Title: Employee Discrimination, Harassment, and Retaliation Grievance/Complaint Procedure
Effective Date: April 25, 2016
IV. Reporting, Retaliation, and Other Initial Matters
V. Initial Assessment of Report
VI. General Procedural Concerns
VIII. Provost Review/Administrative Resolution
IX. Hearing Preparation and Conduct
XI. Annual Reporting
XII. Approval, Amendment and Interpretation
XIII. Related Policies, Procedures, and Other Documents
A. Purpose. William & Mary is committed to providing a safe and nondiscriminatory environment for all members of the university community, and to respecting the rights of those accused of misconduct. The purpose of this procedure is to provide a fair and effective investigation and adjudication process.
This procedure helps the university implement the Policy on Discrimination, Harassment, and Retaliation (the Discrimination Policy) and the Policy on Sexual Misconduct, Relationship Violence, and Stalking (the Sexual Misconduct Policy). This procedure also helps William & Mary comply with Titles VI and VII of the Civil Rights Act of 1964, Title IX of the Educational Amendments of 1972, Sections 503 and 504 of the Rehabilitation Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Equal Pay Act, the Vietnam Era Veterans' Readjustment Assistance Act, Federal Executive Order 11246, the Genetic Information Nondiscrimination Act, and Virginia Executive Order No. 2, by providing a fair, prompt process to respond to reported violations.
B. Summary of Procedure and Timelines. Under this procedure, reports are assessed by a Review Team to make initial determinations as to the appropriate course of action. If an initial determination to investigate a report is made, the respondent is notified and given an opportunity to respond. If an investigation proceeds, the allegations to be investigated are shared with the parties. Trained investigators interview the parties and witnesses and collect and analyze evidence such as emails and other records and submit an investigation report to the Provost. Each party may have an advisor of his/her choice, who may attend meetings and interviews. The parties have the right to review and respond to the report. The Provost may resolve the matter administratively, subject to certain conditions, and/or may request further investigation or clarification of the report. If not administratively resolved, the Provost determines whether and which allegations proceed forward to a hearing. The parties have an opportunity to request reconsideration of this determination. The hearing is conducted by a hearing panel. The hearing panel's determination is based on the preponderance of the evidence. Either party may appeal the determination to the Provost. The Provost sets sanctions, if appropriate.
The university seeks to resolve matters promptly, within approximately 60 calendar days of a report, for sex-based discrimination/harassment or sexual misconduct, and 90 calendar days, for all other matters. Timelines may be extended for a variety of reasons. The time frames for key process stages are as follows, with the shorter time frames for sex-based discrimination/harassment and sexual misconduct matters:
- Day 1 - report received
- Day 4/8 – initial assessment of report completed
- Day 8/15– initial meetings with parties completed
- Day 25/40 – investigation completed and report submitted to Provost and parties for review and administrative resolution
- Day 30/45 – parties submit any response(s) to report
- Days 30-45/45-60 – Provost administrative resolution (subject to conditions)
- Day 35/55 – Provost submits allegations to hearing panel for possible hearing, if applicable; hearing preparation begins (may continue to attempt administrative resolution during hearing panel preparation)
- Day 47/70 – hearing is held; determination issued
- Day 55/78 – final date for parties to submit appeals/responses to other party’s appeal
- Day 60/90 – Provost issues sanctions and/or resolves appeal
See Section VI(C) for more information about timelines.
This procedure applies to the College of William & Mary, including the Virginia Institute of Marine Science (the university).
This is the procedure for addressing reports of discrimination (including harassment) and retaliation that are alleged or suspected to have been committed by any type of employee, including faculty except as provided in the following paragraph. This procedure is also used to respond to reports of misconduct by third parties (including but not limited to vendors, contractors, alumni/ae, visitors or local residents). Different procedures are used for addressing complaints and concerns of discrimination and harassment by students.
This procedure may not be used for faculty members or former faculty to appeal or complain of decisions not to renew, tenure or promote, except as provided in Section III(C)(1)(d) of the Faculty Handbook. This procedure does not replace other university or Commonwealth Procedures for employees. The Review Team or the Chief Compliance Officer may refer the matter to another procedure, such as the Commonwealth Department of Human Resources Managements’ Employment Dispute Resolution grievance program, if it would be more appropriately handled under such other procedure.
Any member of the campus community can file a report under this procedure; reporting is discussed in Section III and Appendix A.
Exclusions; Special Cases.
- Disability Accommodation Decisions. There are separate procedures for qualified employees or students with disabilities to request reasonable accommodation and to appeal determinations made regarding such requests.
- Applicants. This procedure is not for applicants – either for admission or employment.
- Investigations in Response to External Complaints, Investigations, Charges, etc. This procedure is designed for investigations resulting from internal complaints or reports or an investigation initiated by the university. Investigations made in response to a complaint, charge or other action from an external agency, such as the Equal Employment Opportunity Commission or the Office of Civil Rights of the Department of Education, must comply with the requirements of those agencies and so typically will not follow this investigation procedure.
- Hourly, Wage or Probationary Staff. Hourly (wage) and probationary staff are at-will employees. To conserve university resources and permit prompt response to reported misconduct, allegations against hourly, wage or probationary staff typically will be investigated through a condensed process including meetings with directly involved parties and provision of a brief opportunity to respond. This condensed process may be used for other employment situations as deemed appropriate by the Chief Compliance Officer and the Provost.
- Contractors or Vendors; People not Directly Employed by W&M. Allegations of misconduct by a contractor, such as a Sodexo employee, are typically handled by the company employing the contractor, such as Sodexo. In some cases there may be contractual provision or guidelines or protocols that dictate how the matter will be handled. As a general matter, W&M does not have the authority to discipline contractors or vendors, but will take steps aimed at ensuring that the appropriate entity addresses the reported misconduct. W&M will also take steps to protect members of the university community who are negatively affected by the reported misconduct, such as by asking the employing entity to transfer the contract worker to another work location (a non-W&M work location), if feasible.
- Third Parties. The investigation process outlined in this procedure is designed, in part, to respect the due process rights of employees and to provide the university with a basis to take disciplinary action when warranted. Due process rights and discipline are not applicable for cases involving third parties such as visitors. Therefore, to conserve university resources and permit prompt response to reported misconduct, allegations against third parties typically will be investigated through a condensed process including collection of information and, if warranted, action to prevent the inappropriate conduct from continuing to affect the W&M community, such as a direction to the third party to stay away from W&M campus and activities.
Discrimination is defined in the Discrimination Policy.
Faculty means faculty as defined in the Faculty Handbook: “those persons who have teaching and/or research responsibilities and who hold academic appointments in a department, program or school of the university, as well as those administrators who hold an academic appointment in a program, school or department.” Professional faculty are not faculty for the purposes of this Procedure.
A good faith report is one made with the honest belief that a violation may have occurred. A report is not made in good faith “if it is made with reckless disregard for or willful ignorance of facts that would disprove the allegation.”
Harassment is defined in the Discrimination Policy.
Hearing Panel is the body who hears evidence and renders determinations as provided in Section IX. For matters involving faculty, the panel will consist of five members of the Faculty Hearing Committee. For matters involving staff, the panel will consist of three members of the university community selected by the Office of the Provost.
Misconduct is discrimination, sexual misconduct, or retaliation.
Report is any complaint, report, allegation, accusation, or grievance of misconduct.
Reporting party refers to the person who was discriminated or retaliated against, harassed, assaulted, or otherwise personally and directly experienced the misconduct. See Section IV(A) for third-party reports.
Respondent means the person named, suspected, accused, or alleged to have engaged in misconduct. Reports may have multiple respondents.
Retaliation is defined in the Discrimination Policy.
Review Team is the body that conducts initial assessment of reports. The Review Team consists of the Chief Compliance Officer, or designee, and one or more of the following officers, depending on the identity of the people reported to have experienced or engaged in misconduct or the nature of the reported misconduct:
- for reports involving faculty, the Dean of Arts & Sciences or designee;
- for reports involving students, the Dean of Students or designee;
- for reports involving staff, the Chief Human Resources Officer, or designee; and
- for reports report of sexual violence, in accordance with Virginia law, the Chief of Police, or designee. See Section V for more information about the Review Team.
Sexual harassment is defined in the Discrimination Policy.
Sexual misconduct is a category of behavior that includes physical acts perpetrated against a person’s will or where the person is incapable of giving consent (as defined) and includes actual or attempted:
- Sexual assault
- Non-consensual sexual contact
- Domestic violence
- Dating violence
- Sexual Exploitation
A sexual violence report is any report that a physical sexual act perpetrated against a person’s will or where a person is incapable of giving consent “may have been committed against a student attending the institution or may have occurred on campus” or another part of the university’s Clery Act geography.
Staff means all employees other than faculty.
A. Who May Report a Violation; What is a Report. Any member of the university community who believes they have been discriminated and/or retaliated against may file a report of misconduct under this procedure. Most reports are made by university students, faculty, or staff who report experiencing misconduct. But reports also may be made by someone who is aware of but has not directly experienced misconduct. And reports may be made by people who are not part of the campus community – external or third parties.
Reports will be assessed as described in Section V to determine whether the university has jurisdiction to address the reported misconduct.
Reporting Party Not the Person Who Experienced Misconduct. This procedure assumes that the person reporting the misconduct is the person who was discriminated or retaliated against, harassed, assaulted, or otherwise personally and directly experienced the misconduct. However, reports may also be made by people who witnessed or were informed about misconduct or are otherwise aware of misconduct. In those cases, the reporter will typically not have the rights and role of the “reporting party” under this procedure; instead, the person who experienced the misconduct will be treated as the reporting party, if he or she is willing to participate in the procedure.
Reporting Party Requesting No Action or No Action on Report. Typically, the university will not begin an internal administrative investigation or make a referral to law enforcement without the consent or involvement of the reporting party (or, if a different person, the person who experienced the misconduct), but the university must consider its obligation to the campus community. The Review Team will decide whether an investigation or referral is required after evaluating the Risk Factors, as described in Section IV(A).
Reporting Party Not a Member of the William & Mary Community. Visitors, guests, and other people who experience misconduct from a William & Mary faculty member may report using this procedure. Certain modifications to this procedure, particularly those relating to notifications and disclosure to the reporting party, will be made in such circumstances.
B. How & Where to File a Report. Reports may be made to the Interim Chief Compliance Officer/Title IX Coordinator (the Compliance Officer) either in person, in writing, by phone, or by email:
Pamela H. Mason, J.D., CCEP
109 James Blair Hall
College of William & Mary
Williamsburg, VA 23185
Information regarding other ways to report and reporting options is provided in Appendix A.
C. Other Options for Making Complaints or Resolving Concerns. The university encourages early resolution of all types of grievances. Employees are encouraged to resolve their complaints with the individual most directly responsible, using any applicable procedures. For example, an employee who believes his performance evaluation was discriminatory based on his or her race should first appeal the evaluation through the applicable personnel policy. In some cases, this type of resolution is not feasible or appropriate, and it is never required; individuals always have the right to make a formal complaint.
The university encourages members of the campus community to resolve matters internally, such as by filing a report under this procedure, before pursuing remedies outside the university. But employees and students have the right to directly contact the appropriate external enforcement agency. Information regarding these agencies is available with the Office of Compliance and Equity.
D. Timing of Reports and Availability of Procedures. William & Mary encourages reporting misconduct as soon as possible in order to maximize the university’s ability to respond promptly and effectively. Reports must be submitted to the Compliance Officer within 365 calendar days of the most recent occurrence of the alleged misconduct. The Compliance Officer reserves the right to extend the time limits when circumstances justify an extension.
E. Retaliation. Retaliation should be reported promptly to an investigator or the Compliance Officer and may result in interim measures or disciplinary action independent of the underlying allegations of misconduct. See Section V(B) for discussion of interim measures and Section VI(D) for further information regarding responding to retaliation arising during the course of an investigation.
For more information about retaliation generally, including examples, please visit the Compliance website.
F. Relationship to Criminal Proceedings. Because misconduct, particularly sexual misconduct, may constitute both misconduct and criminal activity, the university encourages people who have experienced sexual misconduct to report the incident promptly to law enforcement. The university is also required to report certain matters directly to law enforcement and/or the prosecutor with jurisdiction, as described in Section IV below.
The standards for finding a violation of criminal law are different from the standards for finding misconduct. This means that conduct may constitute misconduct even if it is not a crime or law enforcement agencies lack sufficient evidence of a crime and therefore decline to prosecute.
This procedure is independent of any criminal investigation or proceeding. The university generally will not wait for the conclusion of any criminal investigation or proceedings to commence its own investigation and impose interim measures to protect the reporting party and the university community, although the university will consider law enforcement requests to delay temporarily (generally no more than seven (7) days).
A. Initial Assessment. Upon receipt of a report, the Compliance Officer will convene the Review Team to conduct an initial assessment.,  The Review Team may conduct confidential, preliminary inquiry, not including interviews, to verify enrollment or employment status, to help determine jurisdiction and/or the appropriate procedure under which to process the matter, or the reporting party’s preferences as investigative or other official action.
The Review Team makes an initial determination as to the appropriate course of action after considering
- the reported misconduct;
- any information provided or collected;
- applicable law and policy, determining which university procedure has jurisdiction over the reported misconduct;
- the reporting party’s preference(s), if stated; and
- any evidence that a report was not made in good faith or is baseless.
For sexual violence reports, the Review Team also assesses the threat posed by the reported misconduct and to determine whether external reports are required.,  The Review Team will make this determination based upon the following factors (the “Risk Factors”):
- Whether the respondent has prior arrests, reports and/or complaints of related misconduct or has any history of violent behavior;
- Whether the respondent has a history of failing to comply with any related university protective or disciplinary measures, and/or any judicial protective order;
- Whether the respondent has threatened to commit violence or any form of sexual misconduct;
- Whether the reported misconduct involved multiple respondents;
- Whether the reported misconduct involved physical violence. Examples of physical violence include hitting, punching, slapping, kicking, restraining, choking and brandishing or using any weapon;
- Whether the report reveals a pattern of misconduct (e.g., by the respondent, by a particular group or organization, around a particular recurring event or activity, or at a particular location);
- Whether the misconduct was facilitated through the use of drugs or intoxicants;
- Whether the misconduct occurred while the reporting party was unconscious, physically helpless or unaware that the misconduct was occurring;
- Whether the reporting party is (or was at the time of the reported incident) a minor (under 18); and/or
- Whether any other aggravating circumstances or signs of predatory behavior are present.
The appropriate course of action may be:
- No further action under this procedure. No action under this procedure may be appropriate for reports that do not allege conduct that violates applicable university policy, reports for which there is insufficient information to initiate an investigation, reports where the person reported to have experienced the misconduct has requested no action and the Review Team’s assessment concludes that this request may be honored (see below), or reports of matters for which the university does not have jurisdiction. No action may also be appropriate when there is evidence that a report is baseless or not made in good faith, although more typically some investigation is required to make such a determination. The Review Team may recommend, to the appropriate administrator, non-disciplinary remedial actions in response to a report. Examples of non-disciplinary remedial actions include support services or accommodations provided to a reporting party, educational activities designed to heighten awareness of specific policies or procedures or to clarify institutional expectations, and modifications to institutional policies or practices. These recommended actions may be appropriate to address reports of harassing conduct that has not become severe or pervasive enough to create a hostile environment, retaliatory conduct not adverse enough to have violated university policy, or other conduct inconsistent with the Discrimination Policy that the university has an obligation to address to prevent discrimination or harassment.
The Chief Compliance Officer or the Review Team may refer a matter to another procedure, for example, the process for appealing a performance evaluation, or the Commonwealth Department of Human Resource Managements’ Employment Dispute Resolution grievance program, if the matter would be more appropriately handled under such other procedure, or may refer the matter for mediation.
- Further action under this procedure (or the procedure used for reports of misconduct by students as applicable). If the reported misconduct involves a faculty member and consists in significant part of conduct potentially protected by academic freedom, such as research activities, classroom discussion, course subject matter, or public writings, the Review Team will consult with the appropriate Dean or the Provost prior to finalizing the determination to take investigative action under this procedure. The Provost and, if there is a faculty respondent, the Chair of the Faculty Hearing Committee, will be notified.
If the reporting party has requested that there be no investigation or requested to remain anonymous or is not participating in the process, in most cases this request will result in no action being taken. The Review Team shall consider, however, whether an internal investigation or some action under this procedure is necessary to protect the health and safety of the campus community or individual faculty members or to fulfill the university’s obligations to provide a campus environment free from discrimination, harassment, and retaliation. In making this determination, the Team will consider the Risk Factors and any evidence showing that the respondent made statements of admission or otherwise accepted responsibility for the misconduct, the existence of any independent information or evidence regarding the misconduct, and any other available and relevant evidence other than the reporting party’s testimony. If a determination is made to proceed with an investigation against the request of the reporting party, the Compliance Officer will notify the reporting party promptly.
If a reporting party has requested an investigation or disciplinary measures and the initial assessment determined not to conduct an investigation, the Compliance Officer will notify the reporting party promptly. There is no right to appeal or request reconsideration of the Review Team’s decision, but the Review Team may change its determination based on additional information, at any time up to a year from receipt of the original report.
B. Interim Measures. The Compliance Officer, in consultation with the relevant Review Team and with approval from the Dean of Students, the relevant Dean, supervisor, or unit head, the Provost and/or University Counsel as needed, will take or cause to be taken interim steps to minimize the impact of the process on the reporting party, protect the safety and well-being of members of the university community, protect the integrity of the investigation (if any), and avoid retaliation. These steps may be taken upon initial receipt of report, after the initial assessment, or at a later point in the process. Interim measures may be adjusted in response to new or additional information, an updated risk assessment, or other developments.
- placing the respondent on administrative leave, in the event of allegations of egregious conduct such as assault;
- issuing a no-contact order;
- transferring the respondent or, with his or her consent, the reporting party, to another department;
- modifying the work schedules of either party;
- temporarily modifying supervisory relationships;
- monitoring/increasing supervision of the respondent; and/or
- notifying William & Mary Police to address any safety/security concerns.
In deciding on interim actions, the Review Team considers the Risk Factors as well as factors such as:
- the nature and severity of the reported misconduct. Reported quid pro quo harassment makes a more urgent case for strong interim action such as transfer of a party than a complaint about a performance evaluation.
- whether it is possible for a party to do their job in a different department or under a different supervisor.
A. Advisors and Silent Supporters. Each party may have an advisor of his or her choice, who may be a lawyer. Each party may also have a silent supporter. The advisor may attend meetings and interviews to advise and support the party. Silent supporters are not permitted to attend meetings or interviews, but may attend the hearing (if any).
- An advisor may accompany the party he or she is advising to that party’s interviews, meetings, and the hearing (if any). An advisor may quietly and briefly confer with or advise the party he or she is advising, and will be provided a limited opportunity to ask questions or raise concerns during meetings, interviews, or hearings. The university expects parties to speak on their own behalf; an advisor does not respond to questions on the party’s behalf. An advisor who disrupts a meeting, interview or proceeding may be required to leave.
- Parties may share records and investigation communications with their advisor, if the advisor agrees to maintain confidentiality.
- Because of the importance of prompt processing of reports, advisors are expected to modify their schedules to attend meetings and hearings. The university typically will not reschedule hearings or grant extensions to accommodate advisor schedules. Arrangements may be made to allow participation by phone or other technologies.
B. Confidentiality, Need-to-Know, and Records Retention. Inquiries about and reports of misconduct shall, whenever possible, be treated with confidentiality. Normally, confidential information will be disclosed to others outside the process only when required by law or when personal safety is at risk. However, an investigation may require disclosure of information. See the university’s Discrimination Policy.
This procedure specifies notification or consultation with various offices and individuals. In addition, the following disclosures may be made:
- Limited disclosure to the respondent’s and/or reporting party’s Department Chair, Program Director, and/or Dean, or supervisor and/or unit head, to inform them that an investigation is being conducted, enlist their assistance with interim measures and retaliation prevention. Such individuals may also be witnesses.
- Disclosure to the Office of University Counsel, for the purposes of obtaining legal advice.
- Limited disclosure to individuals as needed to obtain approval for or implement interim measures and prevent retaliation.
- Disclosures required by law such as in response to subpoenas or Freedom of Information Act requests.
Records produced or collected pursuant to this procedure shall be maintained in accordance with federal and state law, including the Records Retention Schedules of the Library of Virginia, which implement the Virginia Public Records Act. Under General Schedule GS-103, Series 100479, investigative files relating to discrimination complaints against an employee are to be retained for three years.
Precautions are taken to protect sensitive, confidential information including the investigation report and related communications, such as use of secure file transfer technology. Additional steps may be taken when sharing information with people who are not university employees or students, such as providing access to documents rather than copies.
C. Timeline. The university seeks to resolve matters promptly and strives to conclude the investigation and adjudication, including notification of outcome, but not including any appeal(s), within a sixty (60) day time period for sex-based discrimination/harassment or sexual misconduct, and ninety (90) calendar days for all other matters. Section I(B) sets the time periods for specific process stages.
All time periods measured in days, unless otherwise specified, are in calendar days. To the extent a deadline is calculated in calendar days and falls on a weekend or a university holiday or closing, the deadline will be effective on the next business day. Time periods measured in hours are actual hours
Time periods may be extended as necessary to ensure the integrity and completeness of the investigation and/or for appropriate cause. Reasons for extending the timeline include, but are not limited to: compliance with a request by law enforcement; availability of witnesses; scheduled or unscheduled university closings or breaks (including winter and spring breaks); vacations; complexities of a specific case including the number of witnesses and volume of information collected. The timeline for resolution begins with notice to a mandated reporter or the filing of a report with the Compliance Officer.
D. Retaliation, Witness Intimidation, or Other Abuse of Process. Employees and others involved in an investigation are prohibited from contacting witnesses or parties to intimidate them, influence testimony, harass, or circumvent the process in any way.
If reports or evidence of retaliation or misconduct relating to the investigation itself (witnesses collaborating, for example) arise during the course of the investigation, the investigator or other administrator becoming aware of the behavior will notify the Provost or Compliance Officer. The Provost or designee will consult with the Compliance Officer to determine whether additional interim measures are necessary to respond to the reported retaliation or misconduct, and to decide whether to address the reported retaliation or misconduct as a separate matter or as part of the current investigation. If they are addressed as part of the current investigation, the investigation may take additional time to conclude. See the university’s Discrimination Policy.
E. Meetings, Interviews, Communications and Notifications. Unless otherwise provided in this procedure, meetings and interviews (1) may be conducted telephonically, using skype or other technology, or through written communication, to permit prompt complaint resolution and (2) may not be recorded.
All notifications and communications are made in writing and sent simultaneously to each party unless otherwise noted.
See paragraph B for confidentiality.
F. Combined or Multiple Violations. In cases where more than one person is charged with misconduct for the same, or substantially similar or related, misconduct or incidents, the university typically will address the misconduct through a consolidated investigation process.  If a hearing is held or resolution or determinations made, the findings or resolution will be specific to each respondent. See also Section VII(F). Similarly, reports of similar or related misconduct by the same person typically will be investigated together.
G. Rules of Evidence. University proceedings are not bound by strict rules of legal evidence. Reasonable efforts will be made to obtain the most reliable evidence available. Information that does not come from a first-hand source (hearsay) may be considered. Lie detector/polygraph evidence is not permissible. Except as specifically provided in this procedure, the university is not required to consider evidence or decide which evidence to exclude or consider.
As a general matter, evidence of character or reputation is not relevant.
Sexual History, Character, and Reputation of the Reporting Party. In general, a reporting party's prior sexual history, character, or reputation is not relevant and will not be admitted as evidence at a hearing. Where there was a relationship between the reporting party and the respondent and consent is at issue, the prior sexual history between the parties may be relevant to assess the manner and nature of communications between the parties or to explain physical evidence. Prior sexual history of the reporting party with other individuals is not relevant and will not be permitted, except to explain injury.
Evidence of Previous or Other Misconduct or Related Conduct by the Respondent. The following types of evidence may be considered, including in a hearing, to the extent considered relevant:
- evidence of conduct similar in nature to the alleged misconduct by the respondent,
- evidence of a pattern of misconduct or previous or other conduct that should be considered together with the alleged misconduct in determining whether a hostile environment was created, and/or
- evidence relevant to proving intent, state of mind, or identity.
H. Individuals with Disabilities. The university is committed to providing reasonable accommodations for students and employees with documented disabilities, in accordance with the Accommodation Policy and Procedure. Such accommodations may include, but are not limited to, administrative assistance, additional time, and/or an alternative to the formal hearing process. Reporting parties or respondents with disabilities who need reasonable modifications to address suspected misconduct are encouraged to meet with the Compliance Officer/ADA Coordinator as early in the process as possible to identify and plan specific accommodations.
I. Reporting Party Withdrawal of Participation or Request to Halt Investigation or Adjudication Process. Reporting parties have the right to participate or decline to participate in the investigation process, and to withdraw from participation. They university may proceed forward without the reporting party’s participation.
If a reporting party no longer wants the process to continue, the Compliance Officer will consider carefully whether the university is obligated to proceed forward or whether the party’s wishes may be respected, based on the factors described in Section III(A).
J. Roles. The individuals specified in this process may recuse themselves or delegate their roles to others as necessary to ensure impartiality or to accommodate leave or professional or personal conflicts.
K. Duty to Cooperate. Employees are expected to comply with all parts of this procedure throughout the investigation and resolution process.
The following steps occur after a determination has been made to conduct an investigation under this procedure, as described in Section V.
- discuss the complaint or concern;
- discuss other reporting options, if applicable;
- discuss preservation of evidence;
- provide information about the procedure; and
- discuss interim measures including retaliation protections and support services, if applicable.
In some instances, this meeting will take place upon the initial filing of the report, prior to the initial assessment. In other instances, multiple meetings may occur.
The Compliance Officer meets with the respondent to:
- notify him or her that a report has been received and an initial determination made to conduct an investigation;
- identify the reporting party and describe the nature of the initial allegations to be investigated, e.g.,
- racial harassment of [reporting party]
- age discrimination against faculty within the department
- disability discrimination through failure to accommodate [reporting party];
- provide the respondent with an opportunity to provide information or an initial response;
- discuss or communicate interim measures (see Section V(C)); and
- provide the respondent with information about the process and their rights and responsibilities.
If the Compliance Officer receives information in the course of these initial meetings relevant to the allegations or the decision to investigate, the Officer will consult with the Review Team and the initial determination may be changed. The parties will be notified of any significant change, such as a decision not to investigate.
If the investigation proceeds, the Compliance Officer will notify the Provost’s Office for purposes of preparing for possible hearing, and, if there is a faculty respondent, the Chair of the Faculty Hearing Committee (FHC). Investigators will be selected (see Section B below). The Compliance Officer documents the allegation(s) and provides them to the investigators together with the investigation log, copies of correspondence, and any evidence collected. The Compliance Officer also provides a copy of the allegations to each of the parties, who have the opportunity to provide a response to the allegations to the investigators.
All investigators receive training in investigation technique, relevant law, university policies and procedures, impact of trauma on memory, rape myths, evaluating credibility, and other relevant topics. In investigations involving a faculty respondent, investigators work as a two-person team assisted by a trained faculty consultant, selected from the Faculty Hearing Committee, whose involvement, as determined by the Provost, might include participating in interviews. In cases where there is, as judged by the Provost, no academic issue involved, the investigation is not assisted by a faculty consultant. In extraordinary circumstances, external investigators may also be used as needed to ensure an unbiased, prompt investigation, such as when investigating allegations of misconduct by a senior academic administrator.
The investigators’ job is to gather evidence relevant to the allegations, and to document their investigation and the evidence collected in an investigation report. The investigators do not make a determination of responsibility.
- The investigators plan the investigation, including selecting witnesses to interview, determining order of interviews, and deciding which records to collect. The investigators prepare an investigation plan based on the nature of the allegations, the information available, the identity of the parties, and any other relevant factors. The investigation plan specifies witnesses to be interviewed, order (sequence) of interviews if relevant, and other evidence to be sought such as records requests to be made. When the respondent is a faculty member, the investigation plan is shared with the Provost and the Chair of the FHC. The Provost will resolve any disagreements on the plan that may arise.
- The investigation includes interviews with the parties and any other witnesses whom the investigators believe may have relevant information. Each party may suggest witnesses at any time during the investigation – people whom the party believes to have relevant evidence. The party should specify the nature of the information the witness may have to provide. The investigators carefully consider witnesses suggested by the parties, but have discretion to determine which witnesses appear likely to offer relevant evidence.
- Each party may submit evidence at any time during the investigation. Parties are not required to themselves uncover and produce evidence; if a party has cause to believe certain evidence exists, he or she should discuss the issue with an investigator.
- The investigators may modify the allegations over the course of the investigation in response to information collected or additional incidents of misconduct reported or detected. The investigators will notify the parties of any significant modifications to the allegations and provide them with an opportunity to respond. If the modification would add a new respondent, the investigators will consult with the Compliance Officer and, if the new respondent would be a member of the faculty, the Provost to determine whether to add the respondent to the existing investigation or whether a separate investigation should be initiated, considering the stage of the investigation, the ability to provide the new respondent with rights provided by this process, including the right to an initial meeting and opportunity to respond as provided in Section VII(A), and other factors. See Section VI(F).
The investigators are supported by and work with the Compliance Officer and Provost or designee to respond to issues that may arise during the investigation such as retaliation concerns, (see paragraph D) or the need for modification to interim measures.
C. Investigation Report. When the investigation is complete, the investigators will provide the Provost and the parties with an investigation report summarizing the investigation process and the relevant evidence collected. The report typically will:
- describe the allegations investigated including the elements of each alleged policy violation;
- provide relevant information regarding the parties, key witnesses (if any), and other contextual natters such as locations or specific events;
- describe the investigation, i.e., the witnesses interviewed and evidence collected
- include a timeline of events, if useful; and
- summarize the relevant evidence discovered, outlining which elements of each allegation are contested and relevant corroborating or contradicting evidence. As an example, a report may state that sexual contact was not disputed and that the only disputed issue is whether effective consent was given/received, then proceed to summarize the evidence found (witness statements, records, etc.) relevant to the existence of effective consent.
Law or policy requires protection for certain types of information including for example, information derived from medical records. Redactions or summaries of relevant information may be made to ensure confidentiality. The investigation report may include the investigators’ assessment of the credibility of witnesses and strength of specific evidence. Except for allegations relating to a faculty respondent, the investigation report may include recommended findings as to whether a violation of policy occurred.
The university strives to complete the investigation and submit the investigation report as noted in the timeline provided in this procedure. The Parties have an opportunity to review and respond to the investigation report, as provided in Section VIII.
D. Third-Party Participation. Third parties other than advisors, and the faculty consultant (as appropriate) are not permitted to be present during interviews; interviews are attended by the interviewee, the investigator(s), a note-taker (in the discretion of the investigator(s)), and, for interviews of a party, the party’s advisor (if desired by the party) .
Upon completion of the investigation, the Provost and the parties review the investigation report; the Provost may request additional investigation or clarification of items in the report and the parties may provide responses. The Provost may resolve the matter administratively (subject to specified conditions), and/or determines whether and which allegations proceed to hearing.
A. Parties’ and Provost Review of Report; Finalization of Investigation Report. Each party has the right to submit a written response to the investigation report, which may include additional evidence and identification of issues or statements that they believe to be in error or as warranting additional investigation, to be considered by the Provost and hearing panel (if applicable); see Section IX. Any response must be submitted within five days and typically will be shared with the other party.
The Provost reviews the investigation report and any materials provided by the parties. The Provost may request that the investigator(s) conduct additional investigation and/or supplement or make clarifying or correcting revisions to the investigation report. The university will strive to complete the review and investigation report finalization as noted in the timeline provided in this procedure.
For allegations with a faculty respondent, the Provost may resolve matters as follows:
- A resolution that does not include a major sanction (see Section III(F)(1)(b)(viii) of the Faculty Handbook and Section XI(B) of this procedure) may be imposed by the Provost. Either party may request reconsideration of the resolution by filing a request, specifying the reasons or bases for reconsideration, with the Provost within five days of notification of the resolution.
- A resolution that includes a major sanction for a faculty member may be made with the consent of both parties who have five days to provide that consent, provided that each party’s consent is limited to those elements of the major sanction directly relating to him- or herself. This resolution is non-appealable.
For allegations with staff or third-party respondents, the Provost may issue a determination and impose sanctions and/or remedies as appropriate. Either party may request reconsideration of the resolution by filing a request, specifying the reasons or bases for reconsideration, with the Provost within five days of notification of the resolution.
In all cases of administrative resolution, each party is notified of the resolution, the rationale and any sanction; the reporting party is also notified of any remedies offered to him or her. See Section X(B) for guidance regarding sanctions and remedies.
The Provost will strive to conclude any administrative resolution promptly and within the timeline provided in this procedure.
C. Provost Review; Authorization of Hearing. If the matter is not administratively resolved, the Provost determines whether and for which allegations a hearing is warranted. The parties are notified. For cases involving faculty (either as a respondent or a reporting party), either party may request reconsideration of this decision as provided in Section IX(A).
The hearing is a process by which the university decides whether misconduct has occurred and/or whether the reporting party’s rights have been violated through discrimination or retaliation, by deciding whether the allegations are supported by the evidence collected during the investigation. The hearing is not a courtroom-like process and is not adversarial in nature.
A. Hearing Preparation. For hearings of allegations with a faculty respondent, the Faculty Hearing Committee is notified and the Provost submits to the Chair of the Faculty Hearing Committee the investigation report and any response provided by the parties (see Section VIII). For all other matters, the Provost submits the investigation report and any response provided by the parties to the selected panel members. Each party is notified in writing of:
- The allegations proceeding to hearing and the rationale for any allegations not proceeding to hearing.
- For cases involving faculty, the right to request reconsideration of the decision regarding whether and which allegation(s) proceed to hearing. Such a request must be made within 72 hours of the Provost’s notification, and the hearing preparation will continue while the Provost considers such request.
- The right to request to introduce witnesses at the hearing. These requests must be made within three days of the Provost’s notification and must be justified by explaining the purpose and relevance of the witness.
- The right to suggest topics to be explored by the hearing panel, by providing such topics in writing to the hearing panel within three days of the Provost’s notification.
- The right to request one postponement of the hearing, citing the reasons for the request in a written statement to the Hearing Coordinator at least 72 hours in advance of the hearing, except in the case of emergency. The party may be requested to provide supporting documentation of the need for delay. The Hearing Coordinator, in his or her discretion, may grant a postponement for good cause.
The hearing panel prepares for the hearing as follows:
- In matters involving faculty members, FHC members with a conflict of interest or bias are excused and other eliminations made as necessary to establish a five-person hearing panel.
- The hearing panel members review the investigation report.
- The hearing panel sets a hearing time and date and notifies the parties of the time, date, location, and composition (names) of the panel. The university will aim to hold the hearing within ten to fifteen days from receipt of the allegations from the Provost. The parties will be given at least five days’ notice of the hearing date.
- The panel reviews any requests for witnesses or topics for exploration submitted by the parties and determines whether and which witnesses it will call and will notify the parties of the witness list at least 48 hours prior to the hearing.
- The panel reviews any new evidence submitted by the parties and determines whether good cause exists to introduce the evidence at the hearing.
- In consultation with the hearing panel, the Provost will designate a trained administrator or faculty member to serve as Hearing Coordinator and summarize the allegations, the investigation, and the relevant areas of dispute for the panel. The Hearing Coordinator also assists in the conduct of the hearing.
- Parties’ advisors and/or silent supporters may be present during the hearing as provided in Section VI(A).
- Each party has the opportunity to make a brief statement and/or provide a written statement.
- The panel asks questions of the parties and any witnesses, which typically will include the investigators.
- Neither party is required to attend the hearing. Each party may request options to allow them to attend without being in close proximity to the other party, such as privacy screen or participating by phone or videoconference from a nearby location.
- In matters of sex- or gender-based discrimination or sexual misconduct, the parties may not question each other directly. A party may submit questions to be explored at hearing, as described in Part A of this Section IX.
- The panel may call witnesses to provide professional opinion on the elements of university policy, evaluating credibility, and other topics.
- Hearings are private and confidential.
- A verbatim record of the hearing or hearings will be taken and a transcript will be made available to the parties, without costs, upon request.
C. Deliberation and Determination. The panel determines whether the reporting party’s rights were violated through discrimination or retaliation and/or whether a respondent engaged in misconduct. The panel deliberates in private. The panel makes its determination by a simple majority vote.
The standard of proof used to make a determination is preponderance of the evidence. The panel may make recommendations as to sanctions and remedies. See Section X(B) for guidance regarding sanctions and remedies, and Attachment B for possible sanctions.
The panel documents their determination, recommendations, and rationale, in compliance with applicable law. This notification is communicated to the Provost and the parties within two days of the hearing.
D. Conduct of the Hearing. Employees and others who appear before the hearing panel, whether as parties to the proceedings or as witnesses, are expected to provide truthful and accurate information.
Advisors and silent supporters may attend the hearing, with their roles defined above Section VI(B).
The Provost reviews the panel’s determination to impose sanctions and remedies, if appropriate. He also decides any appeals.
- Procedural irregularity that denied the appealing party a fair process.
- Determination inconsistent with the evidence.
- New material evidence previously unavailable.
An appeal must be filed within five days. The other party is notified of any appeal and has three days to provide a response to be considered by the Provost in reviewing the appeal.
The Provost’s determination may be:
- There is insufficient basis to grant the appeal. The panel’s determination stands.
- Substantial procedural error occurred that denied a party a fair process. The Provost may direct relief or may order a new investigation, a new hearing, or a new deliberation.
- The panel’s determination was not supported by the evidence. The Provost reviews the determination for clear error, including error in evaluation of the evidence. The Provost may modify the determination or may order a new hearing or re-submit the matter to the panel to conduct a new deliberation.
B. Provost Review; Sanctions and Remediation. The Provost reviews the panel’s determination and any sanction recommendations, and any appeal filed. If no appeal is filed, the Provost’s role is to determine the sanction; if an appeal is filed, he considers the determination of responsibility (misconduct) and, if appropriate, sanctions and remedies. The Provost consults with the Compliance Officer and determines:
- the disposition of the appeal, if any, as described in paragraph A of this Section IX;
- sanctions of the respondent, if relevant;
- any remedies for the reporting party; and
- other remedial actions to be taken.
The purpose of sanctions and remedies is to remedy the effects of the misconduct and to prevent future misconduct. Sanctions may or may not be the action that the reporting party requests or prefers. Sanctions must be effective and fair. The appropriate discipline will depend on the facts and circumstances of the case including the nature and severity of the conduct, its impact on the campus community, any disciplinary history of the respondent, and other factors, and will comply with any applicable policy (such as the State Department of Human Resources Policy 1.60 applicable to classified and operational staff). See Appendix B for a list of possible sanctions. Remedies may be specific to the reporting party, such as revocation of an action determined to have been discriminatory, or may relate to a larger group or to the community as a whole, such as outreach activities.
The parties are notified of the determination, appeal outcome, sanctions, and rationale, as permitted by law; the reporting party is notified of remedies offered to him or her.
The Provost will report annually to the Faculty Assembly an anonymized account of the preceding year’s cases involving faculty under this procedure.
This procedure replaces the procedure formerly included in the Faculty Handbook (Section III(F)(2)), and replaces the Discrimination Grievance/Complaint Procedure. This procedure was approved by the President.
The President has authorized the Provost, with the approval of the Faculty Assembly and the Personnel Policy Committee, to amend this procedure; provided that amendments relating solely to non-faculty employees or third parties do not require Faculty Assembly or Personnel Policy Committee approval. The President has authorized the Compliance Officer, with notification to the Provost and the Faculty Assembly, to make minor, technical revisions to this procedure such as updates to office titles, references to other policies, appendices, or hyperlinks.
This procedure shall be interpreted for consistency with other policies of the university (including its Discrimination Policy and Sexual Misconduct Policy). In the event of a conflict, this procedure shall control.
 Title VI, 42 U.S.C. 2000d et seq., prohibits entities accepting federal funding (including federal financial aid for students) from discriminating on the basis of race, color, and national origin. Title VII, 42 U.S.C. 2000e et seq., prohibits employment discrimination based on race, color, religion, sex (including gender and pregnancy), and national origin.
 Section 503 of the Rehabilitation Act of 1973, as amended, requires W&M, as a federal contractor, to take affirmative action to hire, retain, and promote people with disabilities, including by taking steps to prevent and respond to discrimination and to protect employees from retaliation. Section 504 prohibits entities accepting federal funding (including federal financial aid for students) from discriminating against people with disabilities, and requires such entities to take reasonable steps to accommodate disabilities. The implementing regulations require institutions to adopt “grievance procedures” to address complaints of discrimination. See 41 C.F.R 60-741.44 and 34 C.F.R. 104.7(b).
 Title I of the ADA, 42 U.S.C. 12111-12117, prohibits employment discrimination against people with disabilities and requires employers to take reasonable steps to accommodate disabilities. Title II of the ADA, 42 U.S.C. 12131-12165, requires public entities to provide physical and programmatic access to their facilities and services for people with disabilities. Title III of the ADA, 42 U.S.C. 12181-12189, prohibits discrimination on the basis of disability in places of public accommodation and requires new construction to comply with specific guidelines designed to provide access to individuals with physical disabilities.
 The Equal Pay Act is part of the Fair Labor Standards Act (FLSA) and appears in 29 U.S.C. 206(d). The EPA prohibits compensation discrimination on the basis of sex, specifically pay discrimination between men and women performing jobs requiring substantially equal skill, effort and responsibility under similar working conditions.
 VEVRAA requires federal contractors to take affirmative action to employ and support certain categories of military veterans and prohibits discrimination against these veterans. See 41 C.F.R. 60-300.44.
The federal Executive Order, as amended, requires affirmative action in employment and prohibits discrimination on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin.
 This summary is provided to help readers quickly understand the basic process. If there are any differences between this summary and the more detailed provisions in the body of this policy, the more detailed provisions apply.
 Note that reports may be made and received in different ways; this refers to the point at which an actionable report with a willing reporting party is received by an appropriate administrator. Other situations exist.
 Non-consensual sexual intercourse is a form of sexual harassment. Non-consensual sexual contact and sexual exploitation may, depending on the severity and frequency and any other unwelcome conduct, constitute sexual harassment. Domestic violence may constitute sexual harassment, if the criminal conduct is based on sex. Dating violence typically will constitute sexual harassment. Stalking may constitute sexual harassment, depending on the severity or frequency and whether the conduct was based on sex.
 This procedure gives reporting parties certain rights to information, notifications, and participation in the investigation and resolution process. These rights are not typically afforded to external parties.
 This procedure is not intended to impair or limit the right of anyone to seek remedies available under state or federal law. Since federal and state procedures require that complaints be filed within specific deadlines from the onset of the discriminatory behavior, individuals who pursue the internal complaint procedures described in this procedure may fail to meet state and federal guidelines for filing a complaint. Accordingly, a complaint may be filed with an external agency in order to meet state and federal agency deadlines without jeopardizing one's right to university process.
 For reports of sexual violence, the Review Team will convene within 72 hours, as required by law; in all other cases, the Team will convene as early as practicable. This meeting may be conducted by telephone or through other technology to permit prompt assessment.
 When considering covered reports of sexual violence, the Review Team operates as a Title IX Review Team and Threat Assessment Team pursuant to Va. Code 23.1-806, and has access, under Virginia law, to certain otherwise confidential information, including law enforcement records and criminal history information, as provided in Va. Code §19.2-389 and §19.2-389.1; health records, as provided in Va. Code §32.1-127.1:03; university disciplinary, academic and/or personnel records; and prior reports of misconduct maintained by the Title IX Coordinator. The team will have access to all available facts and circumstances and may seek additional information about the reported incident through any other legally permissible means.
 In cases involving alleged act of sexual violence would constitute a felony violation of Section 18.2-61 of the Virginia Code, the W&M Police representative on the Review Team must consult with the Commonwealth’s Attorney and/or the prosecutor with jurisdiction within 24 hours and provide the information received by the Review Team, withholding any personally identifiable information about the parties. If the Review Team cannot reach consensus, the W&M Police representative on the team shall make the determination as to whether the report is required. In some instances, the notification would be in the form of an incident report to W&M Police.
 If the Review Team cannot reach consensus on a sexual violence report, the Title IX Coordinator shall make the determination with respect to an internal investigation. In all cases, the W&M Police representative makes the notification to law enforcement.
 Mediation requires the willing participation of the parties. Mediation may be appropriate for matters that appear to arise from communication difficulties or problematic workplace relationships, rather than illegal discrimination or harassment. Mediation is not used in sex-based discrimination/harassment matters. See Appendix A for information about mediation resources.
 The Discrimination Policy provides “This policy is not intended, and may not be applied, to abridge free speech or other civil rights of any individual or group. Speech or any other expressive conduct can, however, be discriminatory and violate this policy, for example by creating a hostile environment as defined in Section II of this policy. This policy is not meant to prohibit academic freedom, including classroom discussion of controversial matter and research activities.”
 The Faculty Handbook specifies the process and approvals required to, as an interim measure, place a faculty respondent on administrative leave (suspension), transfer the respondent, or make changes to teaching or other significant duties.
 The Compliance Resource website “Privacy and Confidentiality – For Students and Employees” provides further information on privacy policies relating to employees.
 Investigation plans are investigators’ best efforts to outline key investigation activities. Witness availability, evidence discovered in the investigation, and other events and circumstances affect investigation processes, and may result in investigation activities not being conducted as anticipated by the plan. Investigators make reasonable efforts to update the plan to reflect significant changes.
 If a response includes sensitive content, such as (for example) medical records or sensitive personnel information regarding a non-party, a party may request that such materials be redacted or summarized or the university may itself identify and take steps to protect such content. Any redaction or summary shall be made with consideration of the respondent’s due process rights.
 For allegations with a faculty respondent, this decision is made on a basis similar to the summary judgment standard used by courts; the Provost views the evidence in the light most favorable to the reporting party and dismisses the allegation if there is no material dispute of fact and the alleged misconduct does not violate university policy.
 FERPA, VAWA, Title IX, university policy (Statement of Rights and Responsibilities), and state policy regarding personnel records may impose limitations or requirements on what is included or disclosed in a determination notification, depending on the nature of the allegation(s) and the identity (e.g., student or faculty) of the parties. The Compliance Officer and/or University Counsel can advise on these limitations or requirements.