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Sexual Harassment and Sexual Assault - Guidance for Faculty and Staff

This is guidance about sexual harassment and sexual assault, under the Discrimination, Harassment and Retaliation Policy and the Sexual Misconduct Policy, in the form of frequently asked questions (FAQs).   Other campus resources for people experiencing or concerned about sexual harassment or assault are available; the Resources Chart quickly shows available resources and more detailed information about resources is available online (Appendix B to the Discrimination, Harassment and Retaliation Policy). 


These FAQs are organized as follows:

All examples and scenarios used in these FAQs are fictional.  

This guidance is aimed at employees, including faculty.  Resources for students, particularly for survivors of sexual assault, are provided by the Dean of Students Office.

MOST IMPORTANT THINGS TO KNOW ABOUT SEXUAL HARASSMENT AND ASSAULT AND YOUR OBLIGATIONS

What are the key things I need to know?  There are three main things to know.  These are covered in detail in these FAQs:  

  1. Sexual harassment is prohibited at W&M.  
  2. Non-consensual sexual intercourse, sexual assault and other forms of sexual violence are types of sexual harassment.
  3. You -- all employees including faculty -- need to report sexual harassment (including assault) of a student if you become aware of it.  Faculty, supervisors, and managers are considered "responsible employees," in the eyes of the law, and must report all sexual harassment. 

What is a "responsible employee"?  That is a term used by courts and regulators to indicate, basically, an employee whom a student or other employee might reasonably believe has the authority to respond to a complaint or report of sexual harassment, or an employee whom the school has requested to report sexual harassment complaints that are made to him or her.  At William & Mary, all faculty and staff are considered "responsible employees" and are required to report.   

What do I do if someone starts to tell me they have been raped, sexually assaulted or sexually harassed in some other way?  Unless you are a counselor in Student Affairs or a pastoral counselor, or a student employee or volunteer for such a counselor, you should let the person know:

  • you are going to have to report what they are telling you, if it sounds like sexual harassment (or if they are describing it that way) experienced by a particular student, to the Title IX Coordinator or the Dean of Students.  (Why do we do this?  Because W&M wants to help and support people who have experienced harassment or assault.   We have resources for that. The Title IX Coordinator and Dean of Students are empowered to engage these resources.  We also have staff who are trained and experienced in how to work with students who have survived trauma, and who are expert in identifying sexual harassment.)
  • if they want to keep this matter confidential, there are completely confidential places that they can go, places that will help them understand options and connect them with resources.
  • if the student recently experienced a physical assault, that it is important to preserve physical evidence. 

The pamphlets provided by the Office of Compliance & Policy provide a fuller checklist for faculty and staff, as well as an information card for the student.  

What if I don't remember what I'm supposed to do when someone starts to tell me about sexual harassment?  It is ok for you to tell the person that -- to say to them "What you are telling me is important.  I want to help you.  I'm going to quickly check to make sure I'm doing the right thing." Then you can get a pamphlet, check this website or call Haven, the Dean of Students Office, or the Title IX Coordinator.  

GUIDANCE ON IDENTIFYING SEXUAL HARASSMENT (INCLUDING ASSAULT) 

Is sexual harassment just between a man and a woman?  No.  It can occur between persons of the same sex or members of opposite sexes.  

Does sexual harassment have to include sexual behavior?  No.  Harassment may be conduct based on sex that is not sexual in nature.  For example, if a faculty member repeatedly and publicly tells his female colleagues that they are inferior because of gender-specific cognitive processing differences and that they are not qualified to research in certain subject areas, this could constitute sexual harassment, even if the male faculty member is not demonstrating any sexual interest in his female colleagues.    

Does sexual assault always involve force or physical violence?  No.   If someone has sexual intercourse (or other sexual contact) with a student, without that student's consent, that is sexual assault.  

What is effective consent?  Consent is a clear communication of intent and desire to engage in sexual activity.   A student cannot give effective consent when he or she is incapacitated by alcohol or drugs.  Consent is not valid if it is obtained through coercion, intimidation, threat, force, or other verbal or physical pressure.  More detailed definitions of  important terms are found in the Sexual Misconduct Policy.  

The policy defines a few different types of sexual harassment.  What’s the difference?  The two main types of sexual harassment are quid pro quo harassment and hostile environment harassment.  Quid pro quo is “this for that” – a supervisor requiring sexual favors in return for a promotion, a raise, etc.  Other examples of quid pro quo harassment are a professor giving a student a lower grade because the student rejected his romantic advances, or a dean responding to a faculty member’s request for a recommendation by asking the faculty member out to dinner, and then refusing to discuss the recommendation until they became more comfortable back at the dean’s home. 

The second type of harassment is typically a series of actions that cumulatively create a hostile, offensive, or intimidating workplace.  This type of harassment often does not involve conduct of a sexual nature, which distinguishes it from quid pro quo harassment.  For example, if a supervisor tells a female employee that  he regrets that no qualified men applied for her position, asks her to do secretarial tasks that he doesn't ask her male co-workers to do, and makes comments in her hearing such as “women are so moody” and “of course a woman can’t make up her mind”, this could constitute a hostile workplace environment – even though the supervisor never shows any romantic interest in the employee nor makes any sexual overtures.  

At a social function, you spend some time talking with your supervisor.  At one point in the conversation, he reaches out and puts his hand on your hip.  You freeze, completely uncomfortable but not sure how to proceed.  After a few minutes, he takes his hand away and you end the conversation and move away.  Now you are scared that he may make further overtures.  A single act of unwelcome sexual conduct can constitute sexual harassment.  This particular act is not the most severe, but the power differential is an aggravating factor.  Unquestionably, it is inappropriate for a supervisor to touch an employee in this manner and the behavior needs to be stopped.  You could speak to your supervisor about the situation, but it is often difficult for employees to address what they believe to be harassment or inappropriate behavior with the perpetrator.  So it likely will be better to speak to the head of your unit (the appropriate VP, for example) or to Human Resources or the Title IX Coordinator.  See also the FAQ on unwelcome conduct that isn't severe enough to constitute sexual harassment.

Your office has an informal atmosphere, with a fair amount of joking and casual chatting.  Sometimes the jokes and conversations have sexual content.  Although these jokes aren’t directed at anyone, one co-worker will occasionally say, to other employees, “you’re in a bad mood today, did you not get any last night?” and everyone will laugh.  Your supervisor doesn’t usually join in but will laugh along with the others.  You are very uncomfortable with this kind of talk.  Last week, when you were leaving the office early for a doctor’s appointment, someone said “what, going home early to get dolled up and go out on the town?”  This is a borderline situation at best.  Whether it constitute actionable sexual harassment would depend on the frequency of these conduct, the exact wording, the position of the individuals who make these types of jokes and statements, and other circumstances.  The situation clearly describe unprofessional conduct, which the university does not tolerate and your supervisor should stop.  You should speak to your supervisor, if you are comfortable doing so, or you can seek advice from another campus resource.

You are an employee who recently applied for a new position at the university, which has a higher salary.  You didn’t make it past the first phase of the search.  You think it was because the search chair knows you and is biased against you because of your sexual orientation.  If you were not selected because of your sexual orientation, that would be prohibited discrimination.  The form of the discrimination would be disparate treatment, not harassment.  You should speak with the Office of Diversity & Equal Opportunity.  Office staff can help you find out whether you were qualified for the position and whether a complaint should be filed.

GUIDANCE ON REPORTING  See also the next section -- guidance on anonymity and requests not to report.

When must I make a report? University employees (including faculty) must promptly report sexual harassment or assault of an identified student when they become aware of it.  The only exception is for employees and volunteers of the Counseling Center, Student Health Center, and Haven (Care Support Services), who generally are not required to report -- see the Other Employee Scenarios.  In addition, faculty, supervisors, and managers must report any sexual harassment of an identified student or faculty or staff member or any sexual harassment incident where the alleged harasser is identified as a W&M employee (faculty or staff).  

The reporting obligation arises when employees are given or told of a sexual harassment or assault complaint or report affecting an identified student, or when they become aware of any incident or situation affecting an identified student that a reasonable person would understand to be sexual harassment.  The obligation does not arise with reports of hypothetical situations or rumor about unidentified students or employees.

"Promptly" does not mean that a report needs to be immediate and there is no deadline specified; it is a commonsense notion that we should report as quickly as reasonable.  Promptness is important because we need to get support to the victim right away, to support him or her.  It is also important because if a matter is not handled promptly, it can become difficult to investigate or address as memories become stale and records are destroyed, for example.

To whom do I make a report?  It depends on the identity of the alleged offender.  If it is a student, report to the Dean of Students through the online reporting mechanism.  If it is a non-faculty employee, report to the Title IX Coordinator or Human Resources.  If a faculty member, report to the Provost, the appropriate Dean, or the Title IX Coordinator.  When in doubt, reports can always be made to the Title IX Coordinator.

Please be aware that if you are a Campus Security Authority, and if the incident was sexual assault, dating or domestic violence, or stalking, you will also need to make a separate Clery Act report about the incident to W&M Police.  This obligation arises under the federal Clery Act and W&M's Crime Reporting Policy.  For more information, see the Campus Safety compliance resource website.

What are my complaint or grievance options? You may file a complaint internally or externally.  Information about the different complaint/reporting options is provided by the Office of Compliance & Policy.

Why is reporting mandatory?  The university cannot meet its commitment to a safe, nondiscriminatory environment if sexual harassment is not brought to the attention of those officers able to fix the problem.  For example, if a university employee is sexually harassing someone, or if a university employee believes he is being sexually harassed by a co-worker, the university needs to know about it so that the matter can be looked into.  Even if an employee is mistaken in his view that he is being harassed because the unwelcome conduct he is experiencing is not severe or pervasive enough to be sexual harassment as defined by the policy, it is best for the university to know so that it can educate the employee and stop the unwelcome conduct before it becomes harassment.

When dealing with sexual assault, it is vitally important that we support the survivor.   Once our Dean of Students Office is aware of a student reporting an assault, they can provide resources, services, and accommodations to the survivor right away -- without any investigation.  For example, the Dean of Students can change students' housing situations.  They can adjust class schedules.  They can issue no-contact orders.  They can connect students with physical and mental health services.  They can provide full, accurate information about the different reporting options.  They can engage law enforcement (if appropriate).  The Dean of Students' website provides further information.  

What if I really don't think a situation is sexual harassment?  What if I think the person talking about sexual harassment or reporting an assault is being unreasonable or even lying? Depending on the situation, that may matter or it may not.  If you are observing a situation and reasonably do not think it is sexual harassment -- then you do not need to report it.  If, on the other hand, a student reports an assault to you, or if you are a supervisor, faculty member, or manager, and someone complains to you about sexual harassment, which includes someone telling you that he or she is sexually harassed, then even if you think they are wrong or acting in bad faith, you must bring that to a Title IX Coordinator's attention.  You can tell the Title IX Coordinator your opinion and the reasons you think they are wrong or acting in bad faith (lying).  Similarly, if you hear second-hand about a report or complaint, we want to make sure that report is addressed, so we require you to tell us about it.  (Of course, if the report or complaint has already been brought to a Title IX Coordinator, you do not need to make a second report.)  Why do we want this to happen?  For a number of reasons, including:

  • If one of our students or employees feels harassed, even if he or she is wrong or unreasonable, we want to help this person in distress. The distress may affect academic or professional performance and may lead to damaging rumors.  And the feeling of harassment may arise from unwelcome conduct that W&M will want to stop before it becomes sexual harassment; we don't want to sit back and wait for borderline harassment to become full-on harassment.  
  • You could be wrong, and harassment may be occurring.  It is likely that you do not have all the information.  You might be mistaken about what is or is not harassment.  (Have you kept up with the recent regulatory guidance on this topic?)  The person talking to you may be upset and may not present or explain the situation well.  If you are wrong, and fail to bring the matter to light, the consequences for the people involved and W&M could be very serious.  
  • If you are correct and the person is mistaken or unreasonable, it is possible that you could effectively explain to someone that they are not being harassed, that they are confused or mistaken.  But this is a very difficult and risky path to take -- risky for you and for the institution.  This is a conversation we want only those professionals who are trained and experienced in identifying sexual harassment, and authorized to do so by W&M, to have.  
  • It is very rare for someone to fabricate a claim of sexual harassment or assault.  But if this unlikely event occurred, we would want to address it as quickly as possible to protect anyone being falsely accused.  Guidance on false complaints is provided below.

Hypotheticals.  Hypothetical situations involving faculty, supervisors, and other employees are provided to help people understand their responibilities:

GUIDANCE ON FAILING TO REPORT/CONSEQUENCES OF NOT REPORTING

What if I don’t report something that I should have reported?  First, remember that individuals who themselves are harassed  or discriminated against are not required to report.  For others who are required to report, failure to do so may result in disciplinary action.  Any disciplinary action would be imposed under applicable personnel policies.  The nature of the disciplinary action would depend on the circumstances.  For example, a staff member who failed to report a hostile environment in his department because he failed to recognize the environment as hostile would be less serious and so treated differently than a faculty member who decided not to pass along a report of sexual assault brought to him by a student because he (faculty member) decided that it wasn't really assault.

If reporting is mandatory, does that mean that if I’m a victim of sexual assault or have experienced harassment, and I don’t report it, you will take disciplinary action against me?  No.  The mandatory reporting requirement is focused on getting supervisors, colleagues, or others to report discrimination of which they become aware.  The reporting requirement does not apply to the people who have been harassed.  We want people who have been or are being harassed to come to us, so that we can help, but we are not going to penalize them if they do not.

GUIDANCE ON REQUESTS FOR CONFIDENTIALITY, ANONYMITY AND PEOPLE WHO DO NOT WANT A REPORT TO BE MADE

A student comes to me and says that something bad has happened to her and seems like she wants to tell me about it, but she asks me whether our conversation will be confidential.  What do I tell her?  Tell her that you will be discrete, but that depending on what she tells you, you may need to tell someone else.  You can explain this is because the university has an obligation to provide a safe environment for its students.  If she has more questions about confidentiality, please give her the information card included in the Title IX pamphlet, or you could encourage her to visit Haven (Care Support Services).

What do I do when the person who appears to be or alleges to have been harassed or assaulted does not want me to report, or wants to remain anonymous?  If you have information identifying one or more of the parties involved, and if it is a mandatory reporting situation -- that is, if it is harassment (including assault) of a student or if you are a supervisor, faculty member, or manager -- you need to report the matter.  If it involves a student, you may file a report online with the Dean of Students.  

If a person who alleges or appears to have been harassed is reluctant to "go on the record" or have his or her name used in an investigation or does not want an investigation to occur, university officers will work with this person to help him or her understand the protections against retaliation and other protections and resources available and the nature of the processes.  If he or she insists on maintaining his anonymity with respect to the alleged harasser or continues not to want any process (investigation), in most cases W&M will do what the victim wants.  But because we have an obligation to protect the campus community, the university must evaluate this request. The Title IX Coordinator and Dean of Students will consider factors including the nature and severity of the alleged harassment, any evidence indicating likelihood of the alleged harasser engaging in similar behavior in the future, and the viability of proceeding without the participation of the victim/reporting party.  If the Title IX Coordinator and Dean of Student decides that action needs to be taken, such as gathering more information, he or she will handle the matter with sensitivity.

Even if anonymity is permitted, the university will take other steps to limit the effects of the alleged harassment and prevent its recurrence.  An example of such steps would be targetted educational activities.  

GUIDANCE ON REPORTING UNWELCOME CONDUCT THAT ISNT SEVERE ENOUGH TO CONSTITUTE SEXUAL HARASSMENT

The policy encourages people to report unwelcome conduct even if it doesn’t rise to the level of sexual harassment.  Does that mean that unwelcome conduct is also prohibited?  Our goal is to prevent sexual harassment.  To help us do that, we want to stop borderline behavior before it becomes sexual harassment.  If this type of behavior is reported, the university can take appropriate action, such as a supervisor speaking with the employee and explaining why his or her behavior is causing concerns.  It would be absurd for the university to be aware of an employee subjecting coworkers to unwelcome sexual conduct (for example) and do nothing because the conduct hadn't quite yet become severe or pervasive enough to violate the Sexual Harassment Policy.  In some cases, the unwelcome conduct is unacceptable and misconduct on its own, even if it is not sexual harassment.  For example, if an employee is accessing sexually explicit content on his computer, that may be a violation of state law and university computer use policy, even if it is not sexual harassment.

GUIDANCE ON FALSE COMPLAINTS OR REPORTS THAT DO NOT RESULT IN A FINDING OF SEXUAL HARASSMENT

The policy says that it is a violation to make a false complaint.  Does this mean if I report something and it is investigated and determined not to be sexual harassment, I will be punished?  No.  Sometimes, an investigation cannot find enough evidence to prove that sexual harassment occurred.  That is not the same as an investigation finding that a complaint was false. Only in the very rare circumstance of the university finding compelling evidence that you were lying -- that you knew that there was no harassment and made the report maliciously or otherwise deliberately -- would the university consider initiating an action against you for false reporting.  An example of compelling evidence would be an email from you to a colleague in which you talked about your plans to "frame" the accused harasser.  

What happens if an investigation is made and the determination is that there was not a violation of the policy?  The two most common situation that result in a determination of "no violation" are:

  1. the decision-making body cannot find enough evidence to conclude that the alleged conduct occurred.   For example, a female student alleges that a faculty member made repeated, negative comments about her role as a mother holding back her academic success, but the investigation does not find any other evidence supporting this allegation.  
  2.  the decision-making body concludes that the alleged conduct is not sexual harassment.  For example, if a male employee complains about a co-worker asking him out on and complimenting  him on his appearance, it is possible that the decision-making body would conclude that this behavior is not severe or pervasive enough to constitute sexual harassment.  (It is also possible for such conduct to constitute sexual harassment.)  In this situation, it is likely that the co-worker would be directed to stop the behavior but no disciplinary action taken; depending on the facts and circumstances, other remedial action such as separating the individuals could be appropriate.  

Neither of these situations would be considered a "false complaint," unless as described in the preceding FAQ, compelling evidence that the reporting party was lying was discovered in the investigation.  

GUIDANCE ON RETALIATION

What is retaliation?  Guidance about the nature of retaliation is available on this website, as a handout for individuals involved in discrimination investigations.

Who is protected against retaliation?  

  • Anyone reporting or complaining of sexual harassment
  • Any witness in an investigation
  • Anyone who otherwise opposes sexual harassment, such as Jeff, a supervisor who refused his manager's direction to reduce Samantha's performance rating because Jeff reasonably believed the manager's direction was based on Samantha's rejection of the manager's sexual advances.  (Note it would be better for all involved, in this situation, if  Jeff reported the supervisor rather than just refusing the direction)
  • Anyone closely associated with one of the above individuals.  Sometimes people accused of sexual harassment try to get back at their accuser by taking action against their accuser's spouse or friends, for example.  

What can W&M do to protect me against retaliation?  Many things.  We handle complaints as discretely as possible, since breach of confidentiality increases the motivation for retaliation (and also makes investigations more difficult).  

  • In some situations, relocation or reassignment of the accused party or the reporting party, pending the investigation, may be appropriate.  (We will not force a reporting party to relocate or move.)  
  • We commonly issue no-contact orders, to protect parties involved and prevent any retaliation.  
  • In very severe cases, an accused employee may be placed on administrative leave, pending the outcome of the investigation.  
  • We warn individuals accused of harassment of their obligation not to retaliate, give them detailed information about retaliation, and require them to complete a retaliation acknowledgment form, putting them on notice.  
  • We ask others involved in the investigation to be alert for retaliation, and inform the investigator immediately if any adverse action is taken.  
  • If any retaliation is reported, we promptly investigate it and may take steps during the investigation to halt or delay the allegedly retaliatory action if warranted.  
  • If retaliation is found to have occurred, appropriate disciplinary and corrective action will be taken.  For example, if we find that you were retaliated against by being given a negative performance evaluation, the typical appropriate action would be to modify the performance evaluation and discipline the individual(s) who engaged in the retaliatory conduct.