Federal Coordination And Compliance Section

[Code of Federal Regulations] [Title 45, Volume 1] [Revised as of October 1, 2001] From the U.S. Government Printing Office via GPO Access [CITE: 45CFR86]  [Page 380-398]                           TITLE 45--PUBLIC WELFARE                       SUBTITLE A--DEPARTMENT OF HEALTH                            AND HUMAN SERVICES   PART 86--NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS AND ACTIVITIES RECEIVING OR BENEFITING FROM                 FEDERAL FINANCIAL ASSISTANCE                           Subpart A--Introduction  Sec. 86.1  Purpose and effective date. 86.2  Definitions. 86.3  Remedial and affirmative action and self-evaluation. 86.4  Assurance required. 86.5  Transfers of property. 86.6  Effect of other requirements. 86.7  Effect of employment opportunities. 86.8  Designation of responsible employee and adoption of grievance            procedures. 86.9  Dissemination of policy.                             Subpart B--Coverage  86.11  Application. 86.12  Educational institutions controlled by religious organizations. 86.13  Military and merchant marine educational institutions. 86.14  Membership practices of certain organizations. 86.15  Admissions. 86.16  Educational institutions eligible to submit transition plans. 86.17  Transition plans. 86.18--86.20  [Reserved]       Subpart C--Discrimination on the Basis of Sex In Admission and                           Recruitment Prohibited  86.21  Admission. 86.22  Preference in admission. 86.23  Recruitment. 86.24--86.30  [Reserved]  Subpart D--Discrimination on the Basis of Sex in Education Programs and                            Activities Prohibited  86.31  Education programs and activities. 86.32  Housing. 86.33  Comparable facilities. 86.34  Access to course offerings. 86.35  Access to schools operated by L.E.A.s. 86.36  Counseling and use of appraisal and counseling materials. 86.37  Financial assistance. 86.38  Employment assistance to students. 86.39  Health and insurance benefits and services. 86.40  Marital or parental status. 86.41  Athletics. 86.42  Textbooks and curricular material. 86.43--86.50  [Reserved]    Subpart E--Discrimination on the Basis of Sex In Employment in Education                     Programs and Activities Prohibited  86.51  Employment. 86.52  Employment criteria. 86.53  Recruitment. 86.54  Compensation. 86.55  Job classification and structure. 86.56  Fringe benefits. 86.57  Marital or parental status. 86.58  Effect of State or local law or other requirements. 86.59  Advertising. 86.60  Pre-employment inquiries. 86.61  Sex as bona-fide occupational qualification. 86.62--86.70  [Reserved]                       Subpart F--Procedures [Interim]  86.71  Interim procedures.  Subject Index to Title IX Preamble and Regulation Appendix A to Part 86--Guidelines For Eliminating Discrimination and            Denial of Services on the Basis of Race, Color, National            Origin, Sex, and Handicap in Vocational Education Programs            [Note]      Source: 40 FR 24137, June 4, 1975, unless otherwise noted.                           Subpart A--Introduction  Sec. 86.1  Purpose and effective date.      The purpose of this part is to effectuate title IX of the Education  Amendments of 1972, as amended by Pub. L. 93-568, 88 Stat. 1855 (except  sections 904 and 906 of those Amendments) which is designed to eliminate  (with certain exceptions) discrimination on the basis of sex in any  education program or activity receiving Federal financial assistance,  whether or not such program or activity is offered or sponsored by an  educational institution as defined in this part. This part is also  intended to effectuate section 844 of the Education Amendments of 1974,  Pub. L. 93-380, 88 Stat. 484. The effective date of this part shall be  July 21, 1975.  (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20  U.S.C. 1681, 1682, as amended by Pub. L. 93-568, 88 Stat. 1855, and sec.  844, Education Amendments of 1974, 88 Stat. 484, Pub. L. 93-380)  Sec. 86.2  Definitions.      As used in this part, the term--     (a) Title IX means title IX of the Education Amendments of 1972,  Pub. L. 92-318, as amended by section 3 of Pub. L. 93-568, 88 Stat.  1855, except sections 904 and 906 thereof; 20 U.S.C. 1681, 1682, 1683,  1685, 1686.     (b) Department means the Department of Health and Human Services.     (c) Secretary means the Secretary of Health and Human Services.     (d) Director means the Director of the Office for Civil Rights of  the Department.     (e) Reviewing Authority means that component of the Department  delegated authority by the Secretary to appoint, and to review the  decisions of, administrative law judges in cases arising under this  part.     (f) Administrative law judge means a person appointed by the  reviewing authority to preside over a hearing held under this part.     (g) Federal financial assistance means any of the following, when  authorized or extended under a law administered by the Department:     (1) A grant or loan of Federal financial assistance, including funds  made available for:     (i) The acquisition, construction, renovation, restoration, or  repair of a building or facility or any portion thereof; and     (ii) Scholarships, loans, grants, wages or other funds extended to  any entity for payment to or on behalf of students admitted to that  entity, or extended directly to such students for payment to that  entity.     (2) A grant of Federal real or personal property or any interest  therein, including surplus property, and the proceeds of the sale or  transfer of such property, if the Federal share of the fair market value  of the property is not, upon such sale or transfer, properly accounted  for to the Federal Government.     (3) Provision of the services of Federal personnel.     (4) Sale or lease of Federal property or any interest therein at  nominal consideration, or at consideration reduced for the purpose of  assisting the recipient or in recognition of public interest to be  served thereby, or permission to use Federal property or any interest  therein without consideration.        (5) Any other contract, agreement, or arrangement which has as one  of its purposes the provision of assistance to any education program or  activity, except a contract of insurance or guaranty.     (h) Recipient means any State or political subdivision thereof, or  any instrumentality of a State or political subdivision thereof, any  public or private agency, institution, or organization, or other entity,  or any person, to whom Federal financial assistance is extended directly  or through another recipient and which operates an education program or  activity which receives or benefits from such assistance, including any  subunit, successor, assignee, or transferee thereof.     (i) Applicant 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.     (j) Educational institution means a local educational agency  (L.E.A.) as defined by section 801(f) of the Elementary and Secondary  Education Act of 1965 (20 U.S.C. 881), a preschool, a private elementary  or secondary school, or an applicant or recipient of the type defined by  paragraph (k), (l), (m), or (n) of this section.     (k) Institution of graduate higher education means an institution  which:     (1) Offers academic study beyond the bachelor of arts or bachelor of  science degree, whether or not leading to a certificate of any higher  degree in the liberal arts and sciences; or     (2) Awards any degree in a professional field beyond the first  professional degree (regardless of whether the first professional degree  in such field is awarded by an institution of undergraduate higher  education or professional education); or     (3) Awards no degree and offers no further academic study, but  operates ordinarily for the purpose of facilitating research by persons  who have received the highest graduate degree in any field of study.     (l) Institution of undergraduate higher education means:     (1) An institution offering at least two but less than four years of  college level study beyond the high school level, leading to a diploma  or an associate degree, or wholly or principally creditable toward a  baccalaureate degree; or     (2) An institution offering academic study leading to a  baccalaureate degree; or     (3) An agency or body which certifies credentials or offers degrees,  but which may or may not offer academic study.     (m) Institution of professional education means an institution  (except any institution of undergraduate higher education) which offers  a program of academic study that leads to a first professional degree in  a field for which there is a national specialized accrediting agency  recognized by the United States Commissioner of Education.     (n) Institution of vocational education means a school or  institution (except an institution of professional or graduate or  undergraduate higher education) which has as its primary purpose  preparation of students to pursue a technical, skilled, or semiskilled  occupation or trade, or to pursue study in a technical field, whether or  not the school or institution offers certificates, diplomas, or degrees  and whether or not it offers fulltime study.     (o) Administratively separate unit means a school, department or  college of an educational institution (other than a local educational  agency) admission to which is independent of admission to any other  component of such institution.     (p) Admission means selection for part-time, full-time, special,  associate, transfer, exchange, or any other enrollment, membership, or  matriculation in or at an education program or activity operated by a  recipient.     (q) Student means a person who has gained admission.     (r) Transition plan means a plan subject to the approval of the  United States Commissioner of Education pursuant to section 901(a)(2) of  the Education Amendments of 1972, under which an educational institution  operates in making the transition from being an educational institution  which admits only students of one sex to being one which admits students  of both sexes without discrimination.  (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20  U.S.C. 1681, 1682)    Sec. 86.3  Remedial and affirmative action and self-evaluation.      (a) Remedial action. If the Director finds that a recipient has  discriminated against persons on the basis of sex in an education  program or activity, such recipient shall take such remedial action as  the Director deems necessary to overcome the effects of such  discrimination.     (b) Affirmative action. In the absence of a finding of  discrimination on the basis of sex in an education program or activity,  a recipient may take affirmative action to overcome the effects of  conditions which resulted in limited participation therein by persons of  a particular sex. Nothing herein shall be interpreted to alter any  affirmative action obligations which a recipient may have under  Executive Order 11246.     (c) Self-evaluation. Each recipient education institution shall,  within one year of the effective date of this part:     (1) Evaluate, in terms of the requirements of this part, its current  policies and practices and the effects thereof concerning admission of  students, treatment of students, and employment of both academic and  non-academic personnel working in connection with the recipient's  education program or activity;     (2) Modify any of these policies and practices which do not or may  not meet the requirements of this part; and     (3) Take appropriate remedial steps to eliminate the effects of any  discrimination which resulted or may have resulted from adherence to  these policies and practices.     (d) Availability of self-evaluation and related materials.  Recipients shall maintain on file for at least three years following  completion of the evaluation required under paragraph (c) of this  section, and shall provide to the Director upon request, a description  of any modifications made pursuant to paragraph (c) (2) of this section  and of any remedial steps taken pursuant to paragraph (c) (3) of this  section.  (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20  U.S.C. 1681, 1682)  [40 FR 24128, June 4, 1975; 40 FR 39506, Aug. 28, 1975]  Sec. 86.4  Assurance required.      (a) General. Every application for Federal financial assistance for  any education program or activity shall as condition of its approval  contain or be accompanied by an assurance from the applicant or  recipient, satisfactory to the Director, that each education program or  activity operated by the applicant or recipient and to which this part  applies will be operated in compliance with this part. An assurance of  compliance with this part shall not be satisfactory to the Director if  the applicant or recipient to whom such assurance applies fails to  commit itself to take whatever remedial action is necessary in  accordance with Sec. 86.3(a) to eliminate existing discrimination on the  basis of sex or to eliminate the effects of past discrimination whether  occurring prior or subsequent to the submission to the Director of such  assurance.     (b) Duration of obligation. (1) In the case of Federal financial  assistance extended to provide real property or structures thereon, such  assurance shall obligate the recipient or, in the case of a subsequent  transfer, the transferee, for the period during which the real property  or structures are used to provide an education program or activity.     (2) In the case of Federal financial assistance extended to provide  personal property, such assurance shall obligate the recipient for the  period during which it retains ownership or possession of the property.     (3) In all other cases such assurance shall obligate the recipient  for the period during which Federal financial assistance is extended.     (c) Form. The Director will specify the form of the assurances  required by paragraph (a) of this section and the extent to which such  assurances will be required of the applicant's or recipient's  subgrantees, contractors, subcontractors, transferees, or successors in  interest.  (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20  U.S.C. 1681, 1682)  Sec. 86.5  Transfers of property.      If a recipient sells or otherwise transfers property financed in  whole or in part with Federal financial assistance    to a transferee which operates any education program or activity, and  the Federal share of the fair market value of the property is not upon  such sale or transfer properly accounted for to the Federal Government  both the transferor and the transferee shall be deemed to be recipients,  subject to the provisions of Subpart B of this part.  (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20  U.S.C. 1681, 1682)  Sec. 86.6  Effect of other requirements.      (a) Effect of other Federal provisions. The obligations imposed by  this part are independent of, and do not alter, obligations not to  discriminate on the basis of sex imposed by Executive Order 11246, as  amended; sections 799A and 845 of the Public Health Service Act (42  U.S.C. 295h-9 and 298b-2); Title VII of the Civil Rights Act of 1964 (42  U.S.C. 2000e et seq.); the Equal Pay Act (29 U.S.C. 206 and 206(d)); and  any other Act of Congress or Federal regulation.   (Secs. 901, 902, 905, Education Amendments of 1972, 86 Stat. 373, 374,  375; 20 U.S.C. 1681, 1682, 1685)      (b) Effect of State or local law or other requirements. The  obligation to comply with this part is not obviated or alleviated by any  State or local law or other requirement which would render any applicant  or student ineligible, or limit the eligibility of any applicant or  student, on the basis of sex, to practice any occupation or profession.     (c) Effect of rules or regulations of private organizations. The  obligation to comply with this part is not obviated or alleviated by any  rule or regulation of any organization, club, athletic or other league,  or association which would render any applicant or student ineligible to  participate or limit the eligibility or participation of any applicant  or student, on the basis of sex, in any education program or activity  operated by a recipient and which receives or benefits from Federal  financial assistance.   (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20  U.S.C. 1681, 1682)  Sec. 86.7  Effect of employment opportunities.      The obligation to comply with this part is not obviated or  alleviated because employment opportunities in any occupation or  profession are or may be more limited for members of one sex than for  members of the other sex.   (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20  U.S.C. 1681, 1682)  Sec. 86.8  Designation of responsible employee and adoption of grievance            procedures.      (a) Designation of responsible employee. Each recipient shall  designate at least one employee to coordinate its efforts to comply with  and carry out its responsibilities under this part, including any  investigation of any complaint communicated to such recipient alleging  its noncompliance with this part or alleging any actions which would be  prohibited by this part. The recipient shall notify all its students and  employees of the name, office address and telephone number of the  employee or employees appointed pursuant to this paragraph.     (b) Complaint procedure of recipient. A recipient shall adopt and  publish grievance procedures providing for prompty and equitable  resolution of student and employee complaints alleging any action which  would be prohibited by this part.   (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20  U.S.C. 1681, 1682)  Sec. 86.9  Dissemination of policy.      (a) Notification of policy. (1) Each recipient shall implement  specific and continuing steps to notify applicants for admission and  employment, students and parents of elementary and secondary school  students, employees, sources of referral of applicants for admission and  employment, and all unions or professional organizations holding  collective bargaining or professional agreements with the recipient,  that it does not discriminate on the basis of sex in the educational  programs or activities which it operates, and that is required by title  IX and this part not to discriminate in such a manner. Such notification  shall contain    such information, and be made in such manner, as the Director finds  necessary to apprise such persons of the protections against  discrimination assured them by title IX and this part, but shall state  at least that the requirement not to discriminate in education programs  and activities extends to employment therein, and to admission thereto  unless Subpart C does not apply to the recipient, and that inquiries  concerning the application of title IX and this part to such recipient  may be referred to the employee designated pursuant to Sec. 86.8, or to  the Director.     (2) Each recipient shall make the initial notification required by  paragraph (a) (1) of this section within 90 days of the effective date  of this part or of the date this part first applies to such recipient,  whichever comes later, which notification shall include publication in:     (i) Local newspapers;     (ii) Newspapers and magazines operated by such recipient or by  student, alumnae, or alumni groups for or in connection with such  recipient; and     (iii) Memoranda or other written communications distributed to every  student and employee of such recipient.     (b) Publications. (1) Each recipient shall prominently include a  statement of the policy described in paragraph (a) of this section in  each announcement, bulletin, catalog, or application form which it makes  available to any person of a type, described in paragraph (a) of this  section, or which is otherwise used in connection with the recruitment  of students or employees.     (2) A recipient shall not use or distribute a publication of the  type described in this paragraph which suggests, by text or  illustration, that such recipient treats applicants, students, or  employees differently on the basis of sex except as such treatment is  permitted by this part.     (c) Distribution. Each recipient shall distribute without  discrimination on the basis of sex each publication described in  paragraph (b) of this section, and shall apprise each of its admission  and employment recruitment representatives of the policy of  nondiscrimination described in paragraph (a) of this section, and  require such representatives to adhere to such policy.  (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20  U.S.C. 1681, 1682)                             Subpart B--Coverage  Sec. 86.11  Application.      Except as provided in this subpart, this Part 86 applies to every  recipient and to each education program or activity operated by such  recipient which receives or benefits from Federal financial assistance.  (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20  U.S.C. 1681, 1682)  Sec. 86.12  Educational institutions controlled by religious            organizations.      (a) Application. This part does not apply to an educational  institution which is controlled by a religious organization to the  extent application of this part would not be consistent with the  religious tenets of such organization.     (b) Exemption. An educational institution which wishes to claim the  exemption set forth in paragraph (a) of this section, shall do so by  submitting in writing to the Director a statement by the highest ranking  official of the institution, identifying the provisions of this part  which conflict with a specific tenet of the religious organization.  (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20  U.S.C. 1681, 1682)  Sec. 86.13  Military and merchant marine educational institutions.      This part does not apply to an educational institution whose primary  purpose is the training of individuals for a military service of the  United States or for the merchant marine.  (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20  U.S.C. 1681, 1682)  Sec. 86.14  Membership practices of certain organizations.      (a) Social fraternities and sororities. This part does not apply to  the membership practices of social fraternities and sororities which are  exempt from taxation under section 501(a) of the Internal Revenue Code  of 1954, the active    membership of which consists primarily of students in attendance at  institutions of higher education.     (b) YMCA, YWCA, Girl Scouts, Boy Scouts and Camp Fire Girls. This  part does not apply to the membership practices of the Young Men's  Christian Association, the Young Women's Christian Association, the Girl  Scouts, the Boy Scouts and Camp Fire Girls.     (c) Voluntary youth service organizations. This part does not apply  to the membership practices of voluntary youth service organizations  which are exempt from taxation under section 501(a) of the Internal  Revenue Code of 1954 and the membership of which has been traditionally  limited to members of one sex and principally to persons of less than  nineteen years of age.  (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20  U.S.C. 1681, 1682; sec. 3(a) of Pub. L. 93-568, 88 Stat. 1862 amending  sec. 901)  Sec. 86.15  Admissions.      (a) Admissions to educational institutions prior to June 24, 1973,  are not covered by this part.     (b) Administratively separate units. For the purposes only of this  section, Secs. 86.16 and 86.17, and Subpart C, each administratively  separate unit shall be deemed to be an educational institution.     (c) Application of Subpart C. Except as provided in paragraphs (d)  and (e) of this section, Subpart C applies to each recipient. A  recipient to which Subpart C applies shall not discriminate on the basis  of sex in admission or recruitment in violation of that subpart.     (d) Educational institutions. Except as provided in paragraph (e) of  this section as to recipients which are educational institutions,  Subpart C applies only to institutions of vocational education,  professional education, graduate higher education, and public  institutions of undergraduate higher education.     (e) Public institutions of undergraduate higher education. Subpart C  does not apply to any public institution of undergraduate higher  education which traditionally and continually from its establishment has  had a policy of admitting only students of one sex.  (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20  U.S.C. 1681, 1682)  [40 FR 24128, June 4, 1975; 40 FR 39506, Aug. 28, 1975]  Sec. 86.16  Educational institutions eligible to submit transition            plans.      (a) Application. This section applies to each educational  institution to which Subpart C applies which:     (1) Admitted only students of one sex as regular students as of June  23, 1972; or     (2) Admitted only students of one sex as regular students as of June  23, 1965, but thereafter admitted as regular students, students of the  sex not admitted prior to June 23, 1965.     (b) Provision for transition plans. An educational institution to  which this section applies shall not discriminate on the basis of sex in  admission or recruitment in violation of Subpart C unless it is carrying  out a transition plan approved by the United States Commissioner of  Education as described in Sec. 86.17, which plan provides for the  elimination of such discrimination by the earliest practicable date but  in no event later than June 23, 1979.  (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20  U.S.C. 1681, 1682)  Sec. 86.17  Transition plans.      (a) Submission of plans. An institution to which Sec. 86.16 applies  and which is composed of more than one administratively separate unit  may submit either a single transition plan applicable to all such units,  or a separate transition plan applicable to each such unit.     (b) Content of plans. In order to be approved by the United States  Commissioner of Education, a transition plan shall:     (1) State the name, address, and Federal Interagency Committee on  Education (FICE) Code of the educational institution submitting such  plan, the administratively separate units to which the plan is  applicable, and the name, address, and telephone number of the person to  whom questions concerning the plan may be addressed. The person who  submits the plan shall be the chief administrator or president of    the institution, or another individual legally authorized to bind the  institution to all actions set forth in the plan.     (2) State whether the educational institution or administratively  separate unit admits students of both sexes, as regular students and, if  so, when it began to do so.     (3) Identify and describe with respect to the educational  institution or administratively separate unit any obstacles to admitting  students without discrimination on the basis of sex.     (4) Describe in detail the steps necessary to eliminate as soon as  practicable each obstacle so identified and indicate the schedule for  taking these steps and the individual directly responsible for their  implementation.     (5) Include estimates of the number of students, by sex, expected to  apply for, be admitted to, and enter each class during the period  covered by the plan.     (c) Nondiscrimination. No policy or practice of a recipient to which  Sec. 86.16 applies shall result in treatment of applicants to or  students of such recipient in violation of Subpart C unless such  treatment is necessitated by an obstacle identified in paragraph (b)(3)  of this section and a schedule for eliminating that obstacle has been  provided as required by paragraph (b)(4) of this section.     (d) Effects of past exclusion. To overcome the effects of past  exclusion of students on the basis of sex, each educational institution  to which Sec. 86.16 applies shall include in its transition plan, and  shall implement, specific steps designed to encourage individuals of the  previously excluded sex to apply for admission to such institution. Such  steps shall include instituting recruitment programs which emphasize the  institution's commitment to enrolling students of the sex previously  excluded.  (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20  U.S.C. 1681, 1682)  [40 FR 24128, June 4, 1975; 40 FR 39506, Aug. 28, 1975]  Secs. 86.18--86.20  [Reserved]       Subpart C--Discrimination on the Basis of Sex in Admission and                           Recruitment Prohibited  Sec. 86.21  Admission.      (a) General. No person shall, on the basis of sex, be denied  admission, or be subjected to discrimination in admission, by any  recipient to which this subpart applies, except as provided in  Secs. 86.16 and 86.17.     (b) Specific prohibitions. (1) In determining whether a person  satisfies any policy or criterion for admission, or in making any offer  of admission, a recipient to which this subpart applies shall not:     (i) Give preference to one person over another on the basis of sex,  by ranking applicants separately on such basis, or otherwise;     (ii) Apply numerical limitations upon the number or proportion of  persons of either sex who may be admitted; or     (iii) Otherwise treat one individual differently from another on the  basis of sex.     (2) A recipient shall not administer or operate any test or other  criterion for admission which has a disproportionately adverse effect on  persons on the basis of sex unless the use of such test or criterion is  shown to predict validly success in the education program or activity in  question and alternative tests or criteria which do not have such a  disproportionately adverse effect are shown to be unavailable.     (c) Prohibitions relating to marital or parental status. In  determining whether a person satisfies any policy or criterion for  admission, or in making any offer of admission, a recipient to which  this subpart applies:     (1) Shall not apply any rule concerning the actual or potential  parental, family, or marital status of a student or applicant which  treats persons differently on the basis of sex;     (2) Shall not discriminate against or exclude any person on the  basis of pregnancy, childbirth, termination of pregnancy, or recovery  therefrom, or    establish or follow any rule or practice which so discriminates or  excludes;     (3) Shall treat disabilities related to pregnancy, childbirth,  termination of pregnancy, or recovery therefrom in the same manner and  under the same policies as any other temporary disability or physical  condition; and     (4) Shall not make pre-admission inquiry as to the marital status of  an applicant for admission, including whether such applicant is ``Miss''  or ``Mrs.'' A recipient may make pre-admission inquiry as to the sex of  an applicant for admision, 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.  (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20  U.S.C. 1681, 1682)  Sec. 86.22  Preference in admission.      A recipient to which this subpart applies shall not give preference  to applicants for admission, on the basis of attendance at any  educational institution or other school or entity which admits as  students or predominantly members of one sex, if the giving of such  preference has the effect of discriminating on the basis of sex in  violation of this subpart.  (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20  U.S.C. 1681, 1682)  Sec. 86.23  Recruitment.      (a) Nondiscriminatory recruitment. A recipient to which this subpart  applies shall not discriminate on the basis of sex in the recruitment  and admission of students. A recipient may be required to undertake  additional recruitment efforts for one sex as remedial action pursuant  to Sec. 86.3(a), and may choose to undertake such efforts as affirmative  action pursuant to Sec. 86.3(b).     (b) Recruitment at certain institutions. A recipient to which this  subpart applies shall not recruit primarily or exclusively at  educational institutions, schools or entities which admit as students  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.  (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20  U.S.C. 1681, 1682)  Secs. 86.24--86.30  [Reserved]  Subpart D--Discrimination on the Basis of Sex in Education Programs and                            Activities Prohibited  Sec. 86.31  Education programs and activities.      (a) General. Except as provided elsewhere in this part, no person  shall, on the basis of sex, be excluded from participation in, be denied  the benefits of, or be subjected to discrimination under any academic,  extracurricular, research, occupational training, or other education  program or activity operated by a recipient which receives of benefits  from Federal financial assistance. This subpart does not apply to  actions of a recipient in connection with admission of its students to  an education program or activity of (1) a recipient to which Subpart C  does not apply, or (2) an entity, not a recipient, to which Subpart C  would not apply if the entity were a recipient.     (b) Specific prohibitions. Except as provided in this subpart, in  providing any aid, benefit, or service to a student, a recipient shall  not, on the basis of sex:     (1) Treat one person differently from another in determining whether  such person satisfies any requirement or condition for the provision of  such aid, benefit, or service;     (2) Provide different aid, benefits, or services or provide aid,  benefits, or services in a different manner;     (3) Deny any person any such aid, benefit, or service;     (4) Subject any person to separate or different rules of behavior,  sanctions, or other treatment;     (5) Discriminate against any person in the application of any rules  of appearance;     (6) Apply any rule concerning the domicile or residence of a student  or applicant, including eligibility for in-state fees and tuition;     (7) Aid or perpetuate discrimination against any person by providing  significant assistance to any agency, organization, or person which  discriminates on the basis of sex in providing any aid, benefit or  service to students or employees;        (8) Otherwise limit any person in the enjoyment of any right,  privilege, advantage, or opportunity.     (c) Assistance administered by a recipient educational institution  to study at a foreign institution. A recipient educational institution  may administer or assist in the administration of scholarships,  fellowships, or other awards established by foreign or domestic wills,  trusts, or similar legal instruments, or by acts of foreign governments  and restricted to members of one sex, which are designed to provide  opportunities to study abroad, and which are awarded to students who are  already matriculating at or who are graduates of the recipient  institution; Provided, a recipient educational institution which  administers or assists in the administration of such scholarships,  fellowship, or other awards which are restricted to members of one sex  provides, or otherwise makes available reasonable opportunities for  similar studies for members of the other sex. Such opportunities may be  derived from either domestic or foreign sources.     (d) Programs not operated by recipient. (1) This paragraph applies  to any recipient which requires participation by any applicant, student,  or employee in any education program or activity not operated wholly by  such recipient, or which facilitates, permits, or considers such  participation as part of or equivalent to an education program or  activity operated by such recipient, including participation in  educational consortia and cooperative employment and student-teaching  assignments.     (2) Such recipient;     (i) Shall develop and implement a procedure designed to assure  itself that the operator or sponsor of such other education program or  activity takes no action affecting any applicant, student, or employee  of such recipient which this part would prohibit such recipient from  taking; and     (ii) Shall not facilitate, require, permit, or consider such  participation if such action occurs.  (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20  U.S.C. 1681, 1682)  Sec. 86.32  Housing.      (a) Generally. A recipient shall not, on the basis of sex, apply  different rules or regulations, impose different fees or requirements,  or offer different services or benefits related to housing, except as  provided in this section (including housing provided only to married  students).     (b) Housing provided by recipient. (1) A recipient may provide  separate housing on the basis of sex.     (2) Housing provided by a recipient to students of one sex, when  compared to that provided to students of the other sex, shall be as a  whole:     (i) Proportionate in quantity to the number of students of that sex  applying for such housing; and     (ii) Comparable in quality and cost to the student.     (c) Other housing. (1) A recipient shall not, on the basis of sex,  administer different policies or practices concerning occupancy by its  students of housing other than provided by such recipient.     (2) A recipient which, through solicitation, listing, approval of  housing, or otherwise, assists any agency, organization, or person in  making housing available to any of its students, shall take such  reasonable action as may be necessary to assure itself that such housing  as is provided to students of one sex, when compared to that provided to  students of the other sex, is as a whole: (i) Proportionate in quantity  and (ii) comparable in quality and cost to the student. A recipient may  render such assistance to any agency, organization, or person which  provides all or part of such housing to students only of one sex.  (Secs. 901, 902, 907, Education Amendments of 1972, 86 Stat. 373, 374,  375; 20 U.S.C. 1681, 1682, 1686)  Sec. 86.33  Comparable facilities.      A recipient may provide separate toilet, locker room, and shower  facilities on the basis of sex, but such facilities provided for  students of one sex shall be comparable to such facilities provided for  students of the other sex.  (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374)  Sec. 86.34  Access to course offerings.      A recipient shall not provide any course or otherwise carry out any  of its    education program or activity separately on the basis of sex, or require  or refuse participation therein by any of its students on such basis,  including health, physical education, industrial, business, vocational,  technical, home economics, music, and adult education courses.     (a) With respect to classes and activities in physical education at  the elementary school level, the recipient shall comply fully with this  section as expeditiously as possible but in no event later than one year  from the effective date of this regulation. With respect to physical  education classes and activities at the secondary and post-secondary  levels, the recipient shall comply fully with this section as  expeditiously as possible but in no event later than three years from  the effective date of this regulation.     (b) This section does not prohibit grouping of students in physical  education classes and activities by ability as assessed by objective  standards of individual performance developed and applied without regard  to sex.     (c) This section does not prohibit separation of students by sex  within physical education classes or activities during participation in  wrestling, boxing, rugby, ice hockey, football, basketball and other  sports the purpose or major activity of which involves bodily contact.     (d) Where use of a single standard of measuring skill or progress in  a physical education class has an adverse effect on members of one sex,  the recipient shall use appropriate standards which do not have such  effect.     (e) Portions of classes in elementary and secondary schools which  deal exclusively with human sexuality may be conducted in separate  sessions for boys and girls.     (f) Recipients may make requirements based on vocal range or quality  which may result in a chorus or choruses of one or predominantly one  sex.  (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20  U.S.C. 1681, 1682)  Sec. 86.35  Access to schools operated by L.E.A.s.      A recipient which is a local educational agency shall not, on the  basis of sex, exclude any person from admission to:     (a) Any institution of vocational education operated by such  recipient; or     (b) Any other school or educational unit operated by such recipient,  unless such recipient otherwise makes available to such person, pursuant  to the same policies and criteria of admission, courses, services, and  facilities comparable to each course, service, and facility offered in  or through such schools.  (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20  U.S.C. 1681, 1682)  Sec. 86.36  Counseling and use of appraisal and counseling materials.      (a) Counseling. A recipient shall not discriminate against any  person on the basis of sex in the counseling or guidance of students or  applicants for admission.     (b) Use of appraisal and counseling materials. A recipient which  uses testing or other materials for appraising or counseling students  shall not use different materials for students on the basis of their sex  or use materials which permit or require different treatment of students  on such basis unless such different materials cover the same occupations  and interest areas and the use of such different materials is shown to  be essential to eliminate sex bias. Recipients shall develop and use  internal procedures for ensuring that such materials do not discriminate  on the basis of sex. Where the use of a counseling test or other  instrument results in a substantially disproportionate number of members  of one sex in any particular course of study or classification, the  recipient shall take such action as is necessary to assure itself that  such disproportion is not the result of discrimination in the instrument  or its application.     (c) Disproportion in classes. Where a recipient finds that a  particular class contains a substantially disproportionate number of  individuals of one sex, the recipient shall take such action as is  necessary to assure itself that such disproportion is not the result of  discrimination on the basis of    sex in counseling or appraisal materials or by counselors.  (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20  U.S.C. 1681, 1682)  Sec. 86.37  Financial assistance.      (a) General. Except as provided in paragraphs (b) and (c) of this  section, in providing financial assistance to any of its students, a  recipient shall not: (1) On the basis of sex, provide different amount  or types of such assistance, limit eligibility for such assistance which  is of any particular type or source, apply different criteria, or  otherwise discriminate; (2) through solicitation, listing, approval,  provision of facilities or other services, assist any foundation, trust,  agency, organization, or person which provides assistance to any of such  recipient's students in a manner which discriminates on the basis of  sex; or (3) apply any rule or assist in application of any rule  concerning eligibility for such assistance which treats persons of one  sex differently from persons of the other sex with regard to marital or  parental status.     (b) Financial aid established by certain legal instruments. (1) A  recipient may administer or assist in the administration of  scholarships, fellowships, or other forms of financial assistance  established pursuant to domestic or foreign wills, trusts, bequests, or  similar legal instruments or by acts of a foreign government which  requires that awards be made to members of a particular sex specified  therein; Provided, That the overall effect of the award of such sex- restricted scholarships, fellowships, and other forms of financial  assistance does not discriminate on the basis of sex.     (2) To ensure nondiscriminatory awards of assistance as required in  paragraph (b)(1) of this section, recipients shall develop and use  procedures under which:     (i) Students are selected for award of financial assistance on the  basis of nondiscriminatory criteria and not on the basis of availability  of funds restricted to members of a particular sex;     (ii) An appropriate sex-restricted scholarship, fellowship, or other  form of financial assistance is allocated to each student selected under  paragraph (b)(2)(i) of this section; and     (iii) No student is denied the award for which he or she was  selected under paragraph (b)(2)(i) of this section because of the  absence of a scholarship, fellowship, or other form of financial  assistance designated for a member of that student's sex.     (c) Athletic scholarships. (1) To the extent that a recipient awards  athletic scholarships or grants-in-aid, it must provide reasonable  opportunities for such awards for members of each sex in proportion to  the number of students of each sex participating in interscholastic or  intercollegiate athletics.     (2) Separate athletic scholarships or grants-in-aid for members of  each sex may be provided as part of separate athletic teams for members  of each sex to the extent consistent with this paragraph and Sec. 86.41.  (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20  U.S.C. 1681, 1682; and sec. 844, Education Amendments of 1974, Pub. L.  93-380, 88 Stat. 484)  [40 FR 24128, June 4, 1975; 40 FR 39506, Aug. 28, 1975]  Sec. 86.38  Employment assistance to students.      (a) Assistance by recipient in making available outside employment.  A recipient which assists any agency, organization or person in making  employment available to any of its students:     (1) Shall assure itself that such employment is made available  without discrimination on the basis of sex; and     (2) Shall not render such services to any agency, organization, or  person which discriminates on the basis of sex in its employment  practices.     (b) Employment of students by recipients. A recipient which employs  any of its students shall not do so in a manner which violates Subpart E  of this part.  (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20  U.S.C. 1681, 1682)  Sec. 86.39  Health and insurance benefits and services.      In providing a medical, hospital, accident, or life insurance  benefit, service, policy, or plan to any of its students, a recipient  shall not discriminate on the basis of sex, or provide such benefit,  service, policy, or plan in    a manner which would violate Subpart E of this part if it were provided  to employees of the recipient. This section shall not prohibit a  recipient from providing any benefit or service which may be used by a  different proportion of students of one sex than of the other, including  family planning services. However, any recipient which provides full  coverage health service shall provide gynecological care.  (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20  U.S.C. 1681, 1682)  Sec. 86.40  Marital or parental status.      (a) Status generally. A recipient shall not apply any rule  concerning a student's actual or potential parental, family, or marital  status which treats students differently on the basis of sex.     (b) Pregnancy and related conditions. (1) A recipent shall not  discriminate against any student, or exclude any student from its  education program or activity, including any class or extracurricular  activity, on the basis of such student's pregnancy, childbirth, false  pregnancy, termination of pregnancy or recovery therefrom, unless the  student requests voluntarily to participate in a separate portion of the  program or activity of the recipient.     (2) A recipient may require such a student to obtain the  certification of a physician that the student is physically and  emotionally able to continue participation in the normal education  program or activity so long as such a certification is required of all  students for other physical or emotional conditions requiring the  attention of a physician.     (3) A recipient which operates a portion of its education program or  activity separately for pregnant students, admittance to which is  completely voluntary on the part of the student as provided in paragraph  (b)(1) of this section shall ensure that the instructional program in  the separate program is comparable to that offered to non-pregnant  students.     (4) A recipient shall treat pregnancy, childbirth, false pregnancy,  termination of pregnancy and recovery therefrom in the same manner and  under the same policies as any other temporary disability with respect  to any medical or hospital benefit, service, plan or policy which such  recipient administers, operates, offers, or participates in with respect  to students admitted to the recipient's educational program or activity.     (5) In the case of a recipient which does not maintain a leave  policy for its students, or in the case of a student who does not  otherwise 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 for so long  a period of time as is deemed medically necessary by the student's  physician, at the conclusion of which the student shall be reinstated to  the status which she held when the leave began.  (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20  U.S.C. 1681, 1682)  Sec. 86.41  Athletics.      (a) General. No person shall, on the basis of sex, be excluded from  participation in, be denied the benefits of, be treated differently from  another person or otherwise be discriminated against in any  interscholastic, intercollegiate, club or intramural athletics offered  by a recipient, and no recipient shall provide any such athletics  separately on such basis.     (b) Separate teams. Notwithstanding the requirements of paragraph  (a) of this section, a recipient may operate or sponsor separate teams  for members of each sex where selection for such teams is based upon  competitive skill or the activity involved is a contact sport. However,  where a recipient operates or sponsors a team in a particular sport for  members of one sex but operates or sponsors no such team for members of  the other sex, and athletic opportunities for members of that sex have  previously been limited, members of the excluded sex must be allowed to  try-out for the team offered unless the sport involved is a contact  sport. For the purposes of this part, contact sports include boxing,  wrestling, rugby, ice hockey, football, basketball and other sports the  purpose of major activity of which involves bodily contact.     (c) Equal opportunity. A recipient which operates or sponsors  interscholastic, intercollegiate, club or intramural athletics shall  provide equal    athletic opportunity for members of both sexes. In determining whether  equal opportunities are available the Director will consider, among  other factors:     (1) Whether the selection of sports and levels of competition  effectively accommodate the interests and abilities of members of both  sexes;     (2) The provision of equipment and supplies;     (3) Scheduling of games and practice time;     (4) Travel and per diem allowance;     (5) Opportunity to receive coaching and academic tutoring;     (6) Assignment and compensation of coaches and tutors;     (7) Provision of locker rooms, practice and competitive facilities;     (8) Provision of medical and training facilities and services;     (9) Provision of housing and dining facilities and services;     (10) Publicity.  Unequal aggregate expenditures for members of each sex or unequal  expenditures for male and female teams if a recipient operates or  sponsors separate teams will not constitute noncompliance with this  section, but the Director may consider the failure to provide necessary  funds for teams for one sex in assessing equality of opportunity for  members of each sex.     (d) Adjustment period. A recipient which operates or sponsors  interscholastic, intercollegiate, club or intramural athletics at the  elementary school level shall comply fully with this section as  expeditiously as possible but in no event later than one year from the  effective date of this regulation. A recipient which operates or  sponsors interscholastic, intercollegiate, club or intramural athletics  at the secondary or post-secondary school level shall comply fully with  this section as expeditiously as possible but in no event later than  three years from the effective date of this regulation.  (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20  U.S.C. 1681, 1682; and sec. 844, Education Amendments of 1974, Pub. L.  93-380, 88 Stat. 484)  [40 FR 24128, June 4, 1975; 40 FR 39506, Aug. 28, 1975]  Sec. 86.42  Textbooks and curricular material.      Nothing in this regulation shall be interpreted as requiring or  prohibiting or abridging in any way the use of particular textbooks or  curricular materials.  (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20  U.S.C. 1681, 1682)  Secs. 86.43--86.50  [Reserved]  Subpart E--Discrimination on the Basis of Sex in Employment in Education                     Programs and Activities Prohibited  Sec. 86.51  Employment.      (a) General. (1) No person shall, on the basis of sex, be excluded  from participation in, be denied the benefits of, or be subjected to  discrimination in employment, or recruitment, consideration, or  selection therefor, whether full-time or part-time, under any education  program or activity operated by a recipient which receives or benefits  from Federal financial assistance.     (2) A recipient shall make all employment decisions in any education  program or activity operated by such recipient in a nondiscriminatory  manner and shall not limit, segregate, or classify applicants or  employees in any way which could adversely affect any applicant's or  employee's employment opportunities or status because of sex.     (3) A recipient shall not enter into any contractual or other  relationship which directly or indirectly has the effect of subjecting  employees or students to discrimination prohibited by this subpart,  including relationships with employment and referral agencies, with  labor unions, and with organizations providing or administering fringe  benefits to employees of the recipient.     (4) A recipient shall not grant preferences to applicants for  employment on the basis of attendance at any educational institution or  entity which admits as students only or predominantly members of one  sex, if the giving of such preferences has the effect of discriminating  on the basis of sex in violation of this part.        (b) Application. The provisions of this subpart apply to:     (1) Recruitment, advertising, and the process of application for  employment;     (2) Hiring, upgrading, promotion, consideration for and award of  tenure, demotion, transfer, layoff, termination, application of nepotism  policies, right of return from layoff, and rehiring;     (3) Rates of pay or any other form of compensation, and changes in  compensation;     (4) Job assignments, classifications and structure, including  position descriptions, lines of progression, and seniority lists;     (5) The terms of any collective bargaining agreement;     (6) Granting and return from leaves of absence, leave for pregnancy,  childbirth, false pregnancy, termination of pregnancy, leave for persons  of either sex to care for children or dependents, or any other leave;     (7) Fringe benefits available by virtue of employment, whether or  not administered by the recipient;     (8) Selection and financial support for training, including  apprenticeship, professional meetings, conferences, and other related  activities, selection for tuition assistance, selection for sabbaticals  and leaves of absence to pursue training;     (9) Employer-sponsored activities, including social or recreational  programs; and     (10) Any other term, condition, or privilege of employment.  (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20  U.S.C. 1681, 1682)  Sec. 86.52  Employment criteria.      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.  (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20  U.S.C. 1681, 1682)  Sec. 86.53  Recruitment.      (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.  (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20  U.S.C. 1681, 1682)  Sec. 86.54  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 which are performed under similar working  conditions.  (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20  U.S.C. 1681, 1682)  Sec. 86.55  Job classification and structure.      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 Sec. 86.61.  (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20  U.S.C. 1681, 1682)  [40 FR 24128, June 4, 1975; 40 FR 39506, Aug. 28, 1975]  Sec. 86.56  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 Sec. 86.54.     (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 sex or which otherwise discriminates in  benefits on the basis of sex.  (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20  U.S.C. 1681, 1682)  Sec. 86.57  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 opportunities, or any other right or privilege of  employment.  (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20  U.S.C. 1681, 1682)  Sec. 86.58  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.  (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20  U.S.C. 1681, 1682)    Sec. 86.59  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.  (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20  U.S.C. 1681, 1682)  Sec. 86.60  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 pre-employment 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.  (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20  U.S.C. 1681, 1682)  Sec. 86.61  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 sex.  (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20  U.S.C. 1681, 1682)  Secs. 86.62--86.70  [Reserved]                       Subpart F--Procedures [Interim]  Sec. 86.71  Interim procedures.      For the purposes of implementing this part during the period between  its effective date and the final issuance by the Department of a  consolidated procedural regulation applicable to title IX and other  civil rights authorities administered by the Department, 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 45 CFR 80-6 through 80-11 and 45 CFR Part 81.  (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20  U.S.C. 1681, 1682)            Subject Index to Title IX Preamble and Regulation \1\ ---------------------------------------------------------------------------      \1\ Preamble paragraph numbers are in brackets [ ]. ---------------------------------------------------------------------------                                      A  Access to Course Offerings [43, 55, 56, 57, 58]; 86.34 Access to Schools Operated by LEA's, [44]; 86.35 Admissions, [5, 6, 30]; 86.15, 86.21     Affirmative and remedial action, [16, 17, 24]; 86.3 (a), (b)     Administratively separate units, [30];86.15(b), 86.2(o)     Educational Institutions, [30], 86.15(d), 86.2(n)     General, 86.21(a), 86.2(p),     Prohibitions relating to marital and parental status, [32, 36];  86.21(c)     Professional schools, [30], 86.2(m)     Public institutions of undergraduate higher education, 86.15(e)     Recruitment, [34, 35]; 86.23     Specific prohibitions, 86.21(b)     Tests, [31]; 86.21(b)(2)     Preference in admission, [35]; 86.22 Advertising, 86.59 Affirmative Action, see ``Remedial and Affirmative Actions'' Assistance to ``outside'' discriminatory organizations, [40, 53];            86.31(b)(7), (c) Assurances, [18]; 86.4     Duration of obligation, 86.4(b)     Form, 86.4(c) Athletics, [69 to 78]; 86.41     Adjustment period, [78]; 86.41(d)     Contact sport defined, 86.41(d)        Equal opportunity, [76, 77]; 86.41(d)     Determining factors, 86.41(c) (i) to (x)     Equipment, 86.41(c)     Expenditures, 86.41(c)     Facilities, 86.41(c)     Travel, 86.41(c)     Scholarships, [64, 65]; 86.37(d)     General, [69, 70, 71, 72, 73, 74, 75]; 86.41(a)     Separate teams, [75]; 86.41(b)                                      B  BFOQ, [96]; 86.61                                      C  Comparable facilities     Housing, [42, 54]; 86.32     Other, 86.33, 86.35(b) Compensation, [84, 87, 92]; 86.54 Counseling     Disproportionate classes, [45, 59]; 86.36(c)     General, [45, 59]; 86.36(a)     Materials, [45, 59]; 86.36(b) Course Offerings     Adjustment period, [55]; 86.34(a) (i)     General, [7, 43]; 86.34     Music classes, [43]; 86.34(f)     Physical education, [43, 56, 58];     Sex education, [43, 57]; 86.34(e) Coverage, [5]; 86.11 to 86.17     Exemptions Curricular materials, [52]; 86.42(a)                                      D  Definitions, [14, 15]; 86.2(a) to (r) Designation of responsible employee, [20, 22]; 86.8(a), (b) Dissemination of policy, [21]; 86.9     Distribution, 86.9(c)     Notification of policy, [21]; 86.9(a)     Publications, 86.9(b) Dress codes 86.31(b) (4)                                      E  Education Institutions     Controlled by religious organizations, 86.12     Application, [28, 29]; 86.12(a)     Exemption, [26]; 86.12(b) Education Program and Activities     Benefiting from Federal financial assistance, [10, 11]; 86.11     General, [10, 11, 53]; 86.31(a)     Programs not operated by recipient, [41, 54]; 86.31(c)     Specific prohibitions, [38, 39, 40, 53]; 86.31 (b) Effective Date, [3]     Employee responsible for Title IX, see ``Designation of Responsible  Employee'' Employment     Advertising, 86.59     Application, 86.51(b)     Compensation, [84, 92]; 86.54     Employment criteria, 86.52     Fringe benefits, [88, 89]; 86.56     General, [81, 82, 87]; 86.51     Job Classification and Structure, 86.55     Marital and Parental Status, 86.57     Pregnancy, [85, 93]; 86.57(b)     Pregnancy as Temporary Disability, [85, 93]; 86.57(c)     Pregnancy Leave, [85, 93, 94]; 86.57(d) Pre-Employment Inquiry     Recruitment, [83, 90, 91, 95]     Sex as a BFOQ, [96]; 86.61     Student Employment, [66]; 86.38     Tenure, 86.51(b) (2) Exemptions, [5, 27, 28, 29, 30, 53]; 86.12(b), 86.13, 86.14, 86.15(a),            86.15(d), 86.16                                      F  Federal Financial Assistance, 86.2(a) Financial Assistance to students, [46, 60, 61]; 86.37     Athletic Scholarships, [46, 64, 65]; 86.37(d)     Foreign institutions, study at [63]; 86.31(c)     General, 86.37     Non-need scholarships, [62]; 86.37(b)     Pooling of sex-restrictive, [46, 61, 62]; 86.37(b)     Sex-restrictive assistance through foreign or domestic wills [46,  61, 62]; 86.37(b) Foreign Scholarships, see ``Financial assistance'' 86.37 and            ``Assistance to `outside' discriminatory organizations'',            86.31(c) Fraternities/Sororities     Social, [53, 27, 28]; 86.14(a)     Business/professional, [40, 53, 27, 28]; 86.31(b) (7)     Honor societies, [40, 53]; 86.31(b) (7) Fringe benefits, [67, 88, 89]; 86.56, 86.39     Part-time employees, [89]                                      G  Grievance Procedure, see ``Designation of responsible employee'',            86.8(a) (b)                                      H  Health and Insurance Benefits and Services, [67, 88, 93]; 86.39, 86.56 Honor societies, [40, 53]; 86.31(b) (7) Housing, 86.32     Generally, [42]; 86.32(b)     Provided by recipient, 86.32(b)     Other housing, [54]; 86.32(c)                                      J  Job Classification and Structure, 86.55                                      L  LEA's, [44]; 86.35                                      M  Marital and Parental Status     Employment     General, [85, 93, 94]; 86.57     Pregnancy, [85, 93, 94]; 86.57(b)     Pregnancy as a temporary disability, [85, 93, 94]; 86.57(c)     Pregnancy leave, [85, 93, 94]; 86.57(d)     Students     General, [49]; 86.40(a) (b)        Pregnancy and related conditions, [50]; 86.40(b) (1) (2) (3) (4) (5)     Class participation, [50]; 86.40(b) (1)     Physician certification, [50]; 86.40(b) (2)     Special classes, [50]; 86.40(b) (3)     Temporary leave, [50]; 86.40(b) (4) (5) Membership Practices of Social fraternities and sororities, [27, 28,            53]; 86.14(a)     Voluntary youth service organizations, [27, 28, 53]; 86.14(c)     YMCA, YWCA and others, [27, 28, 53]; 86.14(b) Military and Merchant Marine Educational Institutions, [29]; 86.13                                      P  Pooling, see ``Financial Assistance'', 86.37 Pre-employment Inquiries     Marital status, [86, 95]; 86.60(a)     Sex, 86.60(b) Preference in Admissions, [35]; 86.22     See also ``Remedial and Affirmative Action'' Pregnancy, Employment     General, [85, 93, 94]; 86.57     Pregnancy, [85, 93, 94]; 86.57(b)     Pregnancy as temporary disability, [85, 93, 94]; 86.57(c)     Pregnancy leave, [85, 93, 94]; 86.57(d)     Students     General, [49, 50]; 86.40(a) and (b)     Pregnancy and related conditions; [50]; 86.40(b) (1) to (5)     Class Participation, [50, 55, 58]; 86.40(b) (1)     Physical certification, [50]; 86.40(b) (2)     Special class, [50]; 86.40 (b) (3)     Temporary leave, [50]; 86.40(b) (4), (5) Private Undergraduate Professional Schools, [30]; 86.15(d) Purpose of Regulation, [13]; 86.1                                      R  Real Property, 86.2(g) Recruitment     Employment     Nondiscrimination, [83, 91]; 86.53(a)     Patterns, 86.53(b) Student     Nondiscrimination, [34, 35]; 86.23(a)     Recruitment at certain institutions, 86.23 (b) Religious Organizations     Application, [29, 28]; 86.12(a)     Exemption, [26]; 86.12(b) Remedial and Affirmative Actions, [16, 17, 24]; 86.3                                      S  Scholarships, see ``Financial Assistance'', 86.37 Self-evaluation, [16, 22]; 86.3(c) (d) Surplus Property (see Transfer of Property 86.5)     Duration of obligation 86.4(b)     Real Property 86.4(b) (1)                                      T  Textbooks and curricular materials, [52, 79, 80]; 86.42 Termination of funds, [10, 11] Transfer of property, 86.5 Transition Plans     Content of plans, 86.17(b)     Different from Adjustment period, [78]; 86.41(d)   Submission of plans, 86.17(a)    Appendix A to Part 86--Guidelines for Eliminating Discrimination and   Denial of Services on the Basis of Race, Color, National Origin, Sex,                and Handicap in Vocational Education Programs      Note: For the text of these guidelines, see 45 CFR Part 80, Appendix  B.  [44 FR 17168, Mar. 21, 1979]    
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Updated August 6, 2015