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Employee Discrimination, Harassment, and Retaliation Grievance/Complaint Procedure

Title: Employee Discrimination, Discriminatory Harassment, Retaliation, and Sexual Misconduct Complaint Procedure 
Effective Date: April 25, 2016

Revision Date:  August 14, 2020

Responsible Offices: Provost Office/Compliance & Equity Office

Recognizing that the federal regulations were finalized May 6, 2020 with an implementation date of August 14, 2020, this procedure and related policies have been approved by the President and will take effect immediately on an interim basis. Per the Creating & Maintaining Whole University Policies & Procedures, an interim policy (or procedure) is adopted on an emergency basis when there is not sufficient time to allow for the full approval process, but such a policy or procedure can only be in effect for up to one year.  The Faculty, Professional/Professional Faculty, Staff and Student Assemblies are being provided a full opportunity to review this interim policy and related procedures and provide feedback from their respective constituents to the Office of Compliance by December 1, 2020.


I.  Purpose & Summary of Procedure
II.  Scope
III.  Definitions
IV.  Reporting, Retaliation, and Other Initial Matters
V.  Initial Assessment of Report
VI.  General Procedural Concerns
VII.  Investigation
VIII. Standard of Review; Administrative Resolution; Determination Hearing
IX.  Hearing, Sanctions & Remedies
X.  Appeals
XI.  Annual Reporting
XII.  Approval, Amendment and Interpretation
XIII.  Related Policies, Procedures, and Other Documents

I.  Purpose

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, Discriminatory Harassment, and Retaliation (the Discrimination Policy) and the Policy Prohibiting Sexual Harassment, Gender-Based Harassment and Sexual Misconduct  (the Sexual Misconduct Policy).  This procedure also helps William & Mary comply with Titles VI and VII of the Civil Rights Act of 1964,[1] Title IX of the Educational Amendments of 1972,[2] Sections 503 and 504 of the Rehabilitation Act,[3] the Americans with Disabilities Act,[4] the Age Discrimination in Employment Act,[5] the Equal Pay Act,[6] the Vietnam Era Veterans' Readjustment Assistance Act,[7] Federal Executive Order 11246,[8] 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 allegations to be investigated are shared with the parties, and the respondent is given an opportunity to respond.    Trained investigators interview the parties and witnesses, collect and analyze evidence such as emails and other records, and submit an investigation report to the Determination Official.  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 Determination Official 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 Determination Official determines whether and which allegations proceed forward to a hearing.  If one or more of the allegations are classified as Title IX sexual harassment under the Sexual Misconduct Policy, the matter automatically proceeds to a hearing.  The parties have an opportunity to request reconsideration of this determination to the Provost or designated appellate officer.  The hearing is conducted by a hearing panel. The hearing panel's determination is based on the preponderance of the evidence.  The Provost sets sanctions, if appropriate.  Either party may appeal the hearing panel determination or sanctions imposed to the appellate officer. 

The university seeks to resolve matters promptly, within approximately 60-90 business days of a report.  Timelines may be extended for a variety of reasons upon written notification to all parties. 

II.  Scope

This procedure applies to William & Mary as a whole university, including the Virginia Institute of Marine Science (the university).

This is the procedure for addressing reports of discrimination, harassment, retaliation, and sexual misconduct 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 Title IX Coordinator 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.

  1. 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
  2. Applicants.  This procedure is not for applicants – either for admission or employment.  
  3. 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.  
  4. 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. 
  5. 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.

III.  Definitions

Appellate Officer means the Provost or, in cases where the party appeals the sanctions imposed by the Provost, the Provost’s designee, who responds to appeals of determination and/or sanctions imposed under this procedure.

Civil Rights Review Team (“Review Team”) means the group of university administrators that receive and assess all reports of discrimination, discriminatory harassment, retaliation or sexual misconduct. The Review Team for complaints involving a student consists of representatives from the Office of Compliance & Equity, the William & Mary Police Department, and the Dean of Students Office.  The Review Team may include a representative from Human Resources or the Dean of Arts & Sciences, if staff or faculty is a complainant or respondent in the reported matter.  The Review Team operates pursuant to Va. Code §23-9.2:10 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 Office of Compliance & Equity. 

Complainant means an individual who is alleged to be the victim of conduct that could constitute discrimination, discriminatory harassment, including sexual harassment, retaliation or sexual misconduct as defined in the Discrimination Policy and the Sexual Misconduct Policy.

Determination Official means the person who makes an administrative determination of a responsibility or non-responsibility for each allegation investigated, and/or refers allegations to a Hearing.

Faculty means 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. 

Formal complaint means a document filed by a complainant or signed by the Title IX Coordinator alleging discrimination, discriminatory harassment, or retaliation, including sexual harassment or sexual misconduct against a respondent and requesting that the university investigate the allegations.

Good Faith Report means 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.”[1]

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 (5) members of the Faculty Hearing Committee.  For matters involving staff, the panel will consist of three (3) members of the university community selected by the Office of the Provost.

Investigator means the person or persons assigned to gather facts about an alleged violation of this Policy, assess relevance and credibility, synthesize the evidence, and compile this information into an investigation report.

Mandatory Reporter means a faculty or staff (including some student staff such as Resident Assistants, Teaching Assistants) of the university who is obligated by federal and state law to share knowledge, notice, and/or reports of sexual harassment, gender-based harassment, and sexual misconduct as defined in the Discrimination Policy or Sexual Misconduct Policy with the Title IX Coordinator.

Respondent means an individual who has been alleged to be in violation of university policy through conduct that could constitute discrimination, discriminatory harassment, or retaliation, including sexual harassment or sexual misconduct.

Report means information about alleged discrimination, discriminatory harassment, or retaliation, including sexual harassment or sexual misconduct affecting a member of the university community, including a student, that is conveyed to a mandatory reporter of the university and is communicated to the Title IX Coordinator.

Retaliation means any adverse action taken by a respondent or allied third party against a person because the person made a good faith report of discrimination or discriminatory harassment, including sexual harassment or sexual misconduct, or the person is involved in or participated in a formal complaint investigation or proceeding of such reported allegation under the Discrimination Policy or Sexual Misconduct Policy.  Retaliation includes, but is not limited to, threatening, intimidating, harassing, coercing or any other conduct that would deter a reasonable person from engaging in activity protected under university policies.

Staff means employees who are designated by Human Resources as executive, professional, professional faculty, operational, classified and non-student hourly employees and who do not hold an academic appointment in a program, school, or department.

Supportive measure means non-disciplinary, non-punitive, individualized service offered as appropriate, as reasonably available, and without fee or charge to the complainant or the respondent before or after making a report or filing of a formal complaint.   Examples of possible supportive measures include:

  • Issuing orders barring further communication between the complainant and the respondent (Campus No Communication Orders)
  • Providing an escort to ensure that a party may move safely between classes and activities
  • Making academic modifications, such as an extension for an assignment or late withdraw from a course
  • Relocating or rescheduling of classes or office location
  • Emergency Removal of a respondent from the university upon risk analysis and determination by the Review Team that the respondent poses an immediate threat to the physical health or safety of any student or other individual arising from allegations of sexual harassment or sexual misconduct. The risk assessment justifies removal on an emergency basis.  The respondent shall be provided with written notice of the emergency removal and an opportunity to challenge the decision to the Chief Human Resources Officer, which will be evaluated and reassessed within 24 hours of the challenge.

Title IX Coordinator means an official designated by the university who is responsible for ensuring the university’s compliance with Title IX regulations and the person who is responsible for coordination of this process for any investigation and adjudication of discrimination, discriminatory harassment, retaliation, sexual harassment, gender-based harassment, or sexual misconduct. 

IV.  Reporting Retaliation and Other Initial Matters

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.  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. 

  1. Reporting party Not the Complainant.  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 not have the rights and role of the complainant under this procedure; instead, the person who experienced the misconduct will be treated as the complainant, if he or she is willing to participate in the procedure. 
  2. Complainant 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 a formal complaint filed by the complainant.  The university must consider its obligation to the campus community and the Review Team will decide whether an investigation is required after evaluating the Risk Factors, as described in Section IV(A).  In such instances, the Title IX Coordinator will file a formal complaint for investigation.
  3. Complainant Not a Member of the William & Mary Community.  Visitors, guests, and other people who experience misconduct from a William & Mary faculty member or staff member that occurs in the context of their university employment may report using this procedure.  Certain modifications to this procedure, particularly those relating to notifications and disclosure to the complainant, will be made in such circumstances.

 B. How & Where to File a Report.  Reports may be made to the Office of Compliance & Equity either in person, in writing, by phone, or by email:

Pamela H. Mason, J.D., CCEP

Chief Compliance Officer/Title IX Coordinator

109 James Blair Hall

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 their performance evaluation was discriminatory based on their 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 or formal complaint 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. Except in matters under the Sexual Misconduct Policy, formal complaints must be submitted to the Compliance Officer within 365 calendar days of the most recent occurrence of the alleged misconduct.[9] 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 separate allegations and disciplinary action independent of the underlying allegations of misconduct.  See 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 criminal 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 a violation of university policy even if it is not a crime or if 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 supportive measures to protect the complainant and the university community, although the university will consider law enforcement requests to delay temporarily (generally ­no more than seven (14) days).

G. False Report or Deceitful Allegations. Knowingly making a false report and/or alleging accusations of misconduct that are deceitful is a violation of university Honor Code and is subject to appropriate disciplinary action.  Complaints made in good faith that are not in fact a policy violation or that are not substantiated to find responsibility for a policy violation are not consider false reports.

Knowingly providing false statements or evidence, purposefully tampering with or destroying evidence after being directed to preserve such evidence, or deliberately misleading any university administrator or official involved in this process is contrary to the university value of integrity and parties or witness who commit such violations are subject to appropriate disciplinary action.

V.  Initial Assessment of Report and Supportive Measures

A. Initial Assessment.  Upon receipt of a report, the Review Team will conduct an initial assessment.  The Review Team may conduct confidential, preliminary inquiry, not including interviews with parties, to verify enrollment or employment status, to help determine jurisdiction and/or the appropriate procedure under which to process the matter. 

 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 complainant’s filing of a formal complaint; 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 determines whether external reports[10]  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 complainant was unconscious, physically helpless or unaware that the misconduct was occurring;
  • Whether the complainant 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.

 B, Appropriate Course of Action.  The appropriate course of action may be:

  1. No further action under this procedure. No action under this procedure may be appropriate for formal complaints that do not allege conduct that violates applicable university policy, formal complaints for which there is insufficient information to initiate an investigation, or 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  formal complaints 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. 
  2. Remedial, but Non-Disciplinary Action. 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 supportive measures or modifications provided to the complainant, 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 Title IX Coordinator 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.[11]
  3. Further action under this procedure.  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 complainant 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 Review 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 complainant’s testimony.  If a determination is made to proceed with an investigation against the request of the complainant, the Compliance Officer will notify the complainant promptly.

C.  Dismissal or Referral of Formal Compliant.  If a complainant has filed a formal complaint requesting an investigation or disciplinary measures and the Review Team determines in its initial assessment not to conduct an investigation, the Compliance Officer will dismiss the formal complaint and notify the complaint promptly. 

1. Required Dismissal of Formal Compliant for Title IX Sexual Harassment. The university must dismiss a formal complaint or any allegations therein if, at any time during the process, it is determined that:

  • The conduct alleged in the formal complaint would not constitute sexual harassment as defined in the Sexual Misconduct Policy
  • The conduct alleged did not occur in the university’s education program or activity
  • The conduct alleged did not occur against a person in the United States, or
  • At the time of filing a formal complaint, a complainant is not participating in or attempting to participate in the education program or activity of the university.

Such dismissal does not preclude action under another provision of the university’s Discrimination Policy or Sexual Misconduct Policy. In the event that the formal complaint is dismissed under this provision, the Review Team shall determine if other action is appropriate under other university policies.  If other actions are deemed appropriate, the Review Team will authorize the continuance of this grievance process for the other policy provisions.

2. Formal Complaint for Discrimination, Discriminatory Harassment, Retaliation or Sexual Misconduct Authorized.  If a formal complaint alleges other forms of discrimination, discriminatory harassment, retaliation or sexual misconduct under the Discrimination Policy or Sexual Misconduct Policy that is not Title IX Sexual Harassment or if a formal complaint alleges conduct that did not occur in the university’s education program or activity, the conduct did not occur within the United States, or the complainant is not participating in or attempting to participate in the education program or activity of the university, the Review Team may authorize an investigation under this procedure if the university has jurisdiction as described in Section V(C) of this procedure.

3. Title IX Coordinator Files Formal Complaint. If the complainant has requested that there be no investigation or requested to remain anonymous or is not participating in the process, the Review Team will determine whether a formal complaint should be filed by the Title IX Coordinator under this procedure to protect the health and safety of the campus community and/or individual students, or to fulfill the university’s obligations to provide a campus environment free from harassment.  In making this determination, the Review 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 complainant’s testimony. If the Review Team determines to authorize an investigation against the request of the complainant, the Title IX Coordinator will file a formal complaint and will notify the complainant promptly.  A complainant is not required to participate in an investigation initiated when the Title IX Coordinator files a formal complaint on their behalf.

4. Discretionary Dismissal of Formal Complaints. If a complainant has filed a formal complaint of discrimination, discriminatory harassment, retaliation or sexual misconduct, and the Review Team has determined that the information available does not provide a reasonable basis for conducting an investigation under this procedure, that the university does not have jurisdiction over the respondent, or that this procedure is not applicable to the conduct alleged, the Title IX Coordinator will notify the complainant promptly. The Review Team may refer the report to another procedure if applicable.  Complainants may appeal this decision per Section X of this procedure.

B.  Supportive Measures.  The Title IX Coordinator, in consultation with the Review Team and the relevant Dean, supervisor, 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 complainant, 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.  Supportive measures may be adjusted in response to new or additional information, an updated risk assessment, or other developments, and a formal complaint is not required for the complainant to receive supportive measures.  

Examples include:

  • issuing a no-communication order;
  • transferring the complainant to another department;
  • modifying the work schedules of either party;
  • temporarily modifying supervisory relationships;
  • monitoring/increasing supervision of the complainant and respondent to ensure no retaliation; and/or
  • notifying William & Mary Police to address any safety/security concerns.

 In deciding on supportive measures, 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.

 C. Jurisdiction.  The university has jurisdiction to investigate and adjudicate alleged misconduct committed by a respondent when the conduct:

  • occurs on campus or on property owned or controlled by the university (university property);
  • occurs in the context of a university employment or educational program or activity including, but not limited to, university-sponsored study abroad, research, or internship programs;
  • uses university resources, such as workplace telephones or e-mail; or
  • occurs off-campus and outside a university program or activity, but such conduct has continuing adverse effects on or poses a substantial risk of creating a hostile environment for any member(s) of the campus community while on university property or in any university program or activity.

The Review Team will determine whether the university has jurisdiction and/or authority to conduct an investigation. Even if the university does not have jurisdiction to investigate a formal complaint, the university will take steps, when appropriate, to protect the complainant’s rights to participate in and enjoy the university’s programs and activities such as by providing supportive measures for the complainant and preventing recurrence of discrimination, discriminatory harassment, including sexual harassment, retaliation or sexual misconduct by the respondent.

VI.  General Procedural Considerations

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 and silent supporter may attend meetings, interviews and hearings to advise and support the party. 

  • 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.  
  • In a hearing that involves an allegation of Title IX Sexual Harassment as defined in the Sexual Misconduct Policy, the party’s advisor is permitted to directly ask the other party and any witnesses all relevant questions and follow-up questions, including questions that challenge the person’s credibility.

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 complainant’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 supportive 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 supportive 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 60-90 business days.  

All time periods measured in days, unless otherwise specified, are in business days.  To the extent a deadline is calculated in business days and falls on a university holiday or unscheduled 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 the filing of a formal complaint 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 with the intent 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 supportive 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, Zoom 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 Section IV (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 and may decide which evidence to exclude or consider. 

As a general matter, evidence of character or reputation is not relevant. 

  1. Sexual History, Character, and Reputation of the Complainant. In general, a complainant’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 complainant 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 complainant with other individuals is not relevant and will not be permitted, except to explain injury.
  2. 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. Complainant Withdrawal of Participation or Request to Halt Investigation or Adjudication Process.  Complainants 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 complainant’s participation.  

If a complainant 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 who are assigned with responsibilities relating to the initial review, investigation, determination or appeal 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. Faculty and staff are expected to comply with all parts of this procedure throughout the investigation and resolution process.

VII.  Investigation

This Section specifies the process used to investigate a formal complaint. The initiation of an investigation is a decision to collect evidence regarding a report; a respondent is presumed not responsible until a final determination is made.

A.    Written Notification.  The Title IX Coordinator issues to the respondent written notification of the allegations of discrimination, discriminatory harassment, retaliation or sexual misconduct potentially constituting a policy violation, including sufficient details known at the time and with sufficient time for a respondent to prepare a response before any initial interview with investigators. Complainants are provided a copy of the written notification.  Written notification shall contain at least:

  • the allegations to be investigated, including the specific policy provision(s) at issue, the identity of the complainant, and available information regarding the date and location of incident(s);
  • notice that allegations are subject to change based on information collected, but additional written notification must be provided if new policy violations are being investigated;
  • the process to be used (this procedure)
  • the parties’ rights to available resources, including counseling, health, mental health, visa and immigration assistance, financial aid assistance and other services available within the institution and in the community;
  • the right to choose an advisor of the party’s choice, who may be, but is not required to be an attorney, and a description of the role of the advisor in this process;
  • prohibition against retaliation of the other party or witnesses;
  • prohibition against knowingly making false statements or knowingly submitting false information during the grievance process under this procedure;
  • a presumption that no misconduct has occurred and a determination regarding responsibility of a policy violation is made at the conclusion of the grievance process;
  • the party’s right to provide a written response to the allegations prior to the start of the investigation process, including an interview with the investigator(s).
  • the party’s right not to incriminate themselves, as defined by the Student Code of Conduct, and for silence not to be held against them.

B.  Initial Meetings with Parties. The Title IX Coordinator or designee communicates separately with each of the parties prior to the commencement of the investigation. The purpose of the initial meeting is to review the process for formal complaint investigation and adjudication, to review the roles of the individuals involved in the process, and to provide the parties with information about preparing for meetings with investigators and submission of evidence to the investigation, including the importance of preserving evidence for investigators to evaluate.  Parties are not expected to provide statements, produce evidence, or respond to the allegations at this initial meeting.

C. Notification of Investigation. The Compliance Officer will notify the Provost’s Office and the Chair of the Faculty Hearing Committee (FHC), if applicable, for purposes of preparing for possible hearing.    The Compliance Officer provides a copy of the allegations to the Provost’s Office, and the FHC if applicable, but no other evidence is shared with Provost’s Office or the FHC until the point in this process where a hearing or appeal is initiated. 

D. Investigators; Investigation Process.

  1. Investigators. The investigators are objective, neutral parties responsible for the collection of evidence. All investigators receive training in investigation technique, relevant law, university policies and procedures, 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.  Investigators make reasonable efforts to update the plan to reflect significant changes.   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.  
  2. Interviews.  Investigators may conduct interviews of the parties and witnesses.   
    • Introduction of Evidence. Each party may introduce evidence during the investigation. Parties are not required to themselves uncover and produce evidence; if a party has cause to believe certain evidence exists, they should discuss the issue with an investigator.
    • Witnesses.  Parties may submit names of witnesses— people able to provide relevant information regarding the allegations—to be interviewed. 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, based on their professional judgement, which witnesses appear likely to offer relevant evidence.  Character witnesses and witnesses who are suggested because they could offer information relevant to items that are not disputed or that have already been sufficiently supported through the investigation may not be interviewed.  The need for prompt complaint resolution must also be considered. 
    • Questions for Other Party. Each party has the right to suggest issues to be explored with the other party, or questions to be asked. The investigators, exercising their professional judgment in accordance with Section V(M), determine which issues or questions are relevant and the appropriate investigative method for acquiring information.   Third parties other than an advisor and a silent supporter are not permitted to be present during interviews; interviews are attended by the interviewee and the investigator(s), and a note-taker (in the discretion of the investigator(s)). 
  1. Documentary Evidence. Collection and review of documentary evidence such as photographs, text messages, social media postings, medical records, emails or audio recordings, comparisons of timelines of events, visual evaluation of relevant locations and recording of observations through photographs or other means. Students and employees are required to produce any relevant records upon request.
  2. Expert Witnesses. Investigators may seek information from university officials or others with relevant scientific or other specialized knowledge, to help understand evidence, evaluate medical records, or determine a disputed issue.  Parties may provide or suggest an Expert Witnesses as well. 
  3. Credibility assessment. Investigators may assess the credibility of evidence provided by a party or witness based on consistency of statements, plausibility of statements made, and contrary evidence provided.  An investigator’s assessment that certain evidence lacks credibility is provided as information to assist the Determination Official in considering the relative weight and value of that evidence. 

D. Modification of Allegations. 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 supportive measures.

E. Evidence Review and Response by the Complainant and Respondent.  At the conclusion of the investigation and prior to the distribution of the investigation report, all parties and their advisors are permitted to review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint, including the evidence upon which the university does not intend to rely in reaching a determination regarding responsibility, and exculpatory evidence whether obtained from a party or other source, so that each party can meaningfully respond to the evidence prior to conclusion of the investigation.  Parties and advisors are provided simultaneous access to the information in electronic format.  Parties will have ten (10) business days to review and respond to the information provided by submitting any or all the following to the lead investigator:

  • written comments, corrections, or clarifications to any party or witness statement;
  • request for the university to rely on particular evidence for specific reasons that may not be evident in the information;
  • new information or evidence not already provided;
  • request for further investigation or evidence collection with regards to specific information (e.g. a specific witness not interviewed, or a specific detail not queried of a witness previously).

Any response provided by a party will be shared with the other party(ies).

F. Investigation Report. When the investigation is complete, the investigators will provide the Determination Official and the parties with an investigation report summarizing the investigation process and the relevant evidence collected, including the parties’ responses to the evidence.  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 process, i.e., the witnesses interviewed and evidence collected
  • include a timeline of events, if useful;
  • relevant records, such photographs and text messages, or summaries or redacted copies of such records, 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.
    • The investigation report may include evidence of impact of the alleged misconduct on the complainant, to the extent such evidence is relevant in determining whether the alleged misconduct occurred. 

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 parties will have ten (10) business days to review the investigation report prior to the determination conference or the issuance of an administrative determination.  Parties may provide a personal statement to be shared with the Determination Official not to exceed 3,000 words, including any relevant information about personal circumstances to be considered by the Determination Official.  Any personal statement provided by a party will be shared with the other party(ies) prior to the determination conference or issuance of an administrative determination.  Parties must submit personal statements to the Title IX Coordinator eight (8) business days after receipt of the investigation report.

VIII. Standard of Review; Administrative Resolution; Determination Hearing

Upon completion of the investigation, the Determination Official and the parties review the investigation report; the Determination Official may request additional investigation or clarification of items in the report and the parties may provide responses.  The Determination Official resolves the matter administratively (subject to specified conditions), and/or determines whether and which allegations proceed to hearing.  

A.  Standard of Review. The Determination Official or in the event of a Hearing, the respective hearing committee, is responsible for issuing a determination of whether there was a policy violation established by the preponderance of the evidence.  Preponderance of the evidence means that it is more likely than not that the alleged conduct occurred.

B. Administrative Resolution. The Determination Official 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 Determination Official. Either party may appeal the resolution under Section X, specifying the bases for appeal, with the appellate officer within five (5) business days of notification of the resolution.
  • A resolution that includes a major sanction for a faculty or staff member may be made with the consent of both parties who have five (5) business days to provide that consent, provided that each party’s consent is limited to those elements of the major sanction directly relating to themselves. This resolution is non-appealable.

In all cases of administrative resolution, each party is notified of the resolution, the rationale and any sanction; the complainant is also notified of any remedies offered to them.  See Section X(B) for guidance regarding sanctions and remedies.      

The Determination Official will strive to conclude any administrative resolution promptly and within the timeline provided in this procedure.      

C. Authorization of Determination Hearing. If the matter is not administratively resolved, the Determination Official determines whether and for which allegations a hearing is warranted. For one or more allegation of Title IX Sexual Harassment under the Sexual Misconduct Policy, a hearing is required and shall be conducted in compliance with required federal regulations.  Either party may appeal the decision as provided in Section X.

IX.  Hearing, Sanctions & Remedies

The hearing is a process by which the university decides whether misconduct has occurred and/or whether the complainant’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 Determination Official 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 appeal the decision regarding whether and which allegation(s) proceed to hearing. Such appeal must be made within 72 hours of the Determination Official’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 Determination Official’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 Determination Official’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, such as availability of an FHC member, are made as necessary to establish a five-person hearing panel.
  • In matters involving staff members, the Hearing Panel members with a conflict of interest or bias are excused and other eliminations made as necessary to establish a three-person hearing panel.
  • The hearing panel members review the investigation report.
  • The hearing panel selects a Chair, 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 Determination Official.   The parties will be given at least ten 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. 
B. 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.
  • 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.
  • In a hearing that involves an allegation of Title IX Sexual Harassment as defined in the Sexual Misconduct Policy, the party’s advisor is permitted to directly ask the other party and any witnesses all relevant questions and follow-up questions, including questions that challenge the person’s credibility.
  • 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 video conference from a nearby location. 
  • The parties may not question each other directly. In hearings not involving an allegation of Title IX Sexual Harassment, a party may submit questions to be explored at hearing by the Hearing Panel.
  • 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.
  • The hearing will be recorded via Zoom or other video conference technology and a will be made available for the parties to view without costs, upon request.

C. Deliberation and Determination. The panel determines whether the complainant’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 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.[12]  This notification is communicated to the Provost and the parties within two (2) days of the hearing. 

 D. Sanctions and Remediation Imposed. The Provost’s role is to determine the sanction, if applicable, and any remedies provided to the complainant or remedies imposed to prevent risk of a hostile environment from developing.  The Provost reviews the panel’s determination and any sanction recommendations, if applicable. 

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 complainant 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 complainant, 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 options, sanctions, and rationale, as permitted by law; the complainant is notified of remedies offered to them.[13]

X.  Appeals

 A. Decisions available for Appeal. 

  1. Dismissal of a Formal Complaint. A complainant may appeal to the appellate officer any determination to dismiss under Section V(A)(4) of this procedure.
  2. Determination Official Decision. Either party may appeal the Determination Official’s administrative determination or sanction under Section VIII (B), and either party may appeal the Determination Official’s to refer a determination of any/all allegations to a Hearing Panel under Section VIII (C).
  3. Hearing Panel Determination. Either party may appeal the determination of the panel to the appellate officer. 
  4. Appeal of Provost Sanction.  Either party may appeal the sanction imposed by Provost. 
B.     Appeal Grounds and Outcomes. Appeals for any of the above reasons must be based on the following grounds:
  1. Material procedural error. The appeal must specify the procedural provision that was violated and the impact of this violation; procedural or technical deviations that do not affect the outcome of the determination will not be sufficient to sustain an appeal.  Examples of procedural errors that may be sufficient to sustain an appeal include failure to provide a party with an opportunity to review all evidence, including exculpatory evidence collected, failure to provide a party to respond to the investigation report (violation of Section VII(F)) or inclusion of polygraph results as evidence (violation of Section V(M)). If the appellate officer grants an appeal on the basis of procedural irregularity, they typically will remand the matter to remedy the irregularity, if appropriate. 
  2. The decision is inconsistent with the weight of the evidence. In reviewing an appeal based on this ground, the appellate officer does not replace the Determination Official’s judgment with their own; they review the matter to determine whether the evidence presented appears sufficient to support a determination based on the preponderance of the evidence standard.  If the appellate officer grants an appeal on this basis, they may modify the determination or may order further investigation. 
  3. New material evidence that (a) is not merely corroborative or repetitive and (b) was previously unknown or unavailable to the party and pertinent to the case that affected the outcome of the determination. The appealing party must provide an explanation as to why the evidence was unknown or unavailable.  If the appellate officer grants an appeal on this basis, they typically will remand the matter to the Determination Official for additional investigation or consideration. 
  4. Bias.  The Title IX Coordinator, investigator(s), or Determination Official had a conflict of interest or bias for or against complainants or respondents generally or the individual complainant or respondent that affected the outcome of the matter. The appealing party must provide details or examples of why the individual had a conflict of interest or bias that affected the outcome of the determination.  If the appellate officer grants an appeal on this basis, they typically will remand the matter to the Title IX Coordinator for reassignment to a different investigator or Determination Official. If the appellate officer determines that the Title IX Coordinator was found to have a conflict of interest or bias that affected the outcome of the case, the case will be reviewed by the Provost to determine if the matter should be dismissed entirely or can be remedied for a fair and equitable outcome with another university administrator serving as the Title IX Coordinator.  
C.  Appellate Officer Determination.  The appellate officer’s determination may be:
  1. There is insufficient basis to grant the appeal. The decision to dismiss a formal complaint, the decision to refer one or more allegations to a Hearing, or Determination Official’s or Panel’s determination stands.
  2. Substantial procedural error or Bias occurred that denied a party a fair process. The appellate officer may direct relief or may order a new investigation, a new hearing, or a new deliberation. 
  3. The panel’s determination was not supported by the evidence.  The appellate officer reviews the determination for clear error, including error in evaluation of the evidence. The appellate officer may modify the determination or may order a new hearing or re-submit the matter to the panel to conduct a new deliberation.   

XI.  Annual Reporting

The Provost will report annually to the Faculty Assembly an anonymized account of the preceding year’s cases involving faculty under this procedure.

XII.  Approval, Amendment and Interpretation 

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. 

Internal policies must comply with applicable law and no internal governance process (including those under the Faculty Handbook) should be understood to abrogate applicable state and federal law.

This procedure was approved as an interim procedure per the Creating and Maintaining Whole University Policies & Procedures by the President effective August 14, 2020, to comply with Department of Education amendments to part 106 of title 34 of the Code of Federal Regulations and to Code of Virginia Amendments to §23.1-900.

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. 

XIII.  Related Policies, Procedures, and Other Documents

Appendix A: Reporting Options and Resources
Appendix B: Sanctions
Faculty Handbook (pdf)
Discrimination, Harassment, and Retaliation Policy
Policy ProhibitingSexual Harassment, Gender-Based Harassment and Retaliation

Creating and Maintaining Whole University Policies & Procedures

 [1] 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.   

[2] Title IX, 20 U.S.C. 1681-1688, prohibits discrimination on the basis of sex, including sexual violence and other forms of sexual harassment. 

[3] 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). 

[4] 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. 

[5] The ADEA, 29 U.S.C. 621 et seq., prohibits employment discrimination against people 40 and older. 

[6] 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. 

[7] 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.

[8]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.  

[9] This procedure is not intended to i mpair 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.

[10] 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. 

[11] See Appendix A for information about mediation resources. 

[12] 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. 

[13] Federal and state law and policies may restrict or, alternatively, require what information is provided to the parties, depending on the identity of the parties, the nature of the adjudication violation, the outcome of the adjudication, and the nature of any sanctions or remedies.