Job Corps Family Planning and Pregnancy Policy Changes

1. Job Corps Family Planning and Pregnancy Policy Changes Robin R. Runge, Senior Policy Advisor, Civil Rights Center John Kulig, MD, MPH, Lead Medical Specialist, Job Corps

2. Agenda • Review applicable anti-discrimination laws • Review changes to Job Corps' family planning and pregnancy policies • Discuss MSWR and transportation policy changes • Q & A

3. Workforce Innovation and Opportunity Act/Workforce Investment Act (Section 188) The Workforce Investment Act nondiscrimination provisions state that no “individual shall be excluded from participation in, denied the benefits of, subjected to discrimination under, or denied employment in the administration of or in connection with any such program or activity because of race, color, religion, sex, (except as otherwise permitted under Title IX of the Education Amendments Act of 1972 (20 U.S.C. § 1681 et seq.)), national origin, age, disability, or political affiliation or belief.” 29 U.S.C. § 2938(a). The nondiscrimination provisions that apply to the federally-assisted workforce system prohibit both “disparate treatment” – intentionally treating women differently based on their pregnancy – and “disparate impact” – the use of policies or practices that are neutral on their face, but have a disproportionate impact on women who are pregnant and are not job related and consistent with business necessity.

4. Title IX of the Education Amendments Act of 1972 “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.” 20 U.S.C. § 1681. “A recipient shall not discriminate against any student or exclude any student from its educational program or activity, including any class or extracurricular activity, on the basis of the student’s pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery therefrom, unless the student requests voluntarily to participate in a separate portion of the program or activity of the recipient.” 34 C.F.R. § 106.40(b)(1).

5. Title VII of the Civil Rights Act of 1964 Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., prohibits employers and employment agencies, as defined in the statute, from discriminating based on race, color, religion, sex, or national origin. Discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII. “The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth or related medical conditions; and women affected by pregnancy, childbirth or related medical conditions shall be treated the same for all employment-related purposes….as other persons not so affected but similar in their ability or inability to work.” 42 U.S.C. § 2000(k).

6. Title VII of the Civil Rights Act (con’t) • Job Corps centers may be regarded as “employment agencies” as defined in Title VII. • Therefore, they are not permitted “to fail or refuse to refer for employment, or otherwise discriminate against, any individual” because of her pregnancy or pregnancy related medical condition. 42 U.S.C. § 2000e-2(b). • They also may not “print or publish or cause to be printed” any job announcement that discriminates based pregnancy unless there is a bona fide occupational qualification for a preference based on sex. • It is also a violation of Title VII for any employer to discriminate against any individual because of her race, color, religion, sex or national origin in admission to or employment in any program established to provide apprenticeship or other training including on-the-job training. 2000e-2(d).

7. Title II of the Americans with Disabilities Act & Section 504 of the Rehabilitation Act Section 504 of the Rehabilitation Act of 1973 states that “No otherwise qualified individual with a disability in the United States….shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance…” 29 U.S.C. § 794(a).

8. Americans With Disabilities Act and Rehabilitation Act (Con’t) The ADA and the Rehabilitation Act define a disability as “a physical or mental impairment that substantially limits one or more major life activities of [an] individual…a record of such impairment… or being regarded as having such an impairment…” 42 U.S.C. § 12102(1). Pregnancy is not an impairment and cannot be a disability under the ADA. However, certain impairments or pregnancy related medical conditions resulting from pregnancy may be disabilities if they substantially limit a major life activity. This could include gestational diabetes or preeclampsia as pregnancy-related disabilities. See EEOC Question and Answers on the Final Rule Implementing the ADA Amendments Act of 2008 #23 http://www.eeoc.gov/laws/regulations/ada_qa_final_rule.cfm.

9. Purpose of Revision • Job Corps’ pregnancy policies have been revised to ensure equal access to the Job Corps program for applicants/students who are pregnant and/or experiencing pregnancy-related medical conditions.

10. Overarching Change • Students who are pregnant and/or experiencing pregnancy-related medical conditions shall be afforded the same access to medical services, leave and medical separation as any other student experiencing a medical condition, unless otherwise provided by law.

11. Family Planning [PRH 6.11, R5] Old Policy New Policy “A family planning program shall be provided to all students on a voluntary basis. At a minimum, this program shall include counseling, health promotion activities, and medical services, including birth control.” • “A family planning program shall be provided to all students on a voluntary basis. At a minimum, this program shall include counseling, health promotion activities, and medical services.”

12. Birth Control Options • On center: • Oral contraceptive pills • Contraceptive patch (OrthoEvra) • Contraceptive ring (NuvaRing) • Contraceptive injection (DepoProvera) • Emergency contraception (Plan B/ella) • Male condoms • Female condoms

13. Birth Control Options • Off center: • Long Acting Reversible Contraceptives (LARCs) • Contraceptive implant (Nexplanon) • Intrauterine device (Mirena, Skyla, Paragard)

14. Separation Timeframes Old Policy New Policy No mandatory separation timeframes The center physician and/or obstetrical provider and the pregnant student will agree on a care management and separation plan that considers the health and safety of the student before and after childbirth • Required a student be separated if she was more than 12 weeks pregnant on entry • Required all pregnant students be separated at 28 weeks

15. Separation Timeframes • Case examples: • A 19-yr-old student is found to be 16 weeks pregnant at the entrance exam. • A 17-yr-old student develops bleeding and cramping at 26 weeks gestation. • A 22-yr-old student at 36 weeks gestation needs two more weeks to complete her trade and graduate from Job Corps.

16. Health Insurance • Medicaid health insurance for both mother and child should be available for all uninsured pregnant Job Corps students but eligibility criteria may vary by state. • HWM should be aware of eligibility requirements for center location. • Medicaid enrollment should be initiated as soon as pregnancy is confirmed.

17. Determining Motivation Old Policy New Policy This requirement has been removed. • Under the previous policy, Health and Wellness staff members were required to determine whether a pregnant student was “sufficiently motivated” to continue in Job Corps.

18. Transportation Old Policy New Policy The center shall identify available community health/social resources and services, and will make arrangements for transportation for the purpose of obtaining such resources and services consistent with PRH 6.6, R4 (d). In lieu of the center providing transportation, the center may approve a student’s request to be transported by a friend, partner or family member. • Policy did not address transportation for prenatal care. • Center staff was not permitted to provide transportation if a student chose to terminate her pregnancy.

19. Payment for Pregnancy Termination Old Policy New Policy The center shall not pay for pregnancy termination unless the pregnancy is the result of rape or incest or unless a physician has certified that the student suffers from a physical disorder, injury, illness, or condition that places her in danger of death unless pregnancy termination is performed. • The center shall not pay for direct or indirect pregnancy termination services or expenses (i.e., transportation or staff escort), unless the Center Director and center physician consider the procedure necessary to safeguard the life of the student or in the case of rape.

20. Leave Status Old Policy New Policy Leave status for students with pregnancy-related medical conditions, including students experiencing medical conditions related to the termination of a pregnancy, will be paid administrative leave. [Exhibit 6-1] • A student who chose to terminate her pregnancy was placed on leave without pay.

21. Parental Notification • Updated language: If required by applicable state laws in which the center is located, the center shall notify the student’s parent/guardian of her pregnancy if she is a minor, and if required by applicable state law, inform the student of this requirement prior to the disclosure.

22. Parental Notification • Many states require parental consent and/or notification for a minor (under age 18) to obtain a pregnancy termination. • In other states, minors are not required to notify parents of pregnancy or termination, and notification without student consent would violate state law. • Know your state laws! A summary of current state laws can be found at: http://www.plannedparenthood.org/health-info/abortion/parental-consent-notification-laws

23. HIV Testing and Pregnancy Old Policy New Policy This requirement has been removed • Pregnant students were routinely tested for HIV

24. HIV Testing and Pregnancy • Rationale • HIV testing is routinely included with the blood studies obtained for prenatal care off center • No need to duplicate laboratory studies

25. Transportation for MSWR • New policy: Centers must now ensure that Health and Wellness staff members approve a student’s transportation plan for medical separation. [PRH 6.12, R11]

26. Transportation for MSWR • Health and Wellness staff will consider: • Presence of a communicable disease • Student’s clinical status and stability, both medical and mental health • Student safety • Staff safety • Availability of family members to provide transportation

27. MSWR Extension • New policy: Center staff must submit a request to the Regional Office to extend an MSWR beyond 180 days for extenuating circumstances. The request should be accompanied by supporting documentation from the student’s health-care provider verifying that extension of leave is medically necessary. Requests will be reviewed on a case-by-case basis. [PRH 6.12, R11]

28. MSWR Extension • Case example: • Student is separated by MSWR for management of complications of a high risk pregnancy in the first trimester. If she delivers at term, the 180 day limit for MSWR will have passed. • Center staff should submit an MSWR extension request to the regional office with supporting documentation.

29. Filing a Complaint with the Civil Rights Center • If an individual believes that she has been or is being subjected to discrimination prohibited by WIA and/or Title IX, she or he may file a written complaint directly or through a representative with the Civil Rights Center. • In addition any person who believes that any specific class of individuals has been or is being subjected to discrimination prohibited by WIA and/or Title IX may file a written complaint. • Information on how to file a complaint may be found at http://www.dol.gov/oasam/programs/crc/filing-complaint.htm

30. Pregnancy-Related Discrimination Resources • U.S. Department of Labor, Civil Rights Center: http://www.dol.gov/oasam/programs/crc/ • U.S. Equal Employment Opportunity Commission: http://www.eeoc.gov/laws/types/pregnancy.cfm • U.S. Equal Employment Opportunity Commission Enforcement Guidance: Pregnancy Discrimination and Related Issues: http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm