(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 occupational 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 Educational Institutions, [30], 106.15(d), 106.2(n) General, 106.21(a), 106.2(p), Prohibitions relating to marital and parental status, [32, 36]; 106.21(c) Professional schools, [30], 106.2(m) Public institutions of undergraduate higher education, 106.15(e) Recruitment, [34, 35]; 106.23 Preference in admission, [35]; 106.22 Affirmative Action, see "Remedial and Affirmative Actions" Assistance to "outside" discriminatory organizations, [40, 53]; 106.31(b) (7), (c) Assurances, [18]; 106.4 Duration of obligation, 106.4(b) Athletics, [69 to 78]; 106.41 Adjustment period, [78]; 106.41(d) Equal opportunity, [76, 77]; 106.41(d) 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) Employee responsible for Title IX, see 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 Pregnancy as Temporary Disability, [85, Pregnancy Leave, [85, 93, 94]; 106.57(d) 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), F Federal Financial Assistance, 106.2(a) 106.37 Athletic Scholarships, [46, 64, 65]; 106.37(d) Non-need scholarships, [62]; 106.37(b) Sex-restrictive assistance through foreign Social, [53, 27, 28]; 106.14(a) Business/professional, [40, 53, 27, 28]; 106.31 Honor societies, [40, 53]; 106.31(b) (7) G Grievance Procedure, see "Designation of re- H Health and Insurance Benefits and Services, [67, 88, 93]; 106.39, 106.56 Honor societies, [40, 53]; 106.31(b) (7) Housing, 106.32 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 Marital and Parental Status 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(d) 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) YMCA, YWCA and others, [27, 28, 53]; Military and Merchant Marine Educational P Pooling, see "Financial Assistance", 106.37 Marital status, [86, 95]; 106.60(a) Preference in Admissions, [35]; 106.22 See also "Remedial and Affirmative Action" 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) 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 Real Property, 106.2(g) Recruitment Employment R Nondiscrimination, [83, 91]; 106.53(a) Patterns, 106.53(b) Student Nondiscrimination, [34, 35]; 106.23(a) Recruitment at certain institutions, 106.23 (b) Religious Organizations Application, [29, 28]; 106.12(a) Remedial and Affirmative Actions, [16, 17, 24]; 106.3 S Scholarships, see "Financial Assistance", 106.37 Self-evaluation, [16, 22]; 106.3(c), (d) Surplus Property (see Transfer of Property 106.5) Duration of obligation 106.4(b) Real Property 106.4(b) (1) T Textbooks and curricular materials, [52, 79, 80]; 106.42 Termination of funds, [10, 11] Transfer of property, 106.5 Transition Plans Content of plans, 106.17(b) Different from Adjustment period, [78]; 106.41(d) Submission of plans, 106.17(a) Subpart D-Investigation, Conciliation, and Enforcement Procedures 110.30 Compliance reviews. 110.31 Complaints. 110.32 Mediation. 110.33 Investigation. 110.34 Prohibition against intimidation or retaliation. 110.35 Compliance procedure. 110.36 Hearings, decisions, and post-termination proceedings. 110.37 Procedure for disbursal of funds to an alternate recipient. 110.38 Remedial action by recipients. 110.39 Exhaustion of administrative rem edies. AUTHORITY: 42 U.S.C. 6101 et seq., unless otherwise noted. SOURCE: 58 FR 40197, July 27, 1993, unless otherwise noted. Subpart A-General § 110.1 What is the purpose of ED's age discrimination regulations? The purpose of these regulations is to set out ED's rules for implementing the Age Discrimination Act of 1975. The Act prohibits discrimination on the basis of age in programs or activities receiving Federal financial assistance. The Act permits federally assisted programs or activities, and recipients of Federal funds, to continue to use age distinctions and factors other than age that meet the requirements of the Act. (Authority: 42 U.S.C. 6101-6103) [58 FR 40197, July 27, 1993, as amended at 65 FR 68056, Nov. 13, 2000] $110.2 To what programs or activities do these regulations apply? (a) These regulations apply to any program or activity receiving Federal financial assistance from ED. (b) These regulations do not apply to (1) An age distinction contained in that part of a Federal, State, or local statute or ordinance adopted by an elected, general purpose legislative body that (i) Provides any benefits or assistance to persons based on age; (ii) Establishes criteria for participation in age-related terms; or (iii) Describes intended beneficiaries or target groups in age-related terms; or (2) Any employment practice of any employer, employment agency, labor organization, or any labor-management joint apprenticeship training program, except any program or activity receiving Federal financial assistance for employment under the Job Training Partnership Act (29 U.S.C. 1501 et seq.). (Authority: 42 U.S.C. 6103) § 110.3 What definitions apply? The following definitions apply to these regulations: Act means the Age Discrimination Act of 1975, as amended (Title III of Pub. L. 94-135). Action means any act, activity, policy, rule, standard, or method of administration, or the use of any policy, rule, standard, or method of administration. Age means how old a person is, or the number of years from the date of a person's birth. means Age distinction means any action using age or an age-related term. Age-related term a word or words that necessarily imply a particular age or range of ages (e.g., "children,' "adult," "older persons,' but not "student" or "grade"). Agency means a Federal department or agency that is empowered to extend financial assistance. Applicant for Federal financial assistance means one who submits an application, request, or plan required to be approved by a Department official or by a recipient as a condition to becoming a recipient or subrecipient. Department means the United States Department of Education. ED means the United States Department of Education. Federal financial assistance means any grant, entitlement, loan, cooperative agreement, contract (other than a procurement contract or a contract of insurance or guaranty), or any other arrangement by which ED provides or otherwise makes available assistance in the form of (a) Funds; (b) Services of Federal personnel; or (c) Real and personal property or any interest in or use of property, including (1) Transfers or leases of property for less than fair market value or for reduced consideration; and (2) Proceeds from a subsequent transfer or lease of property if the Federal share of its fair market value is not returned to the Federal Government. Program or activity means all of the operations of— (a)(1) A department, agency, special purpose district, or other instrumentality of a State or local government; or (2) The entity of a State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government; (b)(1) A college, university, or other postsecondary institution, or a public system of higher education; or (2) A local educational agency (as defined in 20 U.S.C. 8801), system of vocational education, or other school system; (c)(1) An entire corporation, partnership, other private organization, or an entire sole proprietorship— (i) If assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or (ii) Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or (2) The entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or (d) Any other entity that is established by two or more of the entities described in paragraph (a), (b), or (c) of this section; any part of which is extended Federal financial assistance. (Authority: 42 U.S.C. 6107) Recipient means any State or its political subdivision, any instrumentality of a State or its political subdivision, any public or private agency, institution, organization, or other enti ty, or any person to which Federal financial assistance from ED is extended, directly or through another recipient. "Recipient" includes any successor, assignee, or transferee of a recipient, but excludes the ultimate beneficiary of the assistance. Secretary means the Secretary of Education, or his or her designee. Subrecipient means any of the entities in the definition of "recipient" to which a recipient extends or passes on Federal financial assistance. A subrecipient is generally regarded as a recipient of Federal financial assistance and has all the duties of a recipient in these regulations. United States means the fifty States, the Commonwealth of Puerto Rico, the District of Columbia, Guam, the Virgin Islands, American Samoa, Wake Island, the Trust Territory of the Pacific Islands, the Commonwealth of the Northern Mariana Islands, and the territories and possessions of the United States. (Authority: 42 U.S.C. 6103) [58 FR 40197, July 27, 1993, as amended at 65 FR 68056, Nov. 13, 2000] Subpart B-Standards for Determining Age Discrimination § 110.10 Rules against age discrimination. The rules stated in this section are subject to the exceptions contained in §§ 110.12 and 110.13 of these regulations. (a) General rule. No person in the United States shall, on the basis of age, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. (b) Specific rules. A recipient may not, in any program or activity receiving Federal financial assistance, directly or through contractual, licensing, or other arrangements, use age distinctions or take any other actions that have the effect, on the basis of age, of— (1) Excluding individuals from, denying them the benefits of, or subjecting them to discrimination under a program or activity receiving Federal financial assistance; or |