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Proposed Discrimination, Harassment, Retaliation and Consensual Relationships Policy

The comment period for this proposed policy has ended.  With questions and concerns, please contact the Office of Compliance & Policy.  Please also read the brief explanation of this policy provided on the proposed policies homepage.

Title: Proposed
Discrimination, Harassment, Retaliation and Consensual Relationships Policy

Effective Date: ---

Responsible Office: Compliance & Policy


Policy Contents:

I.  Scope
II.  Non-Discrimination
III.  Retaliation
IV.  Resources for People Experiencing, Witnessing or Affected by Discrimination or Retaliation
V.  Reporting Requirements
VI.  Consensual Amorous Relationships
VII.  Enforcement
VIII. Approval and Amendment
IX. 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] 

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. 

Vendors, contractors, and third parties acting as agents for the university may not discriminate against or harass members of the campus community; this policy does not extend to the internal policies or practices of such entities. 

This policy applies to prohibited conduct that takes place on or off campus.  This policy is not intended, and may not be applied, to abridge free speech or other civil rights of any individual or group. 

II.  Non-Discrimination 

Unless otherwise constrained by law, William & Mary is committed to providing an environment for its students and employees that is free from discrimination based on any personal factor unrelated to qualifications or performance such as, 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, disability, marital status, pregnancy status, parental status, height, weight, military service, veteran status, caretaker status, or family medical or genetic information.

What is discrimination?   Discrimination is conduct[2] based on any personal factor unrelated to qualifications or performance 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,[3] or
  • constitutes harassment, as defined below.

Discrimination also includes failure to provide reasonable accommodations for a person’s disability or religion as required by state and federal law.[4] 

Harassment is a form of discriminatory conduct.  Harassment violates this policy when it is based on any unrelated personal factor and 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 serious to create an intimidating, hostile, or offensive work or educational environment.[5]  Conduct must be severe or pervasive in order to create a hostile environment; conduct may be inappropriate, unprofessional, offensive, or hurtful, yet not be harassment under this policy.[6] 

Sexual harassment is harassment based on sex. Sexual harassment can take the form of hostile environment harassment[7] or “quid pro quo” – “this for that” – harassment.  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, certain consensual relationships are prohibited under Section VI of this policy.  Sexual harassment may, however, occur between individuals of equal status or rank or be instigated by an individual in a subordinate position. 

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

Sexual violence is a form of sexual harassment.  Sexual violence is physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent.  The forms of sexual violence are defined and explained in the Sexual Misconduct Policy and Procedure, which is part of the Student Handbook. 

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. [8],[9]

III.  Retaliation

Retaliation is prohibited at William & Mary.  The university will take action to protect individuals who report discrimination from retaliation and will take immediate action to address any retaliatory behavior that occurs.       

Retaliation prohibited by this policy is adverse action taken against a person for 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.[10]  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.  

IV.  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.  Information about resources for students experiencing sexual violence is provided by Student Affairs, and information about other discrimination-related resources is provided by Compliance & Policy.  The university also has several ways to report or file a complaint of discrimination or retaliation.  Information about these reporting options is provided in Appendices A and B. 

V.  Reporting Requirements 

The university cannot fulfill its ethical commitment to create a non-discriminatory environment or its legal obligations to address discrimination that occurs unless allegations and complaints are brought to the attention of a designated university officer.  For this reason, William & Mary encourages, and in certain situations requires, members of the university community to inform the proper authorities of discrimination and retaliation.  

If you have been discriminated and/or retaliated against, we encourage you to speak to someone, but you are 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. 

When discrimination or retaliation is reported, university officials consider the report carefully to determine what action is warranted and the applicable procedure.     

When are employees required or encouraged to make a report? 

There are three situations in which reporting is required. 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.  Information about where to make a report is provided in Appendix A. 

  1. Employees must inform a Title IX Coordinator of sex-based discrimination and sexual harassment affecting students.  (Except for those employees who are confidential resources to survivors of sexual violence, described in the next paragraph.)  Employees who become aware of complaints or reports of discrimination based on sex or gender or sexual harassment, including sexual violence, affecting students must promptly inform a Title IX Coordinator.  This means that if you are an employee and a student tells you that he or she has been sexually harassed or discriminated against because of gender, for example, or if you are given or told about a sexual harassment complaint or report involving students, you are obligated to inform a Title IX Coordinator.  Employees also must inform a Title IX Coordinator of any incident or situation that a reasonable person would understand to be sexual harassment or sex-based discrimination affecting students, regardless of how they become aware of it.[11]  This means, for example, that if you are an employee and you see someone sexually harassing a student, you are obligated to inform a Title IX Coordinator.  If you know that the matter has already been brought to the attention of a Title IX Coordinator, you do not need to report it.

    Because 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 employees with contact information is provided in Appendix B.  

  2. Faculty, supervisors, and managers must report all discrimination and retaliation.  Faculty and employees with supervisory or managerial responsibilities, including all executive employees[12] who are told of, become aware of, or witness discrimination or retaliation are required to inform the appropriate university officer of  the situation.[13]  (Unless they are one of the confidential resources described in Appendix B.)  This means, for example, that if you are a supervisor and someone complains of or reports to you discrimination, or if you witness or become aware of an incident or situation that a reasonable person would understand to be retaliation, you are obligated to inform the appropriate university office.  The chart in Appendix A shows which office handles which type of reports.

  3. Campus Security Authorities Must Report Criminal Conduct.  Certain conduct prohibited by this policy is also reportable under the Crime Reporting Policy, specifically:
    • forcible sex offenses
    • statutory rape
    • hate crimes.

The Crime Reporting Policy, which defines these crimes, applies to those employees designated as Campus Security Authorities and requires reporting to the William & Mary Police.[14] 

Whom should I inform?  How will reports be addressed?

Reports of discrimination or retaliation should be made promptly to the appropriate university office or officer.  A chart showing resources and reporting options and contact information is attached (Appendix A). 

Reports need not take a particular form.  Reports may be made, for example, in person, by phone, via email, or in writing. 

It is a violation of this policy to knowingly make a false complaint or report of discrimination.[15]

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. 

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.  An initial report may be made without revealing the identity of the individuals involved.  This means, for example, that if you are an employee and a student tells you that she has been sexually assaulted but does not want anyone to know, you would have to tell a Title IX Coordinator but when you do so, you could tell the Coordinator what the student told you without using names.  The university will carefully consider the report to decide whether additional details are necessary, based on the nature of the reported situation. 

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

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

VI.  Consensual Amorous Relationships 

Consensual amorous relationships between individuals in positions of unequal power, such as a supervisor and employee, pose conflicts of interest and diminish trust.  Conflicts of interest are prohibited by the university’s Code of Ethics and can give rise to concerns regarding discrimination, harassment, and retaliation.  This policy prohibits certain consensual amorous relationships and establishes protocols for managing conflicts of interest and avoiding abuse of power.

Consensual Amorous Relationships with Colleagues.  Employees, including faculty, may not participate in consensual amorous relationships with those whom they supervise or evaluate.  Similarly, employees should avoid situations requiring them to supervise or evaluate those with whom they have had a consensual amorous relationship. 

Whenever any of the above situations arise or are foreseen, the employee in the supervisory or evaluating position must report the situation promptly to a Title IX Coordinator, who will work with the relevant administrator to ensure unbiased supervision or evaluation.

Consensual Amorous Relationships with Students

  1. Consensual amorous relationships between students who are minors (under age 18) and employees are prohibited.  This prohibition does not apply to student employees, such as Resident Assistants or Teaching Assistants; see paragraph D below for the prohibition applicable to certain student employees.

  2. Consensual amorous relationships between students and executive employees are prohibited.[16]

  3. Consensual amorous relationships between undergraduate students and faculty are prohibited. 

  4. Consensual amorous relationships between students – graduate or undergraduate - and employees (including faculty and student employees) in a position of authority[17] are prohibited.  Similarly, an employee should not enter into a position of authority with respect to a student with whom the employee has or had a consensual amorous relationship. 

Reporting.  Members of the university community who believe that a prohibited consensual amorous relationship is occurring are encouraged to make a report or complaint to the immediate supervisor of the employee or a Title IX Coordinator. 

Exceptions.  Exceptions to this policy may be made by a Title IX Coordinator in limited circumstances, such as for pre-existing marriages or to permit an executive employee’s spouse to take a course.  These exceptions will be made on a case-by-case basis, with development of a management plan for conflicts of interest.  In all cases it is the responsibility of the employee to request an exception. 

VII.  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 policy or procedure: the Faculty Handbook, the Standards of Conduct (for classified and operational employees), the Employment Policy for Executives, the Policy on Appointments and Termination of Professionals and Professional Faculty, and the Student Code of Conduct. 

The response to violations by a contractor or other third party will depend on the nature of the individual’s relationship to the university. 

VIII.  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.   

IX.  Related Documents, Policies, and Procedures

Appendix A: Discrimination Poster (Chart of W&M Resources and Reporting Options) (pdf)
Appendix B: Information on Campus Resources and Reporting Procedures Including Confidential Resources

Discrimination Grievance/Complaint Procedure (for complaints against non-faculty employees and third parties)

State Discrimination Complaint Process (available to classified employees and applicants for classified positions)

Sexual Misconduct Policy and Procedure (for students)

Sexual Violence Related Resources

Discrimination Resources - Campus and External Resources for Discrimination-Related Services and Support

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


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

[3] 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. 

[4] For more information regarding reasonable accommodations based on religion or disability, see Employee Reasonable Accommodation Policy and Procedure; Student Accommodation Policy and Procedure; Guidelines for Accommodation of Religious Holidays; and Student ADA/Rehabilitation Act Grievance and Appeal Procedure.  

[5] 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, such as co-workers. 

[6] Such conduct may be a violation of other universities policies and/or may be appropriately addressed by a supervisor or other university officer or through a grievance process. 

[7] A hostile work environment may 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 may be 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.   

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

[9] 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 a similar situation.

[10] 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 activity reasonably believes they are opposing discrimination, he or she is protected from retaliation. 

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

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

[13] If you know that the matter has already been brought to the attention of an appropriate university officer, you do not need to report it. 

[14] A Campus Security Authority is an employee designated under the Crime Reporting Policy as someone with  significant responsibility for student and campus activity.  Campus Security Authorities are required to report certain crimes to the William & Mary Police. 

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

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

[17] A position of authority, as used with respect to a relationship between an employee (including a student employee) and a student, is any situation in which the employee (i) is responsible for or participates in the advising, evaluation, supervision, coaching, or teaching of the student; (ii) is responsible for or participates in other academic or work-related assessments, references, or significant decisions regarding the student; or (iii) has influence over university-related decisions regarding the student, such as decisions regarding the student’s activities, employment, housing, financial aid, or participation in any university activities or opportunities.