$ 86.47 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, or establish or follow any policy or practice which so discriminates or excludes. For the purpose of this subpart, "pregnancy" means the entire process of pregnancy, childbirth, and recovery therefrom, and includes false pregnancy, miscarriage, and abortion.

(c) Pregnancy as a temporary disability. A recipient shall treat disabilities caused or contributed to by pregnancy as temporary disabilities for all jobrelated 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 temporary disability 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 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 her original job or to a comparable position, without decrease in rate of compensation or loss of promotional opportunities, or any other right or privilege of employment.

(e) Inception of and return from pregnancy leave. In complying with this section, a recipient shall not require any employee to:

(1) Begin leave related to pregnancy so long as the employee's physician certifies in writing that she is physically capable of performing her duties, provided that a preghant employee shall notify her employer in writing of her expected date of delivery, at least 120 days prior to such date; or

(2) Return to her employment after a leave related to pregnancy later than two weeks after the employee's physician certifies in writing that she is physically capable of performing her duties, or in the case of any employee in a teaching positon, later than the beginning of the first full academic term commencing after such certification is made.

(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682)

$86.48 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)

§ 86.49 Advertising.

A recipient shall not in any advertising related to employment indicate preference, limitation, specification, or discriminaton based on sex unless sex is a bonafide 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)

$86.50 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 "Ms., 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.

§ 86.51 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)

§§ 86.52-86.60 [Reserved]

SUBPART F-PROCEDURES

§ 86.61 Compliance information.

(a) Cooperation and assistance. The Director will to the fullest extent practicable seek the cooperation of recipients in obtaining compliance with this part and will provide assistance and guidance to recipients to help them comply voluntarily with this part.

(b) Compliance reports. Each recipient shall keep such records and submit to the Director timely, complete and accurate compliance reports at such time, and in such form and containing such information, as the Director may determine to be necessary to enable him or her to ascertain whether the recipient has complied or is complying with this part. For example, recipients shall have available for the Department data showing the extent to which members of the different sexes are students, employees or other beneficiaries of or participants in federally-assisted education programs and activities. In the case of any such program or activity under which one recipient extends Federal financial assistance to any other recipient, such other recipient shall also submit such compliance reports to the primary recipient as may be necessary to enable the primary recipient to carry out its obligations under this part.

(c) Access to sources of information. Each recipient shall permit access by the Director during normal business hours to such of its books, records, accounts, and other sources of information, and its facilities, and shall permit the Director to make copies of any such written information, as may be pertinent to ascertain compliance with this part. Where any information required of a recipient is in the exclusive possession of any other agency, institution or person and such agency, institution or person fails or refuses to furnish such information the recipient shall so certify in its report and shall set forth what efforts it has made to obtain the information. Asserted considerations of privacy or confidentiality may not operate to bar the Department from evaluating or seeking to enforce compliance with this part. Information of a confidential nature obtained in connection with compliance evaluation or enforcement will not be disclosed by the Department except where necessary in formal enforcement proceedings or where otherwise required by law.

(Sec. 902, Education Amendments of 1972, 86 Stat. 374; 20 U.S.C. 1682) $86.62 Conduct of investigation.

(a) Periodic compliance reviews. The Director will from time to time review the practices of recipients to determine whether they are complying with this part.

(b) Complaints. Any person who believes himself or herself or any specific class of individuals to be subjected to discrimination prohibited by this part may be himself or herself or by a representative file with the Director a written complaint. A complaint must be filed not later than 180 days from the date of the alleged discrimination, unless the time for filing is extended by the Director, or unless the alleged discrimination took place after June 30, 1972, but prior to the effective date of this part. The Director shall notify each complainant promptly, in writing, that the complaint has been received.

(c) Investigations. The Director will make a prompt investigation whenever a compliance review, report, complaint, or any other information indicates a possible failure to comply with this part. The investigation will include, where appropriate, a review of the pertinent practices and policies of the recipient, the circumstances under which the possible noncompliance with this part occurred, and other factors relevant to a determination as to whether the recipient has failed to comply with this part.

(d) Resolution of matters. (1) If an investigation pursuant to paragraph (c) of this section indicates a failure to comply with this part, the Director will so inform the recipient and the complainant, if any, and the matter will be resolved by informal means whenever possible. If it has been determined that the matter cannot be resolved by informal means, action will be taken as provided for in § 86.63.

(2) If, after an investigation pursuant to paragraph (c) of this section, it appears that action pursuant to paragraph (d)(1) of this section is not warranted, the Director will so inform each complainant, in writing, and will give each complainant the opportunity to submit additional information, orally or in writing. Such information will be reviewed promptly and the Director will notify the complainant, in writing, of what action appears to be warranted in light of the information.

(3) If after an investigation pursuant to paragraph (c) of this section or after action required by paragraph (d) (2) of this section, it appears that action pursuant to paragraph (d)(1) of this section is not warranted, the Director will so inform the recipient and each complainant, in writing.

(e) Intimidatory or retaliatory acts prohibited. Each recipient shall permit the Director to interview any of its students or employees without a representative of such recipient being present. No recipient or other person shall intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by section 901 of the Education Amendments of 1972 or this part, or because he or she has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this part. The identity of complainants will be kept confidential by the Department except to the extent necessary to carry out the purposes of this part, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder, or where otherwise required by law.

(Sec. 902, Education Amendments of 1972, 86 Stat. 374, 20 U.S.C. 1682)

§ 86.63 Procedure for effecting compliance.

(a) General. If there appears to be a failure or threatened failure to comply with this part, and if the noncompliance or threatened noncompliance cannot be corrected by informal means, compliance with this part may be effected by the suspension or termination of or refusal to award or continue Federal financial assistance in accordance with the procedures of paragraph (c) of this section or by any other means authorized by law. Such other means may include, but are not limited to, (1) a referral to the Department of Justice with a recommendation that appropriate proceedings be brought to enforce any rights of the United States under any law of the United States, or any assurance or other contractual undertaking, and (2) any applicable proceeding under State or local law.

(b) Noncompliance with § 86.4. If an applicant or recipient fails or refuses to furnish an assurance required under § 86.4 or otherwise fails or refuses to comply with a requirement imposed by or pursuant to that section, Federal financial assistance may be refused in accordance with the procedures of paragraph (c) of this section. The Department will not be required to provide assistance in such a case during the pendency of the administrative proceedings under such paragraph except that the Department will continue assistance during the pendency of such proceedings where such assistance is due and payable pursuant to an application therefor approved prior to the effective date of this part.

(c) Termination of or refusal to grant or to continue Federal financial assistance. No order suspending, terminating or refusing to award or continue Federal financial assistance will become effective until (1) the Director has advised the applicant or recipient of its failure to comply and has determined that compliance cannot be secured by voluntary means, (2) there has been a finding on the record, after opportunity for hearing, of a failure by the applicant or recipient to comply with a requirement imposed by or pursuant to this part, and (3) 30 days have expired after the Secretary has filed with the committee of the House and the committee of the Senate having legislative jurisdiction over the program involved, a full written report of the circumstances and the grounds for such

action. Any action to suspend or terminate or to refuse to award or continue Federal financial assistance shall be limited to the particular political entity, or part thereof, or other applicant or recipient as to whom such a finding has been made and shall be limited in its effect to the particular education program or activity or part thereof in which such noncompliance has been so found.

(d) Other means authorized by law. No action to effect compliance by any other means authorized by law will be taken until (1) the Director has determined that compliance cannot be secured by voluntary means, (2) the recipient or other person and the complainant, if any, has been notified of the recipient's failure to comply and of the action to be taken to effect compliance, and (3) the expiration of at least 10 days from the mailing of such notice to the recipient or other person. During this period of at least 10 days additional efforts will be made to persuade the recipient or other person to comply with this part and to take such corrective action as may be appropriate.

(Secs. 902, Education Amendments of 1972, 86 Stat. 374; 20 U.S.C. 1682)

$86.64 Hearings.

(a) Opportunity for hearing. Whenever an opportunity for a hearing is required by $86.63 (c), responsible notice will be given by registered or certified mail, return receipt requested, to each affected applicant or recipient. This notice will advise such applicant or recipient of the action proposed to be taken the specific provision under which the proposed action against it is to be taken and the matters of fact or law asserted as the basis for this action, and either (1) fix a date not less than 20 days after the date of such notice within which the applicant or recipient may request, by certified or registered mail addressed to the Director, that the matter be scheduled for hearing or (2) advise such applicant or recipient that the matter in question has been set down for hearing at a stated place and time. The time and place so fixed will be subject to change for cause. A copy of this notice will be mailed by certified mail, return receipt requested, to each individual complainant, and to each organization or group which has filed a complaint on behalf of one or more individuals pursuant to § 86.62(b), and each such complainant, organization, or group will be advised of the time and place of the hearing. An applicant or recipient may waive a hearing and submit written information and argument for the record. The failure of an applicant or recipient to request a hearing for which a date has been set shall be deemed to be a waiver of the right to a hearing under section 902 of the Education Amendments of 1972 and § 86.63 (c) of this regulation and consent to the making of a decision on the basis of such information as may be filed as the record.

(b) Time and place of hearing. Hearings will be held before an administrative law judge designated in accordance with 5 U.S.C. 3105 and 3344. Hearings will be held at the offices of the Department in Washington, D.C., at a time fixed by the Director unless the administrative law judge determines that the convenience of the applicant or recipient or of the Department requires that another place be selected.

(c) Participation as amicus curiae. Each individual complainant, and each organization or group which has filed a complaint on behalf of one or more individuls, may petition the administrative law judge for leave to participate as amicus curiae, by giving testimony, by filing a brief, or both, in a hearing held pursuant to paragraph (a) of this section in any matter concerning which such complainant, organization, or group, has filed a complaint pursuant to § 86.62(b). Such petition shall be made no more than 20 days after the date of the notice prescribed by paragraph (a) of this section. Leave to participate as amicus curiae shall be liberally granted.

(d) Right to counsel. In all proceedings under this section, the recipient shall have the right to be represented by counsel.

(e) Procedures, evidence, and record. (1) The hearing, decision, and any administrative review thereof shall be conducted in conformity with 5 U.S.C. 554– 557 and in accordance with such rules of procedure as are proper (and not inconsistent with this section) relating to the conduct of the hearing, giving of notices subsequent to those provided for in paragraph (a) of this section, taking of testimony, exhibits, arguments and briefs, requests for findings, and other related matters. Both the Department and the recipient shall be entitled to introduce all relevant evidence on the issues as stated in the notice for hearing or as determined by the officer conducting the hearing at the outset of or during the hearing. Any person (other than a Government employee on official business)

who, having been invited or requested to appear and testify as a witness on the Government's behalf, attends at a time and place scheduled for a hearing provided by this part, may be reimbursed for his or her travel and actual expenses of attendance in an amount not to exceed the amount payable under the standardized travel regulations to a Government employee traveling on official business. (2) Technical rules of evidence shall not apply to hearings conducted pursuant to this part, but rules or principles designed to assure production of the most credible evidence available and to subject testimony to test by crossexamination shall be applied where reasonably necessary by the officer conducting the hearing. The hearing officer may exclude irrelevant, immaterial, or unduly repetitious evidence. All documents and other evidence offered or taken for the record shall be open to examination by the parties and opportunity shall be given to refute facts and arguments advanced on either side of the issues. A transcript shall be made of the oral evidence except to the extent the substance thereof is stipulated for the record. All decisions shall be based upon the hearing record and written findings shall be made.

(f) Consolidated or joint hearings. In cases in which the same or related facts are asserted to constitute noncompliance with this part with respect to two or more programs to which this part applies, or noncompliance with this part and the regulations of one or more other Federal departments or agencies issued under title IX, the Director may, by agreement with such other departments or agencies where applicable, provide for the conduct of consolidated or joint hearings, and for the application to such hearings of rules of procedures not inconsistent with this part. Final decisions in such cases, insofar as this regulation is concerned, shall be made in accordance with § 86.65.

(Sec. 902, Education Amendments of 1972, 86 Stat. 374; 20 U.S.C. 1682) $86.65 Decisions and notices.

(a) Decisions by administrative law judges. Within 30 days after a hearing is held by an administrative law judge such administrative law judge shall either make an initial decision, if so authorized, or certify the entire record including his or her recommended findings and proposed decision to the reviewing autohrity for a final decision, and a copy of such initial decision or certification shall be mailed to the applicant or recipient and to the complainant, if any. Where the initial decision referred to in this paragraph or in paragraph (c) of this section is made by the administrative law judge, the applicant or recipient or the Department may within 20 days after issuance of the initial decision, file with the reviewing authority exceptions to the initial decision, with his or her reasons therefor. Upon the filing of such exceptions the reviewing authority shall review the initial decision and issue its own decision including the reasons therefor. In the absence of exceptions the initial decision shall constitute the final decision, subject to the provisions of paragraph (e) of this section.

(b) Decisions on record or review by the reviewing authority. Whenever a record is certified to the reviewing authority for decision or it reviews the decision of an administrative law judge pursuant to paragraph (a) or (c) of this section, the applicant or recipient shall be given reasonable opportunity to file with it briefs or other written statements of its contentions, and a copy of the final decision of the reviewing authority shall be given in writing to the applicant or recipient and to the complainant, if any.

(c) Decisions on record where a hearing is waived. Whenever a hearing is waived pursuant to § 86.64 (a) the reviewing authority shall make its final decision on the record or refer the matter to an administrative law judge for an initial decision to be made on the record. A copy of such decision shall be given in writing to the applicant or recipient, and to the complainant, if any.

(d) Rulings required. Each decision of an administrative law judge or reviewing authority shall set forth a ruling on each finding, conclusion, or exception presented, and shall identify the requirement or requirements imposed by or pursuant to this part with which it is found that the applicant or recipient has failed to comply.

(e) Review in certain cases by the Secretary. If the Secretary has not personally made the final decision referred to in paragraph (a), (b), or (c) of this section, a recipient or applicant or the Department may, within 30 days after issuance of the final decision by the reviewing autohrity, request the Secretary to review such decision. Such review is not a matter of right and will be granted only where the Secretary determines there are special and important reasons therefor. The Secretary's decision to undertake or not to undertake review will