Discrimination, Harassment, and Retaliation Policy

Title: Discrimination, Harassment, and Retaliation Policy
Effective Date: August 22, 2014
Revision Date: May 1, 2016
Responsible Office: Compliance & Equity

I.  Scope
II.  Non-Discrimination

III.  Reporting Discrimination, Harassment, or Retaliation
IV.  Enforcement
V.  Approval and Amendment
VI. Related Documents, Policies, and Procedures

I.  Scope

This policy applies to the College of William & Mary, including the Virginia Institute of Marine Science (the university).  It applies to all members of the university community, including faculty and other employees and students.[1]  It also applies to contractors, vendors, and other third parties.[2] 

This policy applies to discrimination, harassment, and retaliation by or against members of the university community when the conduct:

  • occurs on campus or property owned or controlled by the university (university property)
  • occurs in the context of a university employment or educational program or activity
  • uses university resources, such as workplace telephones or e-mail, or
  • has continuing adverse effects on or creates a hostile environment for members of the university community while on university property or during a university employment or educational program or activity.[3]

Officially recognized organizations, such as student organizations, are subject to this policy, provided that, to the extent permitted by law, social organizations such as fraternities and sororities may restrict membership to members of the same sex, and organizations whose primary purpose is religious or political may restrict their membership to those members of the university community who have similar beliefs or political affiliations.[4] 

This policy is not intended, and may not be applied, to abridge free speech or other civil rights of any individual or group.  Speech or any other expressive conduct can, however, be discriminatory and violate this policy, for example by creating a hostile environment as defined in Section II of this policy.   This policy is not meant to prohibit academic freedom, including classroom discussion of controversial matter and research activities.  

II.  Non-Discrimination 

Unless otherwise constrained by law, William & Mary is committed to providing an environment for its students, employees and others present within the community that is free from discrimination based on any personal factor unrelated to qualifications or performance.  Such “irrelevant personal factors” include (without limitation) race or color, citizenship, national origin or ethnicity, ancestry, religion or creed, political affiliation or belief, age, sex or sexual orientation, gender identity or expression, physical or mental disability, marital status, pregnancy status, parental status, height, weight, military service, veteran status, caretaker status, or family medical or genetic information.

Discrimination is conduct[5] based on any irrelevant personal factor that

  • adversely affects a term or condition of an individual’s employment, education, or participation in a university activity, or
  • is used as a factor in a decision affecting an individual’s employment, education, or participation in a university activity,[6] or
  • constitutes harassment that creates a hostile environment or quid pro quo sexual harassment, each as explained  below.

Discrimination also includes failure to provide reasonable accommodations for a person’s disability[7] or religion[8] as required by law, or any other violation of a disabled person’s rights under applicable anti-discrimination laws.[9]  W&M makes modifications and adjustments to its programs and activities for qualified students with disabilities as required by law, under the Student Accommodation Policy and Procedure.  W&M also makes modifications, changes, or adjustments to jobs, work conditions and work environment for qualified employees with disabilities, or to the job application process for applicants, as required by law, under the Employee Reasonable Accommodation Policy and Procedure.   

Harassment is unwelcome conduct based on an irrelevant personal factor.  Harassment violates this policy when it creates a hostile environment.  A hostile environment exists when harassment has the purpose or effect of unreasonably interfering with a person’s work or educational performance or participation in a university program or activity, or is sufficiently severe or pervasive to create an intimidating, hostile, or offensive work or educational environment.[10] 

Section III of this Policy discusses the university’s response to harassment that has not (yet) created a hostile environment. 

Each situation must be considered in context to determine if harassment has occurred.  Conduct alleged to constitute harassment is evaluated from the perspective of a reasonable person.[11], [12]

Sexual harassment is harassment based on sex. Sexual harassment can take the form of hostile environment harassment, discussed above, or “quid pro quo” harassment.  A hostile environment can arise from sexual harassment even if the conduct is not sexual in nature, so long as the conduct is based on sex.  For example, a female supervisor who regularly and severely criticizes her male employees because she prefers working with women is harassing her male employees because of their sex, even if the supervisor has no sexual or romantic interest in any of the employees and is not engaging in sexual conduct.   

Quid pro quo is a Latin phrase meaning “this for that.”  Quid pro quo sexual harassment is unwelcome conduct of a sexual nature, including sexual violence, when

  • submission to such conduct is made or threatened to be made a term or condition of employment, education, or participation in a university activity; or
  • submission to or rejection of such conduct is used or threatened to be used as a factor in a decision affecting employment, education, or participation in a university activity.

Quid pro quo sexual harassment most often occurs when one person has power or authority over another.  In part because of this, the Consensual Amorous Relationship Policy prohibits certain sexual or romantic relationships between people in unequal positions.  But sexual harassment (of any type) can occur between individuals of equal status or rank. Similarly, an employee can engage in prohibited sexual harassment by sexually harassing a supervisor.

Sexual harassment can occur between persons of the same sex or members of different sexes. 

Sexual violence and sexual misconduct are physical acts made against someone’s will or without their consent.   Sexual violence and sexual misconduct take different forms, and often constitute sexual harassment.  The forms of sexual misconduct are defined and explained in the Policy on Sexual Misconduct, Relationship Violence, and Stalking, which is attached as Appendix B to this Policy.

Retaliation is prohibited at William & Mary.  The university takes action to protect individuals from retaliation and to address any retaliatory behavior that occurs.  Retaliation prohibited by this policy is adverse action taken against a person for engaging in protected activity.

Examples of adverse action include: firing, denial of a promotion, lowering a grade, unjustified negative performance evaluations and reports, increased supervision or scrutiny, sudden enforcement of previously unenforced policies, exclusion from activities or privileges open to others, or any other action that would deter a reasonable person in the same circumstances from filing a complaint or engaging in protected activity. 

A person engages in a protected activity when he or she opposes, reports or complains about discrimination, such as by reporting harassment.[13]  Adverse action against an employee or student based on their relationship or association with another person who engages in protected activity is also prohibited retaliation.  

Resources for People Experiencing, Witnessing or Affected by Discrimination or Retaliation

The university has resources available for students and employees who experience discrimination or who have questions or concerns about discrimination.  Resources range from counseling to protections against retaliation and other interim measures that may be taken.  The university also has several ways to report or file a complaint of discrimination or retaliation.  Information about these resources and reporting options is provided in Appendix A

III. Reporting Discrimination, Harassment or Retaliation

This section is organized as follows:

Introduction; important general information about reporting. 

The university can fulfill its ethical commitment to create a non-discriminatory environment and its legal obligations to address discrimination that occurs only if allegations and complaints are brought to the attention of a designated university officer.  In addition, there are state legal requirements to report sexual violence – these requirements are described in this Section III and do not apply to victims of violence.[14]  To meet these ethical and legal commitments, William & Mary encourages, and in certain situations requires, members of the university community to inform the proper authorities of discrimination and retaliation.  

If a member of the university community has been discriminated and/or retaliated against, we encourage him or her to speak to someone, but he or she is not required to report or make a complaint.  In no case is a person who has been discriminated or retaliated against or harassed required to report. 

In order to encourage reporting, the university does not discipline community members who report sexual misconduct and any material witnesses for behavior that would otherwise be considered a violation of university policy (such as consuming alcohol underage or consuming illegal drugs).[15]

William & Mary will also work to protect a reporting party, and the larger campus community, by taking the necessary interim measures to prevent further misconduct or retaliation.  Examples of possible interim measures include delay of a negative performance evaluation, change in campus housing, issuance of a “no contact” order, and interim suspension of the alleged harasser.  The university will investigate and implement reasonable interim measures as quickly as possible.

A report may always be made directly to the Title IX Coordinator:

Kiersten Boyce, J.D., CCEP
Chief Compliance Officer
108 James Blair Hall
College of William & Mary
Wiliamsburg, VA 23185
757-221-3146
[[reportconcern]]

Other reporting options are detailed in Appendix A.

When are employees required or encouraged to make a report? 

There are three mandatory reporting situations – situations in which an employee who has information about discrimination or harassment must share that information with the Title IX Coordinator or other appropriate administrator.  These three situations are explained in detail below.  In all other cases, individuals are encouraged, but not required, to report discrimination and retaliation.  And in no case is a person who has experienced discrimination or retaliation required to report. 

These reporting obligations do not apply to contractors and others not directly employed by William & Mary.  Confidential resources (listed in Appendix A) are exempt from these reporting obligations.  Lawyers or others who obtain information through any communication considered privileged by state or federal law do not need to report that information.    

A. Faculty, supervisors, and managers must report all discrimination and retaliation.  Faculty and employees with supervisory or managerial responsibilities (including all executive employees[16]) who are told of, become aware of, or witness discrimination or retaliation are required to inform the appropriate university officer of  the situation.  The only employees who are exempted from this reporting obligation are the Student Health Center and Counseling Center staff and other confidential resources listed in Appendix A. Also, lawyers or others who obtain information through any communication considered privileged by state or federal law do not need to report that information.    

This means, for example, that if someone complains of or reports discrimination to a supervisor, or if a supervisor witnesses or becomes aware of an incident or situation that a reasonable person would understand to be retaliation, the supervisor is obligated to inform the appropriate university office or officer.  See Appendix A for reporting options.  The faculty member, supervisor or manager should not investigate the matter him- or herself.  

If the supervisor knows that the matter has already been brought to the attention of the appropriate university office or officer, the supervisor does not need to report it.

B. With very few exceptions, faculty and staff must inform the Title IX Coordinator promptly of sex-based discrimination and sexual harassment affecting students.  Employees who become aware of complaints or reports of sex-based discrimination, including sexual harassment or sexual violence, affecting students must promptly inform the Title IX Coordinator.  Sexual violence consists of physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent.[17] This means that if a student tells an employee that he or she has been sexually harassed or discriminated against because of gender, for example, or if an employee is given or told about a sexual harassment complaint or report involving students, the employee is obligated to inform the Title IX Coordinator, regardless of the employee’s assessment of the complaint’s or report’s merit.  The employee should not attempt to investigate the matter him- or herself. 

Employees also must inform the Title IX Coordinator of any incident or situation that a reasonable person would understand to be sex-based discrimination or harassment affecting students, even if a student has not made a complaint or report about the incident.[18]  This means, for example, that if an employee sees someone sexually harassing a student, the employee is obligated to inform the Title IX Coordinator. 

In any case, if the employee knows that the matter has already been brought to the attention of the Title IX Coordinator, the employee does not need to report it.

The only employees exempt from this obligation are (1) confidential resources, discussed below, and (2) student employees other than those employed by Student Affairs.  Student employees of the Student Affairs division, such as Resident Assistants, are included in this reporting obligation, for matters that they become aware of in the course of their W&M employment.[19] Also, lawyers or others who obtain information through any communication considered privileged by state or federal law do not need to report that information.    

Sometimes a student who has experienced harassment or sexual violence does not want the matter reported.  There are some university employees who can provide confidential support to students.  These employees do not need to report if the student does not want them to.  A list of these “confidential resources,” with contact information, is provided in Appendix A.  But all other employees must report, even if the student does not want them to make a report. The Title IX Coordinator will carefully consider the wishes of the student who experienced the harassment or violence; Section IV(F) of the Policy on Sexual Harassment and Misconduct, Dating and Domestic Violence and Stalking (attached as Appendix B) details how requests for confidentiality, anonymity, and no action are handled. 

C. With very few exceptions, all faculty and staff must report promptly to the Title IX Coordinator information that an act of sexual violence may have occurred on campus or on William & Mary’s Clery Act geography.  Virginia law requires that any university employee, other than a confidential resource (see Appendix A), “who in the course of his employment obtains information that an act of sexual violence may have . . . occurred on” the university’s Clery Act geography (as defined below) must report such information to the Title IX Coordinator as soon as practicable, after addressing the immediate needs of the victim.[20]  The only employees exempt from this obligation are the confidential resources listed in Appendix A.

William & Mary’s Clery Act geography is its:

  • campus,
  • public property bordering campus, and
  • non-campus areas leased or otherwise controlled by the university.  This includes (for example) the Gloucester campus of VIMS, the William & Mary in Washington physical areas, the William & Mary Peninsula Center, and the university offices located in New Town. 

Further information is provided in the Crime Reporting Policy and the Clery Act Guidance for Campus Security Authorities.   Under the Crime Reporting Policy, CSAs must report Clery Act crimes other than sexual violence to the William & Mary Police Department.   

Who should be informed – to whom should reports be made? 

Reports of discrimination or retaliation should be made promptly to the Title IX Coordinator or other appropriate university office or officer; see Appendix A for information about other reporting options.  

What information must be included in a report?  Is there a particular form that a report must have? 

  • Reports by someone who experienced discrimination or harassment.  A report by someone who experienced the discrimination or harassment should include as much information as the person is comfortable sharing.  If a person makes a report without names or other identifying information, for example, the university probably will not be able to take any action on the report.  Reports need not take a particular form.  Reports may be made, for example, in person, by phone, via email, or in writing.  See Appendix A for full information about reporting options.
  • Third–party reports. A report by an employee who is required to make a report must include all available information, including names and other identifying information. 

How will reports be addressed?

After a report is made, it will be promptly addressed, including a preliminary review of the matter and, if appropriate, full investigation and corrective action under the applicable university procedure.  Section IV of this policy provides more information about enforcement and applicable procedures.    

It is a violation of this policy to knowingly make a false complaint or report of discrimination.[21] 

What if the person who appears or claims to have been discriminated or retaliated against does not want it to be reported? 

Employees and supervisors who are required to report under this policy must do so even if the person who appears or claims to have been discriminated or retaliated against does not want a report to be made.  Requests not to take action or requests for anonymity will be carefully considered pursuant to the relevant investigation procedure; in most cases, the person’s wishes can be respected.  

Certain employees and offices provide confidential support or other services to people experiencing discrimination.  Appendix A provides contact information for these employees and offices.

People experiencing discrimination are encouraged to come forward but are not required to make a report.

What about reporting harassing conduct that does not rise to the level of a policy violation – unwelcome conduct based on an irrelevant personal factor that is not (yet) severe or pervasive enough to create a hostile environment? 

The primary objective of this Policy (and of the laws it helps W&M enforce) is to prevent harm.  This is the main reason why we encourage people to report unwelcome conduct (harassment), even if the conduct is not severe or pervasive enough to have created a hostile environment.  Reporting this conduct may allow the university to stop harassing conduct before it creates a hostile environment, such as by counseling a student or employee.  In some cases, harassing conduct is a violation of another university policy, in which case it may be addressed through applicable policy and procedure (see Section IV, Enforcement). 

A concerned or affected party may discuss this type of conduct with the person responsible for it, if he or she feels comfortable doing so.  A concerned or affected party may also discuss the conduct with the responsible person’s supervisor, dean, or other manager, or make a report via any of applicable methods outlined in Appendix A

If a supervisor or manager becomes aware of harassing conduct, he or she should consult with the Office of Compliance & Equity rather than concluding that conduct does or does not create a hostile environment or investigating the report.

IV.  Enforcement

Any member of the campus community who violates this policy is subject to discipline, up to and including termination of employment or permanent dismissal.   Disciplinary action against an employee or student will be taken in accordance with the applicable state or university procedure and policy:

  • For students, the Student Sexual Harassment and Misconduct Grievance/Complaint Procedure and the Student Handbook. 
  • For faculty and staff, the Employee Discrimination Grievance/Complaint Procedure.[22] 

For third parties, the response will depend on the nature of the individual’s relationship to the university and the nature of the conduct.  The Employee Discrimination Grievance/Complaint Procedure may be used.   

V.  Approval and Amendment

This policy was approved by the President.  Minor, technical revisions, such as to update contact information, may be made by the Chief Compliance Officer.  Revisions or amendments to the definitions in Section II require the approval of the Faculty Assembly, provided that the Board of Visitors retains the ultimate authority over institutional policies.   

This policy was amended by the President effective July 1, 2015, to (1) comply with Virginia Code 23.1-806 by revising the reporting provisions to require reporting of sexual violence occurring on university’s Clery Act geography and by eliminating the provision permitting initial reporting of incidents without identifying details,[23] (2) make changes conforming to amendments to other policies[24] and (3) make grammatical corrections and formatting improvements. 

This policy was amended by the President effective May 1, 2016, to (1) clarify the scope of the policy, (2) clarify the relationship of the policy to speech, particularly provisions relating to harassing conduct that has not risen to the level of a policy violation, (3) update office names, and (4) update appendices and cross-references including to reflect amendments to other policies, and (5) add the Faculty Assembly approval right. 

VI.  Related Documents, Policies, and Procedures

Appendices

Appendix A: Information on Campus Resources and Reporting Procedures Including Confidential Resources
Appendix B: Sexual Misconduct, Relationship Violence, and Stalking Policy

University Grievance/Complaint Procedures

Employee Discrimination Grievance/Complaint Procedure (for complaints against faculty and other employees and third parties)
Student Sexual Harassment and Misconduct Grievance/Complaint Procedure (for complaints against students)

Resources

Appendix A: Information on Campus Resources and Reporting Procedures Including Confidential Resources
Sexual Violence-Related Resources 
Discrimination Resources – Campus and External Resources for Discrimination-Related Services and Support

Disability and Religious Accommodation Procedures

Employee Reasonable Accommodation Policy and Procedure
Student Accommodation Policy and Procedure
Guidelines for Accommodation of Religious Holidays
Student ADA/Rehabilitation Act Grievance and Appeal Procedure

Other

Crime Reporting Policy

* This Policy implements and is consistent with William & Mary's Statement of Rights and Responsibilities and its Code of Ethics, both of which include provisions regarding discrimination and harassment.  It subsumes and replaces the 2013 Sexual Harassment Policy.



[1] Except as noted, in this policy “faculty” has the meaning provided in the Faculty Handbook, and does not include professional faculty, and “student” has the meaning provided in the Student Code of Conduct, and includes any person taking courses at the university whether full-time, part-time, degree-seeking or not, undergraduate or graduate.

[2] Examples of other third parties include

  • University agents or volunteers 
  • Visiting scholars or scientists or others formally affiliated with William & Mary
  • Visitors and guests, while on university property or engaged in or attending university activities, events, or programs.

See Section IV for enforcement of the policy against third parties.

[3] Further detail regarding the enforcement of this policy may be found applicable procedures; see Section IV of this Policy. 

[4] This provision reflects the rights granted by Section II of the Statement of Rights and Responsibilities and complies with Section 23.1-400 of the Code of Virginia.

[5] For the purposes of this policy, conduct can be verbal, physical, or written, and if written, may be communicated in various ways, such as email or text messaging.

[6] In limited situations, state or federal law requires or permits William & Mary to take “affirmative action” for people with disabilities, veterans, racial minorities, and women.  These actions are exempted from this policy.

[7] A disability can arise from either a mental or physical impairment.  For a full definition, see the Employee Reasonable Accommodation Policy and Procedure

[8] For more information regarding reasonable accommodations based on religion, see Guidelines for Religious Accommodations.  

[9] Specifically, the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. 

[10] Typically conduct of this type creates a hostile or offensive environment for the individual(s) or group at whom the conduct is directed, but severely offensive or hostile behavior can create a hostile environment for others who are not the direct target, but who observe or are otherwise exposed to the conduct, such as co-workers. 

[11] The definitions of discrimination and harassment and the standards for determining whether conduct constitutes prohibited harassment are derived from federal regulations and regulatory guidance.

[12] Each situation is examined to determine whether the conduct was unwelcome to the person at whom it was directed and whether the conduct would have been considered hostile or offensive by a reasonable person in the alleged victim’s position, considering all the circumstances.

[13] For determining whether someone has engaged in protected activity, it does not matter whether the conduct or situation they are complaining about, reporting, or otherwise opposing actually is discrimination – so long as the person engaging in the protected activity reasonably believes he or she is opposing discrimination, he or she is protected from retaliation. 

[14] Virginia Code Section 23.1-806.

[15] Except to the extent required by law.

[16] Executive employees are senior-level managers, designated by the President.

[17] Virginia Code Section 23.1-806.

[18] The Code of Ethics adopted by the Board of Visitors in 2009 requires all employees to report illegal or unethical action. 

[19] Students employed as assistants to completely confidential resources are not mandatory reporters. 

[20] Virginia Code Section 23.1-806(B).

[21] A false report is one that is made by a person who knows that the report is untrue. 

[23] The first version of this policy permitted initial reporting of incidents without including identifying information regarding parties involved.  This initial reporting option was removed to reduce complexity and comply with law and regulatory guidance, including Virginia Code 23.1-806(B). 

[24] The Crime Reporting Policy was amended effective December 17, 2014, to expand the list of Clery Act crimes to comply with the Violence Against Women Reauthorization Act; the Student Sexual Harassment and Misconduct Policy and Procedure were revised effective February 2015.