Discrimination & Harassment

What is discrimination?

When someone is treated differently or less favorably because of their belonging to a protected class, that may be discrimination. There are various forms of discrimination.

What are protected classes?

Federal protected classes include race, color, national origin, religion, sex (including sexual orientation), age, disability, veteran status, genetic information, and citizenship.

What forms can discrimination take?

Disparate Treatment Discrimination

A person who is a member of a protected class is treated differently in an employment or academic decision from similarly situated employees or students not in the protected class. In the absence of comparative evidence, if there is other evidence that the action's were motivated by discrimination or there is direct evidence of discriminatory intent, then disparate treatment discrimination may exist. 

Examples include:

• A supervisor assigns a larger workload to Black employees than to White employees.
• A professor grades students with disability accommodations more harshly than other students.
• A university administrator allows administrative leave for a Jewish employee to attend religious services, but requires an employee who is Muslim to submit annual leave.
• A candidate for an administrative position is no longer under consideration because of the candidate’s caretaker responsibilities.
• An instructor calls only on male students, and when a female student raises their hand to answer a question, the instructor dismisses them or says how pretty their outfit is.

Disparate Impact Discrimination

This type of discrimination occurs when a policy or practice of the university results in members of a protected class being treated less favorably than members outside the protected class even though the discrimination was not intentional. The practice appears neutral on its face, but it has a significant consequences to those of the protected group. If the university can show there is a valid job- or academic-related reason for implementing the practice, then it has to be shown that there are other practices that serve the objective without being discriminatory to be considered disparate impact discrimination.

• Personnel tests that do not have substantial relation to job qualifications--impact is that it screens out minorities or women.
• Policy that single parents are only assigned to a standard work shift (8:00am - 5:00 pm) -- impact that is disproportionate to men because women make up a majority of single parents.
• Practice that requires to students to remove any hats or head covering during exams to prevent cheating-- impact on Muslim women or Sikh men or women.
• Policy that requires employees or students of the same gender to share a room on school related travel for cost saving purposes - impacts employee or student who has a disability that necessitates a private room or a person who has a gender identity that is different than their biological gender.

Harassment

Discriminatory harassment is a form of discrimination, and so violates William & Mary policy when it becomes severe or pervasive under Title VI or VII, or is severe, pervasive and objectively offensive under TItle IX.  

The university defines discriminatory harassment as unwelcome conduct, based on a protected class, that has the purpose or effect of unreasonably interfering with a person's work or educational performance or participation in a university program or activity, or is sufficiently severe/pervasive to create an intimidating, hostile, or offensive work or educational environment. Often, harassment takes the form of words and actions that create a hostile or offensive  work or educational environment.  

In order for harassment to be a violation of university policy, it must be based on a protected class. If a hostile environment exists for some other reason, such as personality conflicts or management style, that would be a matter for University Human Resources to work with the supervisor, Dean or Provost in the employment realm, or for the Dean of Students Office to address through conflict resolution or disciplinary processes.

Sexual Harassment, including Sexual Assault and other Sexual Misconduct

Sexual harassment can occur in the form of a hostile or offensive environment when words or actions of a sexual nature are unwelcome and are severe, pervasive and objectively offensive. Sexual harassment also occurs in a form unique to sexual harassment, commonly called "quid pro quo" harassment. Quid pro quo is Latin for "this for that" and is defined as the conditioning the provision of an aid, benefit or service of the university on an individual's participation in unwelcome sexual conduct.

The university's Policy Prohibiting Title IX Sexual Harassment and Gender Based Harassment defines the different forms of sexual misconduct and establishes the jurisdiction in which the misconduct occurs.  Sexual assault, domestic violence, dating violence, or stalking that occurs outside of the university's Title IX jurisdiction, as well as other forms of sexual misconduct are prohibited under the Policy Prohibiting Discrimination, Harassment, Retaliation and Sexual Misconduct.

Here are some examples of what may constitute sexual harassment either under Title IX or under university policy:

• A student receives a poor grade for failing to submit to a teaching assistant's demands for sexual favors 
• Sexual innuendo renders a classroom discussion  hostile that students are unable to focus on the discussion and students skip class regularly
• Residents of a dormitory repeat sexually graphic jokes and taunt members of the opposite sex in the common areas that make residents avoid the area
• Student sends naked photos and videos of himself to another student without permission.

Retaliation

Retaliation is another form of prohibited discrimination. Retaliation is any adverse action taken against a person  for opposing discrimination (including harassment) or complaining of conduct reasonably believed to constitute discrimination or otherwise participating, in good faith, in a discrimination complaint or investigation. Prohibited retaliation can take many forms, including:

• A supervisor bullying an employee who filed a discrimination complaint against the supervisor
• Members of a department isolating or ridiculing a colleague because she initiated a sexual harassment investigation against a member of the department
• A fraternity or other student group posting flyers across campus accusing a student who filed a sexual assault charge against a member of the fraternity/group of lying, referring to the accusing student by name
• A department head excluding a professor from department meetings because the professor filed a complaint of salary discrimination based on her gender
• A supervisor refusing to provide a recommendation for an employee with a good performance record after the employee filed an equal pay act lawsuit against the university
• A program director refusing to speak to a student participating in the program because the student alleges that the university engaged in racial discrimination by failing to provide the student with scholarship funding to participate in the program
• A supervisor giving an employee an unjustified poor performance evaluation, after being required (against his wishes) to allow her to flex her schedule to accommodate her disability
• A supervisor giving an employee a negative performance evaluation because the employee’s wife filed an age discrimination claim against the university.

What is a Reasonable Accommodation and when is it required?

There are two types of protected traits or characteristics that universities are required to accommodate -- to make reasonable modification or alterations to practices or work or educational conditions. These are (1) disability and (2) religious beliefs and practices.  

Disability Accommodations

People with disabilities are entitled to accommodations under William & Mary's Employee Reasonable Accommodation Policy and Procedure and Student Disability Accommodation Policy and Procedure.

Religious Accommodations

Employees and students are entitled to have their religious beliefs and practices accommodated, unless accommodation would create an undue burden. Examples of accommodations include allowing employees to schedule breaks to accommodate prayer times and modifying standards of dress

What is the Student Age Discrimination Act?

The Age Discrimination Act of 1975 prohibits the university from discriminating against students based on their age. The law applies to all William & Mary educational programs and activities. Unlike the Age Discrimination in Employment Act, the Age Discrimination Act protects all students, not just older students.  In fact, there is no age cut-off or limit in the Age Discrimination Act.  

William & Mary's Chief Compliance Officer is responsible for coordinating efforts to comply with the law and the Civil Rights Review Team assesses complaints of age discrimination according to the university's applicable complaint procedure. The Office of Civil Rights of the U.S. Department of Education enforces the Age Discrimination Act and provides information about the law.