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Discrimination Grievance/Complaint Procedure

Table of Contents:

I Purpose
II Scope
III Definitions
IV Reporting Discrimination or Making a Complaint; Initial Processing
V Early/Alternative Resolution
VI Notification and Interim Steps
VII Discrimination Investigations
VIII Formal Complaint/Investigation Resolution
IX Appeal or Grievance Rights
X  Obligation to Cooperate
XI Protection from Retaliation
XII Confidentiality
XIII Approval and Amendment
XIV Interpretation and Compliance; Title IX, Age Discrimination Act, and ADA and Rehabilitation Act Coordinator
XV Related Policies  

  I.             Purpose

 The purpose of this procedure is to help the university enforce its Policy on Discrimination, Harassment, and Retaliation, and other policies relating to discrimination and harassment.  It does so by:

  • Providing a mechanism for members of the campus community to file reports or complaints about discrimination, including employment discrimination and sexual harassment and other forms of discriminatory harassment. 
  • Creating a fair and effective investigation process.   
 II.            Scope

 This procedure applies to the College of William & Mary, including the Virginia Institute of Marine Science (the university).

 A.  Types of Discriminatory Conduct and Actions.  This is the procedure for investigating any type of discrimination prohibited by the Policy on Discrimination, Harassment, or Retaliation, including sexual or other discriminatory forms of harassment or retaliation, except as provided under B, below.  Discrimination may be an employee’s action or conduct or may be a policy or general practice of the university. 

For examples of the types of discrimination that may be handled under this procedure, see the Office of Compliance & Policy's discrimination resources website.  

This procedure does not replace other university or Commonwealth procedures such as grade appeals, the process for appealing a performance evaluation, or the Commonwealth Department of Employment Dispute Resolution grievance program. 

B.  Types of Employees Covered by this Procedure; Exclusions.  Complaints against all types of employees, other than instructional faculty, as well as reports implicating contractors and third parties, may be made under this procedure.  

 1.  Complaints against Faculty.  Investigations of alleged discrimination committed by an instructional faculty member are handled under the procedures set out in the Faculty Handbook.    

2.  Complaints against Students.  Investigations of alleged discrimination committed by a student are handled through procedures set out in the Studestudent Handbook.

 3.  Disability Accommodation Decisions.  There are separate procedures for qualified employees or students with disabilities to request reasonable accommodation and to appeal determinations made regarding such requests. 

 C.  Who Can Initiate an Investigation under this Procedure.  All university employees, including faculty members, and students can make reports under this procedure. 

 This procedure is not for applicants – either for admission or employment – but applicants are encouraged to contact the Office Diversity & Equal Opportunity with discrimination-related questions or concerns.  The Office will review the question or concern and determine whether and what type of action is warranted.

 The Chief Compliance Officer may initiate an investigation on behalf of the university. 

 D.     Other Options for Making Complaints or Resolving Concerns.  The university encourages early resolution of all types of grievances.  In keeping with this policy preference, individuals are encouraged to resolve their complaints with the individual most directly responsible, using any applicable procedures.  For example, an employee who believes his performance evaluation was discriminatory based on his or her race should first appeal the evaluation through the applicable personnel policy.  In some cases, this type of resolution is not feasible or appropriate, and it is never required; individuals always have the right to make a formal complaint. 

 The university encourages members of the campus community to resolve matters internally, such as by filing a report under this procedure, before pursuing remedies outside the university.  But employees and students have the right to directly contact the appropriate external enforcement agency.  Information regarding these agencies is available with the Office of Compliance and Policy.

III.            Definitions

Allegations means the specific claims of discriminatory conduct or other violation of discrimination policy, as described in Section IV(A).

Appropriate administrator typically will be the relevant Vice President or Dean or the Provost—that is, the senior administrator of the office, department, or unit in which the respondent is employed.

Discrimination is discrimination, including harassment, as defined in the university's Policy on Discrimination, Harassment, and Retaliation, available at http://www.wm.edu/offices/compliance/policies/discrimination_harassment_retaliation/index.php 

Report means a complaint, grievance, allegation, or assertion that a rule relating to discrimination has been violated; the rule can be federal law or regulation, state law, or university policy.

Reporting party means the individual making a report of discrimination.

Respondent means the person alleged to have violated university discrimination policy.  Not all reports will have a respondent, as discussed under Section V(A) below, and some reports will have more than one. 

 IV.            Reporting Discrimination or Making a Complaint; Initial Processing

The university encourages individuals to contact the Office of Compliance and Policy to discuss concerns or complaints, or to report discrimination.   The Office can discuss options for resolving concerns, ranging from counseling to alternative dispute resolution to a formal complaint and investigation. 

Reports should be made promptly, as investigation and effective remediation become increasingly difficult with the passage of time.  Reports relating to incidents that occurred more than 300 days prior typically will not be accepted.[1] 

A.  Formal Complaints/Investigations.  A formal complaint is one way of initiating a full, formal investigation.  A formal complaint must be written and must provide detailed allegations of the discrimination. 

The Compliance Officer may initiate an investigation where no complaint, formal or informal, has been made, such as where the Compliance Officer becomes aware of what appears to be discriminatory behavior.[2]

Such an investigation will be made in accordance with these procedures, with necessary modification (e.g., to reflect the fact that no reporting party exists).  

B.  Initial Processing. 

Upon a formal complaint being made, an investigator will meet as soon as possible with the reporting party to document the allegations, based on the written complaint and any other information gathered.  The allegations will be the basis for the investigation.  The investigator will also

  • refer the reporting party to the university’s discrimination policy and this procedure.
  • explore early resolution, if appropriate (see Section V).
  • discuss confidentiality (see Section X) and protections against retaliation.
  • provide the reporting party with information about campus resources that may be available, such as counseling or Ombuds services.
  • notify the reporting party of his or her right to file a criminal complaint, if it appears that a crime may have occurred (such as allegations of sexual assault).
C.  Referral or Dismissal of Reports

.  

Some reports may not actually relate to discrimination addressed by university policy or otherwise may be more appropriately handled by other offices.  These reports will be dismissed or referred as appropriate.

[3]

 

V.             Early/Alternative Resolution 

The university may attempt to resolve matters through mediation or other alternative resolution, when appropriate.  Mediation will not be used for reports of sexual violence or other extreme forms of discriminatory harassment.  In mediation, the investigator or an assigned individual typically meets with the reporting party and the respondent – separately and/or together – to seek an acceptable resolution.  Any informal resolution may be made only with the agreement of all affected parties.[4]   

If alternative resolution is unsuccessful, the matter will proceed to investigation.

VI.  Notification and Interim Steps

A.     Notifying Individuals of Investigation.  Upon receiving a formal complaint or when beginning a formal investigation, the investigator will determine those individuals with a need to know and provide them with necessary information.  These notifications typically include the Provost and University Counsel, who are given full information, and the parties’ supervisors, who will be given appropriate information. 

During the investigation, the investigator will promptly notify University Counsel of any information discovered that indicates a serious violation of policy or law may have occurred.  The investigator will immediately notify the Campus Assessment and Intervention Team if information discovered indicates that there may be a threat to the safety or security of any member of the university community. 

The above steps may be modified for matters handled through mediation or other alternative resolution as described in Section VII(A), below.  They will also be modified for situations when there is not a respondent, such as reports that a policy, rather than an individual’s conduct or actions, is discriminatory. 

B.     Interim Steps; Treatment of Report.  When appropriate and in consultation with University Counsel, prior to or during the investigation, the university may take interim steps to minimize the impact of the investigation process on the reporting party, protect the safety and well-being of members of the university community or the integrity of the investigation, such as placing the respondent on administrative leave, issuing a no-contact order or transferring the respondent or, with his or her consent, the reporting party, to another department.   Such actions do not represent a judgment on the merits of the allegations, and are not disciplinary actions.

A report of discrimination does not constitute proof of prohibited conduct.  As such, the allegations and any investigation will not be taken into account during promotion, merit or other evaluation or review, and may not be the basis of any disciplinary action, until a determination has been made.

VII.  Discrimination Investigations

Discrimination investigations are objective, fact-finding inquiries.  The purpose of the investigation is to gather facts relating to the allegations and so enable the Provost to decide whether university policy has been violated. The requisite fact finding will typically be conducted by the Compliance and Policy Office. 

   A.     Investigation Process. 
  • The investigation will include interviews with the respondent and other key witnesses.  The parties may identify witnesses who can provide information relevant to the allegations, but the investigator determines which witnesses will be interviewed.
  • The investigation may include written statements, interviews, document requests, and any other sources the investigator deems appropriate.  The reporting party and respondent can present evidence. 
  • The investigator will provide the respondent a copy of the allegations and a document request, if appropriate, and allow the respondent five (5) business days to respond, in writing.  
  • Investigations may be expanded to address additional allegations that surface during the investigation, at the investigator’s discretion.  The respondent will be given the opportunity to respond to the additional allegations. 
  • The investigator typically will complete the investigation within 45 calendar days of the date the report was filed, subject to extension (see C(1) below). 
  • Adversarial hearings, including confrontation, cross-examination by the parties, and active advocacy by attorneys or other outside representatives or third parties, are neither appropriate nor permitted during the investigation process.  Parties and witnesses are expected to speak for themselves during the investigation; attorneys are not permitted to participate in university interviews or meetings in the course of an investigation or resolution of a report.      

B.      Modifications to Process.  The university may modify the process when and as warranted, including the following: 

  1. Deadlines and Time Frames. Efforts will be made to expedite the procedure for urgent matters.   

Deadlines or time frames under this procedure may be extended based on the complexity of the matter, the availability of witnesses and involved parties, or other intervening events or circumstances.   The university is mindful of the importance of providing prompt and effective resolution of complaints, and will make such adjustments only as needed.  The investigator will notify all parties of any adjustments.

2. Roles The university officials specified in this procedure may recuse themselves, delegate their roles to other officers, or otherwise have their roles performed by other individuals, as necessary to ensure impartiality or to accommodate leave, professional or personal demands, or aspects of particular reports. 

3.  Reports Implicating Third Parties The university will investigate and respond to reports implicating volunteers, contractors, vendors or other third parties using an abbreviated or modified process, since some procedural steps are designed to respect rights afforded to members of the campus community that are not afforded to third parties. 

4.  External Charges or Investigations Investigations under this procedure will proceed independently of any criminal process or external agency (e.g., EEOC, OCR) investigation that may be ongoing, to the extent feasible.


VIII.  Formal Complaint/Investigation Resolution

At the conclusion of the investigation, the investigator(s) will prepare a written report.  The report typically[5] will

  • summarize the allegations investigated,
  • describe the scope of the investigation, i.e., the witness interviews and/or written statements made,
  • include a timeline of events alleged to have occurred, if useful, and
  • describe the relevant information discovered and factual findings made, including whether any allegations were substantiated, and the basis for such findings, which may include credibility as determined in the investigator’s judgment.  The report will not make findings as to whether there has been a violation of law or university policy.  The investigator will indicate any facts or allegations in dispute, and present his or her conclusions (if any) about such facts, including the basis for such conclusions (e.g., whether an allegation was corroborated by witnesses, or whether the investigator found one version of events more credible than another).  

The investigator will provide the investigation report, the written complaint, the response, and any other information deemed necessary to the Provost.  The Provost will make a determination within ten (10) working days, unless extended.  (See A-B below for a description of the possible determinations.)  

The standard of proof is preponderance of the evidence – more likely than not.  Thus, if the Provost determines that the evidence and findings do not show that it is more likely than not that an allegation or violation occurred, he or she will determine that the allegation or violation has not been proven. 

 A.     Determination of “No Violation” of University Discrimination Policy.  If the Provost determines that a violation of the university’s discrimination policy has not been shown, all parties and those with a need to know will be so informed and the matter closed, subject to appeal as discussed under Section IX below.   The Provost will provide the reporting party with an explanation of the key findings on which the determination is based. 

The investigation may reveal evidence or allegations of violations of other university policies or other misconduct by the respondent or other parties.  The investigator will present, typically in a separate report, such evidence or allegations to university management to pursue as deemed appropriate. 

B.  Determination of “Violation” of the University’s Discrimination Policy. 

 1.  Final Determination; Notifying Respondent.  If the Provost  determines that there was a violation of W&M discrimination policy, the Provost will inform the respondent of such determination along with the key findings on which the determination is based and a description of the possible disciplinary action (or range of actions) that may be taken.  The respondent will be given the opportunity (e.g., five (5) business days) to respond in writing.[6]  The Provost will consider any such response, may modify his or her determination if appropriate, and will, in consultation with the administrator, the Compliance Officer and University Counsel as appropriate, determine the appropriate disciplinary action and other remedial steps to be taken. (See 3 below for further discussion of remedial steps.)

2.  Notifying Reporting Party and Other Parties.  After the Provost’s final determination is made, the Compliance Officer will provide written notification to the reporting party informing him or her that the investigation is complete and that a violation was determined to have occurred, and an assurance that corrective action will be taken.  The Compliance Officer will also remind the reporting party to immediately report any conduct that he or she believes was/is retaliatory.

The Compliance Officer will inform individuals with a need to know that the matter has been concluded, and make appropriate reminders as to confidentiality and obligations not to retaliate. 

 3.  Remediating Discrimination.  Remedial steps are designed to stop the discrimination, correct its effects, and ensure that the discrimination does not recur. They may or may not be the action that the reporting party requests or prefers.  Steps may be specific to the parties involved or may be aimed at a broader group.  Typical steps range from counseling (which may be either remedial counseling, for the respondent, or supportive counseling, for the reporting party) or training or separation of the parties, to discipline of the respondent, including a written warning, suspension, demotion, transfer, or termination for cause.  The appropriate discipline will depend on the nature and severity of the conduct, the respondent’s overall record, the applicable policy on discipline (such as the state Department of Human Resources Policy No. 1.60), and other factors.   

The Compliance Officer will document the remedial steps taken.

 IX.            Appeal or Grievance Rights

 A.  Respondent.  There is no right of appeal or grievance afforded under these procedures or university discrimination policy.  Employees may, however, have a grievance right under separate state or university policy.  Classified and operational employees may contact the university's Department of Human Resources or the state Department of Human Resources for further information.  Professionals and professional faculty should look to the university Grievance Resolution Policy. 

 B.     Reporting Party.  A reporting party may appeal the Provost’s determination to the President.  An appeal is made by filing with the Office of Compliance and Policy, within ten (10) working days of the Provost’s determination, a brief document describing which determination is being appealed (for example, a reporting party  may accept a finding as to harassment and appeal only a finding as to retaliation) and basis of the appeal.  The possible bases for an appeal are:

 1.  The determination is not supported by the evidence.[7] 

 2. There was significant procedural error in the handling of the report, which materially prejudiced the reporting party.

 3.  Material new evidence coming to light, which was previously unavailable. 

The President will review the appeal, the investigation report, the written allegations, and the Provost’s determination, and take action within fifteen (15) working days, unless extended.  Action taken on the appeal can be (1) reversal of the Provost’s determination, which typically will result in the matter being returned to the Provost for determination of appropriate remedial steps, (2) upholding of the Provost’s determination, or (3) request for additional investigation or information regarding the investigation. 

The President’s action on an appeal is final and non-appealable, with the exception of an appeal that results in additional investigation and resulting action by the Provost, in which case the reporting party may appeal the new determination made.

  X.            Obligation to Cooperate

The university expects all employees to cooperate fully and in good faith with discrimination investigations. Any employee who refuses to cooperate in an investigation, or who acts in bad faith, is subject to discipline, up to and including termination.

XI.            Protection from Retaliation

Federal and state law and university policy prohibit any form of retaliation against a person who files in good faith a report of discrimination or in good faith participates in the reporting or investigation process, whether by filing a complaint, speaking with an investigator, or otherwise.  The university will take interim steps when warranted to avoid retaliation.  The university will also immediately investigate and remedy (if appropriate) any reported retaliatory actions taken by the respondent or other individuals. 

 XII.            Confidentiality

Investigations will be conducted confidentially to the greatest extent possible.  In all cases involving students, the protections afforded by the Family Educational Rights and Privacy Act will be observed.  All participants in the process, including witnesses, will be advised of their obligation to maintain confidentiality. Witnesses and reporting parties may not be promised full confidentiality, however; investigation of complaints typically requires some disclosure to witnesses, to gather pertinent facts, to the respondent, to allow him or her the ability to respond, and to certain university administrators.

If a reporting party does not want his or her identity disclosed to the respondent, the Assistant Director will explain the protections against retaliation and the limitations of processing a report that must be treated as anonymous.   If a reporting party insists on maintaining his or her anonymity, the university will evaluate this request against its responsibility to provide a safe and nondiscriminatory campus environment; the university will notify the reporting party if it cannot ensure confidentiality.  Even if anonymity is permitted, the university will take other steps to limit the effects of the alleged discrimination and prevent its recurrence, as needed, such as targeted education efforts.  

XIII.            Approval and Amendment

This procedure was approved by the Provost.  It was revised by the Provost in 2011.  Revisions (1) clarifying the purpose of discrimination investigations, (2) clarifying how complaints can be resolved early or informally, (3) providing more detail regarding appeals of decisions, (4) reducing the time period for completion of investigations, and (5) making certain other minor changes were approved by the Provost effective June, 2012.    

Revisions updating office names and titles, revising terminology, providing flexibility in notifications, and making several minor clarifications and language improvements were approved by the Provost effective February, 2013.  Revisions reflecting changes in duties of relevant university offices were approved by the Provost effective July 1, 2013.   Contact information was updated on October 23, 2013.  References to policies and officers were updated in August, 2014, primarily to reflect the university's new Policy on Discrimination, Harassment, and Retaliation.  

XIV.            Interpretation and Compliance; Title IX, Age Discrimination Act, and ADA and Rehabilitation Act Coordinator

Questions about this procedure or rights and responsibilities concerning discriminatory behavior may be brought to the university’s Compliance Officer.  The Compliance Officer has the primary responsibility for coordinating the university’s efforts to comply with Title IX, the Age Discrimination Act, and the ADA and the Rehabilitation Act.  These responsibilities include monitoring compliance with related policies and procedures.  

Title IX, Age Discrimination Act, and ADA and Rehabilitation Act Coordinator:

Kiersten Boyce, Chief Compliance Officer
108 James Blair Hall
College of William & Mary
P.O. Box 8795
Williamsburg, Virginia
757-221-2743
klboyc@wm.edu                                                                 

 XV.            Related Policies

Discrimination, Harassment, and Retaliation Policy
Statement of Rights and ResponsibilitiesCode of Ethics
Student Reasonable Accommodation Policy
Student ADA/Rehabilitation Act Grievance and Appeal Procedure
Employee Reasonable Accommodation Policy and Procedure
Commonwealth Discrimination Complaint Procedures



[1] For allegations of continuing harassment, reports will be accepted so long as the most recent allegedly hostile or offensive act occurred within 300 days.  For other types of allegations, the university will consider any cause for the delay in reporting, the severity of the alleged violation, and other factors in determining whether to act on the report. 

[2] Policy and other restrictions, such as restrictions in the Faculty Handbook, may limit the university’s ability to act in this manner. 

[3] A report will be dismissed if it alleges conduct that, if substantiated, would not constitute a violation of university discrimination policy.  

[4] Resolutions may require involvement or approval of other individuals not party to the investigation, such as supervisors.

[5] Certain investigations may not require all these elements to be effectively documented.  Additionally, compressed time frames may not allow for full reporting.  Complaints regarding disability determination decisions typically will not be documented in this manner. 

[6] In the case of a violation resulting in termination, this notification and response satisfies the due process requirements established by the Commonwealth for operational and classified employees (DHRM Policy No. 1.60) and by the College Policy on Appointments and Termination for Professionals and Professional Faculty; no additional notice and response period will be provided. 

[7]  For this type of appeal, the President will decide whether the Provost’s determination was clearly erroneous; he will not replace the Provost’s judgment with his own.