What is discrimination?
When someone is treated differently because of their race, sex, or any other protected trait, that may be discrimination. There are several different forms of discrimination: disparate treatment discrimination, disparate impact discrimination, harassment (with some unique elements for sexual harassment), and retaliation. In addition, failure to provide reasonable accommodation for individual's religious practices or beliefs or for qualified individuals with disabilities is another form of discrimination.
Disparate Treatment Discrimination
A person with decision-making authority takes a protected trait into account in an employment or academic decision made. This can be the result of racial (for example) animus – an active bias against individuals possessing a certain characteristic. It can also be the result of unconscious bias, or stereotyping. Examples include:
In order for a decision or action to constitute disparate treatment, it must have a significant impact on the student or employee. If the action does not have enough effect to constitute disparate treatment discrimination, it could be part of a hostile environment, if there are other negative actions being taken. This is discussed under harassment, below.
Disparate Impact Discrimination
This type of discrimination exists where a policy or practice of the university that appears neutral – that is, that does not appear to differentiate based on a protected trait – results in a difference in the way a benefit or service or work opportunity is provided to individuals of a certain race, national origin, sex, or other protected trait. In some cases, these types of policies or practices are legitimate, even if they do have a disparate impact.
Some examples of policies that could create a disparate impact include:
A practice that affects more African-American employees (for example) than white employees because the the practice is applied only in a particular department that is largely staffed by African-American typically would not constitute disparate impact discrimination.
This type of discrimination is uncommon at institutions like William & Mary. Most discrimination in the workplace (or educational setting) takes the form of disparate treatment, harassment, or retaliation.
Discriminatory harassment is a form of discrimination, and so violates William & Mary policy when it becomes severe or pervasive.
The university defines discriminatory harassment as unwelcome conduct that 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. Often, harassment takes the form of words and actions that create a hostile or offensive work or educational environment.
In order for harassment of a student or employee to be a violation of university discrimination policy, the conduct must be because of or based on an irrelevant personal factor, as defined in the Policy on Discrimination, Harassment, and Retaliation. If a hostile environment exists for some other reason, that would be a matter for a supervisor, Human Resources, a Dean or the Provost, or the Dean of Students.
Harassment based on sex – sexual harassment – can take a different form, and so is often described separately from other forms of discriminatory harassment.
More information about harassment and its relationship to bias incidents and hate crimes is available on the harassment, bias and hate crimes site.
Sexual Harassment (Iincluding Sexual Assault)
Sexual harassment can occur in the form of a hostile or offensive environment, like other forms of discriminatory harassment. Sexual harassment also occurs in a form unique to sexual harassment, commonly called "quid pro quo" harassment. The university's Discrimination, Harassment, and Retaliation Policy defines the different forms. Sexual assault and other forms of sexual misconduct are particularly severe forms of sexual harassment. They are defined in the Policy on Sexual Harassment and Misconduct, Relationship Violence, and Stalking.
Here are some examples of what may constitute sexual harassment, as defined by university policy:
FAQs for faculty and staff provide more information and guidance on sexual harassment.
Retaliation is another form of prohibited discrimination. Retaliation is adverse action taken against an employee (including a faculty member) or student for opposing discrimination (including harassment) or complaining of conduct reasonably believed to constitute discrimination or otherwise participating, in good faith, in a discrimination complaint or investigation. Prohibited retaliation can take many forms, including:
The above examples are provided for illustration and education only; in all cases the conduct or action in question is considered in context under the standards set forth in university policies and procedures. Additional information is available in a handout for employees who participate in an internal investigation, answering frequently asked questions about retaliation. The EEOC also issued guidance on retaliation in August 2016.
This guidance is about discriminatory retaliation -- retaliation against someone for opposing discrimination in some way. There are other activities that are protected from retaliation. For example, the Whistleblower Policy prohibits retaliation. But other forms of retaliation are not dealt with under discrimination policies and procedures.
Reasonable Accommodation Requirements
There are two types of protected traits or characteristics that universities are required to accommodate -- to make reasonable modification or alterations to practices or work or educational conditions. These are (1) disability and (2) religious beliefs and practices.