May 9, 2013 | Bulletin
To:CUNY Faculty and Staff
From: Frederick P. Schaffer, General Counsel and Senior Vice Chancellor for Legal Affairs
Re: Non-Discrimination of Students on the Basis of Pregnancy, Childbirth and Related Conditions
This memorandum is being sent to inform and remind the University community of the University’s obligations not to discriminate against students on the basis of pregnancy, childbirth and related conditions.
The University’s Policy on Equal Opportunity and Non-Discrimination makes clear that CUNY does not discriminate against persons on the basis of sex in its educational programs and activities. The legal prohibition against sex discrimination in education comes from, among other places, Title IX of the Education Amendments Act of 1972 (“Title IX”). Title IX prohibits discrimination on the basis of sex—including pregnancy and related conditions—in educational programs and activities that are eligible for federal funding.
Attached is a copy of U.S. Department of Education regulations 34 C.F.R. § 106.40(b) concerning pregnancy and related conditions. The regulations provide, in pertinent part, that a college that is a recipient of federal funding shall not discriminate against any student on the basis of pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery therefrom. Specifically, educational institutions such as CUNY that are covered by Title IX must treat these conditions 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. In the event that the educational institution does not maintain a leave policy for its students, or in the event that a student does not otherwise qualify for leave under the policy, the institution is required to treat such condition 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.
This means that CUNY must give all students who might be, are, or have been pregnant the same access to school programs and educational opportunities that other students have. Absences due to medical conditions relating to pregnancy must be excused for as long as medically necessary and the students must be given the opportunity to make up missed work, with the goal of having the student graduate on time, if possible and if desired by the student. Professors and administrators should not tell students that they have to drop out of their classes or programs or change their educational plans due to their pregnancies or related conditions. And CUNY cannot terminate or reduce athletic, merit or need-based scholarships based on pregnancy. These rules supersede any school- or instructor-based attendance or other policies regarding allowable numbers of absences or ability to make up missed school work.
In light of this legal requirement, it is critical that faculty and staff who deal with students are knowledgeable about their obligations to students in this situation. In addition, the colleges should include the following in their student handbooks and websites:
[Insert College] does not discriminate against any student on the basis of pregnancy or related conditions. Absences due to medical conditions relating to pregnancy will be excused for as long as deemed medically necessary by a student’s doctor and students will be given the opportunity to make up missed work. Students needing assistance can seek accommodations from the Office of Accessibility [Insert contact information] or Title IX Coordinator [Insert name and contact information].
For more information and materials regarding Title IX’s prohibition against discrimination based on pregnancy and related conditions, you can contact the National Women’s Law Center.