Recognizing and Understanding the Risks of Prohibited Discrimination, Harassment, and Retaliation

1. Recognizing and Understanding the Risks of Prohibited Discrimination, Harassment, and Retaliation A Few Basics

2. Prohibited Discrimination and Harassment – What Is It? • Unwelcome conduct based on a protected category (under law or W&L policy) that is a term or condition of employment or participation in education programs.

3. “Unwelcome” • To be "unwelcome" the conduct must not be solicited or invited, and the complainant must have regarded the conduct as undesirable or offensive. • Voluntary participation/lack of coercion is not dispositive; neither is a contemporaneous complaint or protest necessary.

4. What Categories Are Protected by Law or W&L Policy? • Federal and Virginia law prohibit harassment or other discrimination on the basis of any of the following categories: sex, race, national or ethnic origin, religion, disability, age, and veteran’s status. • Washington and Lee University has gone beyond the legally mandated protected categories to include sexual orientation in its prohibited discrimination and harassment policy.

5. What Type of Conduct is Sex-Based Conduct? • Conduct of a sexual nature (sexual advances, request for sexual favors, and other visual, verbal, or physical conduct of a sexual nature); OR • Conduct directed toward an individual because of that individual's sex (e.g., gender humiliation).

6. What about Same-Sex Conduct? • Harassing conduct can be, but need not be, motivated by sexual desire to support an inference of discrimination "on the basis of sex.“ • E.g., female victim being harassed in such sex-specific and derogatory terms by another woman to make it clear that the harasser had a general hostility to women in the workplace. • Same-sex cases require careful consideration of the social context in which the behavior occurred.

7. Conduct That Could Be Sexual Harassment If Unwelcome: • Lewd remarks or whistlesPersistent physical contact/romantic pursuitHumor or insult of a sexual natureObscene messages and sexual discussionsRating sexual attributes and attractivenessSexually suggestive gesturesSexual misuse or abuse of powerSubtle or overt pressure for sexual favorsDeliberate gender humiliation or intimidationStalkingSexual assault

8. “Term or Condition” of Employment or Education • In this first step of a liability analysis, whether prohibited discrimination or harassment took place, two forms of judicially recognized harassment are relevant.

9. Quid Pro Quo Harassment • Involves submission to the unwelcome conduct as an expressed or implied condition for receiving an academic or employment benefit or evidence that refusal to submit to such unwelcome conduct resulted in a tangible academic or employment detriment (not simply threat of detriment). • E.g., impact on grades or graduation, hiring, firing, promotion, compensation, or reassignment to a substantially different, inferior position. • Primarily sexual harassment cases.

10. Hostile Environment Harassment • Situation presented when unwelcome conduct unreasonably interferes with an individual's academic or work performance or creates an intimidating or hostile academic or work environment, even without tangible or economic consequences. • The critical inquiry in a hostile environment case is whether the conduct was sufficiently "severe or pervasive" to create an abusive academic or work environment.

11. Look at the Totality of Circumstances • Relevant Factors: Age and relationship of parties Location of conduct Frequency/severity/duration of conduct Nature and context of incident(s) Verbal or physical threats involved Trivial or patently offensive comments? Number of individuals involved Specific impact on work/education Relationship of subject matter to course (if classroom conduct)

12. Severe and Pervasive Standard • Unless conduct is egregious, a single or isolated incident of offensive conduct generally does not create a hostile environment. Generally requires a pattern of offensive conduct. Federal law does not attempt to purge the work or academic environment of all offensive language or conduct. • In contrast, in quid pro quo cases, a single incident will constitute harassment if it is linked to the granting or denial of academic or employment benefits.

13. Two-Part Viewpoint Test • Consider the perspective of the complainant and the perspective of a reasonable person. Would a reasonable person in the complainant's position have felt harassed and did the complainant feel harassed? • Psychological injury not required.

14. Some Harassment Myths • Harassment requires a bad intent on the part of the harasser. • If parties have been involved consensually, subsequent conduct cannot be considered sexual harassment. • Liability is limited to conduct by supervisors and managers, not visitor or student-to-student harassment, because the University cannot control those relationships.

15. Prohibited Retaliation – What Is It? • Retaliation in any form against a complainant, witness, or other participant in a complaint process. • Examples could include threats, intimidation, lowered grades or evaluations, demotion, discharge. • Retaliation is a separate policy violation and will be disciplined separately.

16. Prohibited Retaliation – Who can be in violation? • Individuals • Groups and organizations

17. How Serious is the Legal Risk? • Potential for significant damages to the University under civil rights laws for employee or student discrimination, harassment, or retaliation, including compensatory and punitive damages. Potential for numerous state law damages claims, as well, against university and individual harasser. • As CAIR resources and designated officers, you can act to minimize this risk to the University.

18. When Is University Liable for Discrimination/Harassment? • Harassment of a student by another student: University liable if officials actually knew of severe and pervasive harassment but were deliberately indifferent to it. • Precisely what type of official must have knowledge in order to trigger liability is in question. Knowledge by faculty, staff, or administrators with significant responsibility for student affairs, or by CAIR resources or designated officers, likely would trigger liability if deliberately indifferent.

19. Harassment of a student by faculty or other university employee: University liable if an official with authority to address and correct the alleged harassment actually knew of the situation, failed to respond to it, and showed deliberate indifference. • At W&L, this certainly would include all designated officers, and other high-level administrators and department heads. It could also include CAIR resources and student activity supervisors and advisors.

20. Harassment of an employee by a co-worker, student, or other third party: University liable if officials knew or should have known of the harassment and did not take prompt and reasonable action to end it.

21. Harassment of an employee (including student workers) by a supervisor: University absolutely liable if harassing supervisor takes tangible employment action against harassed employee. • University will be liable even without knowledge or a tangible employment action unless it can show that: (1) University used reasonable care to prevent and promptly correct the harassment; and (2) employee did not act reasonably to prevent harassment and to seek help through University’s preventive and remedial policy and procedures.

22. Can Harasser be Individually Liable? • Even though the federal courts have ruled that individual harassers are not individually liable for their harassment under the relevant federal laws, these individuals remain subject to potential individual liability under state law (e.g., assault, battery, infliction of emotional distress, etc.) in each of the above scenarios.

23. Some “Do’s” • Follow the policy and procedures. • Encourage reporting of perceived harassment! If a complainant decides not to pursue a complaint, document acknowledgement that complainant was advised of procedures available. • Take all complaints seriously and handle promptly. • Make a careful and thorough record, in consultation with Head CAIR and General Counsel. • Communicate on a limited “need-to-know” basis. • Follow up to be sure harassment has stopped and that there is no retaliation.

24. Some “Don’ts” • Don't adopt a "don't ask, don't tell" policy. • Don't suggest complainants “just ignore it.“ • Don’t delay once aware of a problem. • Don’t make quick judgments or act biased. • Don’t breach appropriate confidentiality. • Don’t hesitate to assess credibility. • Don’t assume “it couldn’t happen at W&L.”