Office of General Counsel

Washington and Lee University -- 2007-2008

 

RECOGNIZING PROHIBITED DISCRIMINATION, INCLUDING SEXUAL HARASSMENT

 

W&L’s policy prohibits: (1) discrimination, including harassment, based on all protected categories in our nondiscrimination statement (sex, sexual orientation, national or ethnic origin, color, age, religion, disability, or veteran's status); (2) retaliation against anyone involved with a complaint; and (3) maliciously filing a false complaint.

 

WHAT ARE WE TALKING ABOUT IN THIS POLICY?

  • Unwelcome conduct (not solicited and undesirable or offensive) that is
  • Directed toward a person because of that person’s protected category, including race, gender, national or ethnic origin, age, religion, disability, veteran’s status, or sexual orientation.

 

Examples of behaviors that may be harassment or other discrimination if unwelcome, looking at all

relevant factors:                                                                                                                                                                                                                                                                                                                                                                  Factors:

  • Persistent physical contact (touching, hugging, brushing against)                           ●  Duration
  • Persistent romantic attention (asking for dates)                                                             ●  Frequency
  • Sexually suggestive visual displays (calendars, drawings, photographs)                 ●  Severity
  • Humor or insult of a racial or ethnic nature                                                                     ●  Physical//Verbal
  • Obscene messages (voice mail, e-mail, written)                                                              ●  Context
  • Discussions of sexual matters                                                                                           ●  Relationship
  • Discussion of or rating sexual attributes and attractiveness
  • Making fun of someone’s disability or religious practices
  • Sexually suggestive gestures or body language
  • Sexual misuse or abuse of power
  • Subtle or overt pressure for sexual favors
  • Deliberate humiliation or intimidation based on sexual orientation

 

WHEN IS UNWELCOME CONDUCT ON THE BASIS OF A PROTECTED CATEGORY A VIOLATION OF THIS POLICY?

 

When submitting to or rejecting that unwelcome conduct has a tangible academic or employment impact; for example, when a faculty member extracts sexual favors from a student in return for a good grade or positive reference, or when a supervisor gives an employee a negative performance evaluation after the employee rejects his or her sexual advances.   OR

 

When that unwelcome conduct unreasonably interferes with a person’s academic or work performance or creates an intimidating or hostile academic or work environment.    Was the conduct a single or isolated incident, or was it severe and pervasive? Generally, a policy violation involves a showing of a pattern of offensive conduct. Two-part viewpoint test:  would a reasonable person in the complainant's position have felt harassed on the basis of a protected category and did the complainant feel harassed?

 

Even if the conduct does not constitute a violation of this policy, it may be uncivil, unprofessional, or inappropriate conduct under the circumstances.  Not all unwelcome conduct amounts to prohibited discrimination or harassment under this policy, but the University is committed to addressing inappropriate workplace conduct.  You may bring any such concerns to your supervisor or the Administration.

 

SOME MYTHS ABOUT HARASSMENT

1.                  Conduct must be sexual to constitute sexual harassment.

 

2.                  “Unwelcome” means “by force” or “coerced.”

 

3.                  Harassment requires bad intent on the part of the harasser.

 

4.                  If parties have previously been in a welcome sexual relationship, subsequent conduct between them may not give rise to sexual harassment.

 

5.                  The University can only be responsible for actions of supervisors and administrators.

 

6.                  There is no individual liability for prohibited harassment.

 

7.         Prohibited retaliation involves only formal employment/academic actions.

           

 

FACULTY/ADMINISTRATORS/SUPERVISORS/DORM COUNSELORS/RESIDENT ASSISTANTS:  HOW TO HANDLE POTENTIAL ISSUES.

 

·                     Review and be aware of the University’s policy and procedures on discrimination,  harassment, retaliation, and malicious reporting and encourage reporting of perceived misconduct.

·                     Inquire into conduct that could be a violation of the University’s policies.  You could be in the most important position to recognize inappropriate conduct and help stop it before it amounts to harassment, discrimination or retaliation.

·                     Address problem attitudes and behavior informally and follow up to be sure that conduct has stopped.  If not, encourage use of more formal complaint procedure.

·                     Communicate only on a "need-to-know" basis, but make the appropriate designated officer and/or legal counsel aware of potentially serious or recurrent situations.

·                     Assure complainants that the University does not permit retaliation or reprisal for the bringing of a complaint.  Retaliation or malicious reporting is a separate policy violation and will be disciplined.

·                     Explain that, though the individual may not want to pursue a complaint, or may want absolute anonymity, the University may have an obligation to investigate misconduct in order to protect all members of the campus community.

·                     Assure a complainant that, when necessary, interim actions will be taken pending the outcome of an internal investigation (to separate the parties, etc.)

 

HOW SHOULD YOU NOT RESPOND TO THESE ISSUES? -- SOME "DON'TS"

 

·            Don't adopt a "don't ask, don't tell"  or “I don’t want to get involved” policy.

·            Don't suggest that complainants "need to learn to handle these things...just ignore it."

·            Don't share information beyond those who need to know.

·            Don't fail to act promptly once you become aware of a problem, or after you should have known, even if no one has complained.

 

POLICY AND RESOURCES:            http://counsel.wlu.edu/policy/