Discrimination Guidance

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:

• A supervisor assigns workloads based on the race or national origin of employees.

• A professor grades students with disabilities more harshly than other students.

• A university administrator allows time off to attend services to members of one religion, but not to members of another.

• A hiring manager drops a candidate from consideration because of the candidate’s caretaker responsibilities.

• An instructor gives all the intellectually challenging assignments to males.

• A university refuses to admit students of a particular ethnicity.

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 performance evaluation policy that considers how much sick leave an individual has taken to care for children.
• A personal appearance policy requiring men to be clean-shaven, since such a policy has a disproportionate negative impact on African-American men.

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.

Harassment

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: 

• A student receives a poor grade for failing to submit to a teaching assistant's demands for sexual favors 
• Sexual innuendo renders a classroom discussion so pervasively hostile that students are unable to focus on the discussion
• Residents of a dormitory repeat sexual taunts and repeatedly leer at members of the opposite sex, rendering the workplace dormitory hostile and intolerable
• Students who refuse to engage in pervasive sexual banter are excluded from a university activity
• Student engages in sexual intercourse with another student who has not consented.  Visit the sexual violence website for more information about non-consensual sexual intercourse and other forms of sexual misconduct.

FAQs for faculty and staff provide more information and guidance on sexual harassment.  

Retaliation

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:

• A supervisor bullying an employee who filed a discrimination complaint against the supervisor

• Members of a department isolating or ridiculing a colleague because she initiated a sexual harassment investigation against a member of the department

• A fraternity or other student group posting flyers across campus accusing a student who filed a sexual assault charge against a member of the fraternity/group of lying, referring to the accusing student by name

• A department head excluding a professor from department meetings because the professor filed a complaint of salary discrimination based on her gender

• A supervisor refusing to provide a recommendation for an employee with a good performance record after the employee filed an equal pay act lawsuit against the university
• A program director refusing to speak to a student participating in the program because the student alleges that the university engaged in racial discrimination by failing to provide the student with scholarship funding to participate in the program
• A supervisor giving an employee an unjustified poor performance evaluation, after being required (against his wishes) to allow her to flex her schedule to accommodate her disability
• A supervisor giving an employee a negative performance evaluation because the employee’s wife filed an age discrimination claim against the university

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.  

• Disability Accommodations.  People with disabilities are entitled to accommodation under William & Mary's Employee Reasonable Accommodation Policy and Procedure and Student Disability Accommodation Policy and Procedure.  
  
  • To request an accommodation or for information about disability accommodations, employees or applicants for employees should contact the Office of Diversity & Inclusion 
  • The ADA Coordinator provides guidance about the rights of faculty and staff with disabilities.
  • The Office of Compliance & Equity provides information on how to file a complaint of disability discrimination, including for failure to accommodate.  
• Religious Accommodations.  Employees and students are entitled to have their religious beliefs and practices accommodated, unless accommodation would create an undue burden. Examples of accommodations include allowing employees to schedule breaks to accommodate prayer times and modifying standards of dress.
  • To request an accommodation or for information about religious accommodations, employees or applicants for employees should contact the Office of Diversity & Inclusion.  The Office also provides guidance in the form of frequently asked questions.  
  • To file a complaint of religious discrimination (including for failure to accommodate), contact the Office of Compliance & Equity.