Understanding Title IX and the New Sexual Harassment Regulations for School Boards

addition, the school system may not discriminate based on sex with regard to fringe benefits such as medical, hospital, accident, life insurance or retirement benefits, services, policies, or plans, and leave. 71 EMPLOYMENT TESTS An employment test that screens out applicants on the basis of sex may not be used, unless the test is shown to validly predict successful performance in the position, and alternative tests are unavailable.72 PRE-EMPLOYMENT INQUIRIES The Title IX regulations make a distinction between questions about marital status and questions about gender. Questions about marital status are prohibited. This includes asking on an application whether an applicant is a “Miss or Mrs.” An employer may make a pre-employment inquiry about gender when the inquiry is made equally for both sexes and is not used for discriminatory purposes. For example, it is permissible for an employer to ask the sex of applicants to develop “applicant flow data” to monitor equal employment opportunity.73 MARITAL OR PARENTAL STATUS Under Title IX, an employer also may not discriminate or establish practices based on the current or potential marital or parental status of employees or applicants.

The employer also may not differentiate on the basis of sex by asking whether a person is the head of a household or the primary wage earner in a family.

Title IX requires employers 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. 74 SEX AS A BONA-FIDE OCCUPATIONAL QUALIFICATION Employers 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, employers may consider an applicant’s sex when hiring for a position in a locker room or toilet facility used only by one sex. An employer cannot, however, claim a bona-fide occupational qualification exists based on stereotyped characterizations of one sex or the other.75 19