuant to this section which is based upon alleged comparative employment characteristics or stereotyped characterizations of one or the other sex, or upon preference based on sex of the recipient, employees, students, or other persons, but nothing contained in this section shall prevent a recipient from considering an employee's sex in relation to employment in a locker room or toilet facility used only by members of one

Prohibitions relating to marital and paren

tal status, [32, 36); 106.21(c) Professional schools, [30], 106.2(m) Public institutions of undergraduate high

er education, 106.15(e) Recruitment, [34, 35); 106.23 Specific prohibitions, 106.21(b) Tests, [31]; 106.21(b) (2)

Preference in admission, [35]; 106.22 Advertising, 106.59 Affirmative Action, see "Remedial and Af

firmative Actions" Assistance to "outside" discriminatory orga

nizations, [40, 53]; 106.31(b) (7), (c) Assurances, [18]; 106.4

Duration of obligation, 106.4(b)

Form, 106.4(c)
Athletics, [69 to 78]; 106.41

Adjustment period, [78]; 106.41(d)
Contact sport defined, 106.41(d)
Equal opportunity, [76, 77]; 106.41(d)
Determining factors, 106.41(c) (i) to (x)
Equipment, 106.41(c)
Expenditures, 106.41(c)
Facilities, 106.41(c)
Travel, 106.41(c)
Scholarships, [64, 65]; 106.37(d)
General, [69, 70, 71, 72, 73, 74, 75]; 106.41(a)
Separate teams, [75]; 106.41(b)

sex.

(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682

B

BFOQ, [96]; 106.61

Subpart Procedures (Interim)

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$ 106.71 Procedures.

Comparable facilities

The procedural provisions applicable to title VI of the Civil Rights Act of 1964 are hereby adopted and incorporated herein by reference. These procedures may be found at 34 CFR 100.6– 100.11 and 34 CFR, part 101.

(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682)

Housing, [42, 54]; 106.32

Other, 106.33, 106.35(b) Compensation, [84, 87, 92]; 106.54 Counseling

Disproportionate classes, [45, 59]; 106.36(c) General, [45, 59); 106.36(a)

Materials, [45, 59]; 106.36(b)
Course Offerings

Adjustment period, [55]; 106.34(a) (i)
General, [7, 43); 106.34
Music classes, [43]; 106.34(f)
Physical education, [43, 56, 58];

Sex education, [43, 57]; 106.34(e)
Coverage, [5]; 106.11 to 106.17

Exemptions
Curricular materials, [52]; 106.42(a)

SUBJECT INDEX TO TITLE IX PREAMBLE AND REGULATION

1

A

D

Access to Course Offerings [43, 55, 56, 57, 58);

106.34 Access to Schools Operated by LEA's, [44];

106.35 Admissions, [5, 6, 30]; 106.15, 106.21 Affirmative and remedial action, [16, 17,

24); 106.3(a); (b) Administratively separate units, [30];

106.15(b) 106.2(0) Educational Institutions, [30], 106.15(d),

, 106.2(n) General, 106.21(a), 106.2(p),

Definitions, [14, 15); 106.2 (a) to (r) Designation of responsible employee, [20, 22];

106.8(a), (b)
Dissemination of policy, [21]; 106.9

Distribution, 106.9(C)
Notification of policy, [21]; 106.9(a)

Publications, 106.9(b)
Dress codes 106.31(b) (4)

E

are

in

1 Preamble paragraph numbers brackets [ ].

Education Institutions
Controlled by

by religious organizations, 106.12

Generally, [42]; 106.32(b)
Provided by recipient, 106.32(b)
Other housing, (54); 106.32(C)

J

Job Classification and Structure, 106.55

L

LEA'S, [44]; 106.35

M

Application, [28, 29); 106.12(a)

Exemption, [26]; 106.12(b)
Education Program and Activities
Benefiting from Federal financial assist-

ance, (10, 11); 106.11
General, (10, 11, 53); 106.31(a)
Programs not operated by recipient, [41,

54]; 106.31(c)
Specific prohibitions, [38, 39, 40, 53); 106.31

(b)
Effective Date, [3]
Employee responsible for Title IX, see

"Designation of Responsible Employee"
Employment

Advertising, 106.59
Application, 106.51(b)
Compensation, [84, 92); 106.54
Employment criteria, 106.52
Fringe benefits, [88, 89); 106.56
General, [81, 82, 87]; 106.51
Job Classification and Structure, 106.55
Marital and Parental Status, 106.57
Pregnancy, [85, 93]; 106.57(b)
Pregnancy as Temporary Disability, [85,

93]; 106.57(c)
Pregnancy Leave, [85, 93, 94]; 106.57(d)
Pre-Employment Inquiry

Recruitment, [83, 90, 91, 95]
Sex as a BFOQ, [96]; 106.61
Student Employment, [66]; 106.38

Tenure, 106.51(b) (2)
Exemptions, [5, 27, 28, 29, 30, 53); 106.12(b),

106.13, 106.14, 106.15(a), 106.15(d), 106.16

Marital and Parental Status

Employment
General, [85, 93, 94); 106.57
Pregnancy, [85, 93, 94]; 106.57(b)
Pregnancy as a temporary disability, [85,

93, 94); 106.57(c)
Pregnancy leave, [85, 93, 94]; 106.57(a)
Students
General, [49]; 106.40(a), (b)
Pregnancy and related conditions, [50];

106.40(b) (1) (2) (3) (4) (5)
Class participation, [50]; 106.40(b) (1)
Physician certification, [50]; 106.40(b) (2)
Special classes, [50]; 106.40(b) (3)

Temporary leave, [50]; 106.40(b) (4), (5)
Membership Practices of Social fraternities

and sororities, [27, 28, 53); 106.14(a)
Voluntary youth service organizations, [27,

28, 53); 106.14(c)
YMCA, YWCA and others, [27, 28, 53];

106.14(b)
Military and Merchant Marine Educational

Institutions, [29]; 106.13

F

P

Federal Financial Assistance, 106.2(a)
Financial Assistance to students, [46, 60, 61];

106.37
Athletic Scholarships, [46, 64, 65); 106.37(d)
Foreign institutions, study at [63]; 106.31(c)
General, 106.37
Non-need scholarships, [62]; 106.37(b)
Pooling of sex-restrictive, [46, 61, 62]; ;

106.37(b)
Sex-restrictive assistance through foreign

or domestic wills [46, 61, 62]; 106.37(b)
Foreign Scholarships, see "Financial assist-

ance" 106.37 and "Assistance to 'outside'

discriminatory organizations", 106.31(c)
Fraternities/Sororities

Social, [53, 27, 28]; 106.14(a)
Business/professional, [40, 53, 27, 28); 106.31

(b) (7)
Honor societies, [40, 53); 106.31(b) (7)
Fringe benefits, [67, 88, 89); 106.56, 106.39

Part-time employees, [89]

Pooling, see “Financial Assistance", 106.37
Pre-employment Inquiries

Marital status, [86, 95); 106.60(a)

Sex, 106.60(b)
Preference in Admissions, [35]; 106.22
See also “Remedial and Affirmative AC-

tion"
Pregnancy, Employment

General, [85, 93, 94]; 106.57
Pregnancy, [85, 93, 94]; 106.57(b)
Pregnancy as temporary disability, [85, 93,

94]; 106.57(C)
Pregnancy leave, [85, 93, 94); 106.57(d)
Students
General, (49, 50]; 106.40 (a) and (b)
Pregnancy and related conditions; [50];

106.40(b) (1) to (5)
Class Participation, [50, 55, 58]; 106.40(b) (1)
Physical certification, [50]; 106.40(b) (2)
Special class, [50]; 106.40 (b) (3)

Temporary leave, [50]; 106.40(b) (4), (5)
Private Undergraduate Professional Schools,

[30]; 106.15(d)
Purpose of Regulation, [13]; 106.1

G

Grievance Procedure, see "Designation of re-

sponsible employee”, 106.8(a), (b)

H

R

Health and Insurance Benefits and Services,

[67, 88, 93]; 106.39, 106.56
Honor societies, [40, 53); 106.31(b) (7)
Housing, 106.32

Real Property, 106.2(g)
Recruitment

Employment
Nondiscrimination, [83, 91]; 106.53(a)

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