U.S. Department of EducationOffice for Civil RightsWashington, D.C. 20202-1328

August 1991

**INTRODUCTION**

The Office for Civil Rights, Department of Education, prepared this pamphlet for the general public and for education agencies and institutions that have programs or activities that receive Federal financial assistance. Among the education recipients of Federal funds are approximately 16,000 local education systems; 3,200 colleges and universities; 50 state education agencies, their subrecipients, and vocational rehabilitation agencies, and the education and vocational rehabilitation agencies of the District of Columbia and of all American territories and possessions. The pamphlet summarizes the requirements pertaining to employment practices contained in Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and Section 504 of the Rehabilitation Act of 1973.

Title VI protects people from discrimination on the basis of race, color, or national origin in any program, or activity receiving Federal financial assistance; Title IX prohibits discrimination on the basis of sex in education programs or activities receiving Federal financial assistance; and Section 504 prohibits discrimination on the basis of handicap in programs or activities receiving Federal financial assistance.

The Department of Education (ED), Office for Civil Rights (OCR), is responsible for enforcing Federal civil rights requirements in programs or activities that receive assistance from ED; however, with certain exceptions, OCR refers individual complaints of employment discrimination under Title VI and Title IX to the Equal Employment Opportunity Commission.

ED issued regulations for each of the above three statutes. Each regulation includes a description of requirements concerning employment practices. State or local laws that conflict with the employment provisions or any other provisions of these regulations cannot be used as an excuse for noncompliance.

This pamphlet summarizes the employment requirements of the ED civil rights regulations. For copies of the regulations or additional information, write or telephone the OCR regional office that serves your state or territory. Also contact the appropriate OCR regional office if you wish to file a discrimination complaint against a recipient education agency or institution, their subrecipients, or vocational rehabilitation agencies; or the education or vocational rehabilitation agencies of the District of Columbia or of the territories or possessions of the United States. The addresses and telephone numbers of the regional civil rights offices are included at the back of the pamphlet.

**NONDISCRIMINATION IN EMPLOYMENT UNDER TITLE VI**

Title VI of the Civil Rights Act of 1964 protects people from discrimination based on race, color, or national origin in employment and employment practices in programs or activities receiving Federal financial assistance, where the primary purpose of the Federal assistance is employment or where the discriminatory practice has an impact on program beneficiaries.

The ED regulation for Title VI forbids employment discrimination in two distinct situations. First, where the primary purpose of the Federal assistance is to provide employment, the recipient may not discriminate on the basis of race, color, or national origin against applicants for employment or employees in that program. For example, Title VI prohibits discrimination against applicants for or participants in "work-study" programs that receive Federal assistance.

Second, where the primary purpose of the Federal assistance is not to provide employment, discrimination against employees or applicants for employment is prohibited by Title VI when the discriminatory practice results in discrimination against the program beneficiaries, usually students.

The ED regulation for Title VI encompasses, but is not limited to, recruitment, advertising, employment, layoffs, firing, upgrading, demotions, transfers, rates of pay and other forms of compensation, and uses of facilities. The regulation applies to all employment decisions and actions made directly by ED recipients, as well as those made indirectly through contractual arrangements or other relationships with organizations such as employment agencies, labor unions, organizations providing or administering fringe benefits, and organizations providing training and apprenticeship programs.

The Civil Rights Act of 1964 also contains Title VII, which deals more comprehensively than Title VI with employment. Title VII is administered nationally by the Equal Employment Opportunity Commission (EEOC). Unlike Title VI, Title VII covers only employment discrimination, and includes employment by every kind of employer, not just recipients of Federal financial assistance. However, Title VII coverage is limited to employers of 15 employees or more. Under Government-wide procedures, OCR refers many employment complaints to EEOC for investigation and potential conciliation.

Also, unlike Title VI, Title VII's coverage includes religion and sex discrimination. Title VII prohibits discrimination on the basis of race, color, religion, sex, or national origin in employment. For additional information regarding Title VII, contact your local EEOC office.

 

**NONDISCRIMINATION IN EMPLOYMENT UNDER TITLE IX**

Title IX of the Education Amendments of 1972 protects people from discrimination on the basis of sex in employment and employment practices in education programs or activities receiving Federal financial assistance.

The prohibition on discrimination in employment in the ED regulation for Title IX encompasses, but is not limited to, recruitment, advertising, hiring, upgrading, tenure, firing, rates of pay, fringe benefits, leave for pregnancy and childbirth, and participation in employer-sponsored activities. The regulation applies to all employment decisions by ED recipients, whether made directly or indirectly through contractual arrangements with referral agencies, labor unions, organizations providing or administering fringe benefits, or others.

Selected requirements of the regulation are summarized below.

**Compensation**

Under Title IX, recipients of Federal financial assistance cannot establish or enforce policies that result in unequal compensation to employees on the basis of sex in jobs that require equal skill, effort, and responsibility, and that are performed under similar conditions.

**Employment Tests**

An employment test that screens out people on the basis of sex may not be used unless the test is shown to validly predict successful performance in the position in question, and alternative tests are shown to be unavailable.

**Pre-employment Inquiries**

The regulation makes a distinction between inquiries about marital status and inquiries about gender. Marital status inquiries are prohibited. Inquiries about gender are permissible when they are made equally for both sexes and are not used for discriminatory purposes. For example, it is permissible to ask the sex of applicants to develop "applicant flow data" to monitor equal employment opportunity.

**Marital or Parental Status**

Federal recipients, under Title IX, may not establish or enforce policies concerning the current or potential marital or parental status of employees or applicants. Also, recipients may not differentiate on the basis of sex over whether a person is the head of a household or the principal wage earner in a family.

Title IX requires recipients to treat pregnancy and related conditions the same as other temporary disabilities. This includes the granting of leave, payment of disability income, accrual of seniority, and the provision of other benefits and services. For example, a pregnant woman must be given the same benefits and rights provided a man who temporarily leaves work due to a broken arm. However, if a temporary disability plan does not cover elective procedures, then an institution need not cover, for example, elective surgery.

Title IX neither requires nor prohibits an employer from providing or paying for any benefit or service, including the use of facilities, related to an abortion. The law does not permit a penalty to be imposed on any person because she is seeking or has received any benefit or service related to a legal abortion.

**Sex as a Bona-fide Occupational Qualification**

Recipients may engage in action otherwise prohibited by Title IX if sex is shown to be a bona-fide occupational qualification for a job. For example, recipients may consider an applicant's sex when hiring for a position in a locker room or toilet facility used only by one sex.

**Religious Exemption**

Under the Title IX regulation, an institution that is controlled by a religious organization is exempt from those sections of the regulation that are inconsistent with the religious tenets of the organization. Institutions may, under the religious exemption provision, fill certain employment positions on the basis of sex, if this practice is consistent with the tenets of the institution's controlling religious organization. For example, some institutions, recognized by OCR as exempt from certain employment sections of the Title IX regulation, have hired male religious leaders to teach classes training future religious leaders.

**NONDISCRIMINATION IN EMPLOYMENT UNDER SECTION 504**

The Department of Education Section 504 regulation prohibits discrimination against qualified handicapped persons in all employment-related decisions and actions in federally assisted programs. The prohibition of discrimination in employment in the Section 504 regulation includes, but is not limited to, recruitment, hiring, promotion, award of tenure, layoff and rehiring, rates of pay, fringe benefits, leave, job assignment, training, and participation in employer-sponsored activities.

A qualified handicapped person is any individual with a handicap who, with reasonable accommodation, can perform the essential functions of a job. The employment prohibitions of the Section 504 regulation apply to decisions and actions made directly by recipients, as well as those made indirectly through contractual arrangements or other relationships with organizations such as employment agencies, labor unions, organizations providing or administering fringe benefits, and organizations providing training and apprenticeship programs.

Under the Section 504 regulation:

• Reasonable         accommodation may include making facilities used by employees accessible to and usable by individuals with handicaps, job restructuring, modifying work schedules, acquiring new or modifying existing equipment, or         providing a reader for a blind person or an interpreter         for a deaf person.
• If a recipient can         demonstrate that an accommodation would impose undue         hardship on the operation of its program, it is not         obligated to provide the accommodation.
• A recipient excused         from providing an accommodation may not discriminate         against a handicapped applicant or employee who is able and willing to make his or her own arrangements to provide the accommodation.
• Recipients are obligated to make reasonable accommodation only to the         known mental and physical limitations of an otherwise qualified handicapped person.

Other selected requirements of the regulation are summarized below.

**Employment Tests**

Recipients may not use employment tests or criteria that screen out qualified handicapped persons unless the test scores or criteria are shown to be job related, and alternatives are shown to be unavailable. Recipients must select and administer tests to ensure that the results reflect the applicant's or employee's ability, job skills or other factors the test is designed to measure, rather than the person's impaired sensory, manual, or speaking skills, except where those skills are the factors the test is designed to measure.

**Pre-employment Inquiries and Medical Examinations**

Recipients may not make pre-employment inquiry as to whether an applicant is handicapped, or about the extent of a handicap, unless the recipient is taking remedial action to correct the effects of past discrimination, voluntary action to overcome limited program participation by individuals with handicaps or affirmative employment action under Section 503 of the Rehabilitation Act. In each instance, the recipient must inform the applicant of the primary purpose and voluntary nature of the inquiry, and that the information provided will be kept confidential.

Recipients may, however, make pre-employment inquiry into an applicant's ability to perform job-related functions; and, after an employer has made a conditional offer of employment, a medical examination may be required, provided all entering employees are subjected to a medical examination and provided the results are not used in a discriminatory manner.

**Alcoholics and Drug Addicts**

The term "handicapped person" includes alcoholics and drug addicts when the person's condition substantially limits a major life activity. However, any individual whose current use of alcohol would prevent that person from performing the duties of a job or whose employment would constitute a direct threat to property or the safety of others would not be a "qualified handicapped person" entitled to the protection of Section 504.

The term "handicapped person" also does not include an individual who is currently engaging in illegal use of drugs. However, a person undergoing treatment for drug addiction could, if he or she is no longer using drugs, be considered a "handicapped person."

**HOW TO FILE A DISCRIMINATION COMPLAINT WITH OCR**

Anyone who believes that an educational institution that receives Federal financial assistance has discriminated against someone on the basis of race, color, national origin, sex, handicap, or age may file a complaint with OCR. The person or organization filing the complaint need not be a victim of the alleged discrimination, but may complain on behalf of another person or group.

A complaint must be filed within 180 calendar days of the date of the alleged discrimination, unless the time for filing is extended by OCR for good cause. Prior to filing a complaint with OCR against an institution, a potential complainant may want to find out about the institution's grievance process and use that process to have the complaint resolved. A complainant is not required by law to use the institutional grievance procedure before filing a complaint with OCR. If a complainant uses an institutional grievance process and also chooses to file the complaint with OCR, the complaint must be filed with OCR within 60 days after the last act of the institutional grievance process.

For further assistance in filing a complaint, contact the OCR regional office that serves the state in which the alleged discrimination occurred. A list of regional offices and states is provided at the end of this pamphlet.

U.S. DEPARTMENT OF EDUCATIONOFFICE FOR CIVIL RIGHTS****b>REGIONAL CIVIL RIGHTS OFFICES

Date of Document 08/01/1991

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