Caregiver Discrimination In Education

Caregiver Discrimination
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Consider these two scenarios:
Stephanie Stewart, pregnant with her first child, is an honors student in community college. She asks the professor of her women’s studies class whether she can make up assignments that she will miss due to labor, delivery, and doctors’ appointments. The professor, a woman, denies her request.(Checkout “New Lawsuits Shine the Lighton Pregnancy Discrimination,” by Jessica Grose of Slate Magazine.

Or how about this one:
Gina is a student in a college course. She is pregnant and due to give birth toward the end of the semester. She talks to her professor, explaining that she will need time off for the baby. The female professor says no problem. Before the baby shows up, Gina misses some class time for reasons related to her pregnancy. When midterm marks come out, Gina gets a five out of twenty-five for class participation. Gina raises this with the professor, who says, “You can only get credit for class participation if you are in class.” When Gina protests that she wasn’t skipping classes for the fun of it —she missed class because of her pregnancy — the professor says, “Too bad, the university says I can set any attendance policy I want.” Gina calls the department head, who help fully explains, “Well, university policy do essay she can setup any attendance policy she wants, so…”

Is what happened to Gina and Stephanie legal? Not under the federal law Title IX. In fact, both women got their respective universities to back down, but only after they threatened to take the legal action under Title IX for pregnancy discrimination.

Title IX

All educational institutions that receive federal aid, including private universities that accept it, are covered by Title IX, 20 U.S.C.§1681(a). Title IX has justifiably received significant attention in the press for its use in combating in equalities in female athletics and sexual harassment on college campuses. As noted in an article, “Title IX and Pregnancy Discrimination in Higher Education: The New Frontier,” by Mary Ann Masonand Jaclyn Younger (http://www.law.berkeley.edu/files/bccj/Title_IX_Law_Review_Article_Final_5.29-3-5.pdf), Title IX is a powerful tool available to teachers and students subject to pregnancy and caregiver discrimination. This is a critically important issue for women in education, especially for students in lengthy courses of study such as Ph D and professional programs. These programs often span a time in their lives when they may startand raise families. Similarly, students in community colleges are often old errand more likely to be balancing school with family responsibilities. Those who work in education as teaching assistants and in post doctoral programs, because of their part-time status, may not be covered by other laws like Title VII or the FMLA, but they are covered by Title IX. (Title IX is similar to Title VI, which makes it illegal to, among other things, exclude anyone on the basis of race from an educational program that received federal funding.)

The language of Title IX is very broad. Itreads:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

It also explicitly makes discrimination on the basis of family status and pregnancy illegal

A recipient shall not apply any policy or take any employment action:

  • Concerning the potential marital, parental, or family status of an employee or applicant for employment which treats persons differently on the basis of sex;…
  •  Pregnancy. A recipient shall not discriminate against or exclude from employment an yemployee or applicant for employment on the basis of pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery there from.
  • Pregnancy as a temporary disability. A recipient shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy, and recovery there from and any temporary disability resulting there from 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 rein statement, and under any fringe benefit offered to employees by virtue of employment.
  •  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 within sufficient 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 there from 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.

Title IX actually has significant advantages over actions brought under the PDA. Unlike the PDA, Title IX states that pregnancy must be treated as a temporary disability. This means that a woman bringing an action under Title IX must be given light duty or other accommodations recommended by her health-care provider. Not so under the PDA. Also, Title IX has no caps on compensatory damages (e.g., pain and suffering). In contrast, the PDA tops out at $300,000 for the biggest employers. But as a practical matter, this makes very little difference. It is a rare case where a court will allow a compensatory damages award that exceeds $300,000.

Taking Action Under Title IX

If you want to take action under Title IX, you have two options. You can file an administrative claim with the US Department of Education (DOE), Civil Rights Division. No attorney is required, and there is no cost to file. The down side of filing this way is that the DOE has short statute limitations of 180 days after the discriminatory event. Also, like most administrative agencies, the DOE is under staffed and over worked. So, for many cases, it conducts a cursory investigation and denies most claims. Still, DOE does take action in some cases. Simply filing is often enough to get a university to wake up and comply with the law. However, the DOE will not award monetary damages.

The second option is to file in federal court. You need not file with DOE first —you can go straight to court. The downside to this is that you will probably need an attorney, and there is an expense involved. The filing fee alone is $400. The upside is the availability of money damages and speed. In court, you can ask for a temporary restraining order to quickly force the university to take action. For instance, let’s suppose that you are a post doctoral student, and your supervisor has just told you that you can take time off to recover after a difficult delivery, but that he is going to have to give your lab to someone else because, “You know, I just can’t afford to have the things it empty.” This is bad. It took you two years to pull that lab together, and you are working on some research that literally could make your career. All of that goes down the tubes if you lose lab privileges.

What can you do? Going to the DOE isn’t going to help. The department moves too slowly. You’re going to need to file in court immediately and ask the court to enter a temporary restraining order (TRO) against the university to stop your direct or from taking away your lab. Most courts will hear a TRO in a matter of days. (Note that this does not mean that your lawsuit gets resolved in matter of days. A TRO basically means the court —if it finds that you have a likelihood of winning and that, if the court doesn’t take action immediately, you will suffer irreparable harm—will basically stop things in place while the case goes forward.)