Individuals who assert their rights to be free from discrimination on campus or who participate in a complainant process are protected from retaliation. Retaliation is defined as:
- Adverse action
- Taken against a person for engaging in protected activity
- The adverse action is caused by the employee's participation in the protected activity.
Retaliation is strictly prohibited at William & Mary. Individuals can be found responsible for retaliation even if the underlying allegation of discrimination is unfounded.
What is Protected Activity?
A person engages in a protected activity when, in reasonable good faith, they:
Protected activity can be informal or formal and does not have to include specific terms like "discrimination", "harassment", "hostile environment" or other legal terminology.
What is Adverse Action?
Any action that could have the effect of deterring a reasonable person from engaging in protected activity is adverse. In the employment context, adverse actions can be work related, such as:
It can also be non-work related, such as:
What is Not Adverse Action?
Petty slights, minor annoyances, trivial punishment or actions that are not likely to deter an employee from engaging in protected activity are not considered adverse actions. The specific facts of a case are considered to determine if the action rises to the level of being adverse.
When is Adverse Action not Retaliation?
Employment action that is taken for non-discriminatory reasons will not be considered retaliation. Retaliation is not a shield. If an employee files a complaint, and then begins to arrive to work 15-20 minutes late on a regular basis and does not notify the supervisor of their tardiness, then the supervisor has the right to address the conduct and issue a counseling memo or other disciplinary notice.
On the other hand, if the employee who filed a complaint is regularly 5-10 minutes late to work even before the complainant was filed, and other employees are also regularly late to work, then a counseling memo the week or weeks after the employee filed the complaint might negate a non-discriminatory reason and give rise to a retaliation complainant for discipline relating to conduct that was never addressed prior to the complainant and is not being addressed to other employees engaging in the same conduct.
How is Causation Determined?
The standard for assessing complaints of retaliation requires a "but for" retaliatory motive. In general, the university looks at the whether or not the adverse action would have been taken but for retaliatory purposes. If there are multiple causes for the adverse action being taken, it must be shown that retaliation was the primary motive.
Close proximity in time between when the person engaged in protected activity and when the adverse action occurred is more likely than not going to support the assertion that the adverse action was motivated by retaliation.
Engaging in protected activity, however, does not shield an employee from all discipline or discharge. Employers are permitted to discipline or terminate employees if motivated by non-retaliatory and non-discriminatory reasons that would otherwise result in such consequences. Supervisors are strongly advised to seek advice from Human Resources, University Counsel or the Office of Compliance & Equity prior to taking non-discriminatory personnel actions against an employee who has engaged in protected activity.