C.F.R. » Title 34 » CHAPTER I—OFFICE FOR CIVIL RIGHTS, DEPARTMENT OF EDUCATION › PART 106—NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE › Subpart E—Discrimination on the Basis of Sex in Employment in Education Programs or Activities Prohibited

34 C.F.R. § 106.61

Sex as a bona-fide occupational qualification

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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.

[45 FR 30955, May 9, 1980, as amended at 85 FR 30579, May 19, 2020]
Notes of Decisions
Cited in 2 cases, 1980–2015 · leading case: Johnston v. Univ. of Pittsburgh of the Commonwealth Sys. of Higher Educ., 97 F. Supp. 3d 657 (W.D. Pa. 2015).
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Johnston v. Univ. of Pittsburgh of the Commonwealth Sys. of Higher Educ., 97 F. Supp. 3d 657 (W.D. Pa. 2015). “” 34 C.F.R. § 106.61 . Indeed, the statute itself allows for sex-segregated living spaces: Notwithstanding anything to the contrary contained in this chapter, nothing contained herein shall be construed to prohibit any educational institution receiving funds under this Act, from…”
North Haven Bd. of Educ. v. Shirley M. Hufstedler, Trumbull Bd. of Educ. v. United States Dep't of Educ. & Linda Potz, 629 F.2d 773 (2d Cir. 1980). “61 (now 34 C.F.R. § 106.61 (May 9, 1980)). This eliminated the possible inconsistency that HEW could withdraw funds under Title IX for sex discrimination that is expressly authorized under the BFOQ exception of Title VII.”
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