Authority: Issued by the Chancellor. Changes or exceptions to administrative regulations issued by the Chancellor may only be made by the Chancellor.
History: First Issued: August 30, 1999. Last Revised: August 11, 2020, with an Effective Date of August 14, 2020.
NCSU POL04.25.05 – Equal Opportunity, Non-Discrimination and Affirmative Action Policy
NCSU POL05.25.01 – Faculty Grievance and Non-Reappointment Review Policy
NCSU POL11.35.01 – Code of Student Conduct
NCSU POL 04.25.07 – Title IX Sexual Harassment Policy
NCSU POL05.25.03 — Review and Appeal Processes for EHRA Non-Faculty Employees
NCSU REG11.35.02 — Student Discipline Procedures
NCSU REG04.25.06 – Discrimination and Harassment Prevention and Response Training
NCSU REG11.35.04 – Written Student Complaint
UNC System SHRA Employee Grievance Policy
Contact Info: Vice Provost for Institutional Equity and Diversity (919) 515-4559
This regulation serves as a companion to NCSU POL 04.25.05 (Equal Opportunity, Non-Discrimination and Affirmative Action Policy) to outline the specific procedures relating to the Discrimination, Harassment, and Retaliation complaint resolution processes at North Carolina State University (NC State or the university). Allegations of sexual harassment as defined under Title IX are addressed in the Title IX Sexual Harassment Policy (NCSU POL 04.25.07).
2.1 “Complainant” means a person to whom the alleged Discrimination, Harassment, or Retaliation was directed.
2.2 “Complaint Resolution Process” means NC State’s procedures for resolving Reports of Discrimination, Harassment, or Retaliation and includes the filing of a Report, preliminary review of the Report, investigation, and appeals, if any.
2.3 “Consent” means an affirmative decision to engage in an activity given by clear action or words. It is an informed decision made freely, willingly, and actively by all parties. Behavior will be considered “without consent” if no clear consent, verbal or nonverbal, is given. Consent cannot be procured by physical force, threats, intimidating behavior, or coercion. A person cannot give consent if they are incapacitated as a result of alcohol or drug consumption (voluntary or otherwise), unconscious, unaware or asleep during the act, under the legal age to provide consent, or otherwise lack the capacity to consent. In determining whether a person is incapacitated, the analysis must include whether the Respondent knew or should reasonably have known that the person was incapacitated. Neither silence nor a lack of protest or resistance is a valid form of consent. Consent can be revoked or withdrawn at any time, even during a sexual act. If consent is withdrawn, the act is no longer consensual.
2.4“Day” means calendar days. If the day to take an action lands on a Saturday, Sunday, or day that the University is closed (such as a holiday), the deadline shall fall on the next business day.
2.5 “Discrimination, Harassment, or Retaliation” is defined in NC State POL 04.25.05, Equal Opportunity, Non-Discrimination and Affirmative Action Policy.
2.6 “Office for Institutional Equity and Diversity” or “OIED” is the office on campus responsible for investigating allegations of Discrimination, Harassment, or Retaliation. The OIED is located at 231 Winslow Hall, 40 Pullen Drive, Raleigh NC 27607 and has a mailing address of Campus Box 7530, NC State University, Raleigh, NC 27695-7530.
2.7 “Parties” is a collective term used to describe both Complainant(s) and Respondent(s) named in a Formal Complaint of Discrimination, Harassment, or Retaliation. “Party” is an individual term used to describe either a Complainant or Respondent named in a Report of Discrimination, Harassment, or Retaliation.
2.8 “Report” means a disclosure of information to the OIED that includes allegations that may be covered by the Equal Opportunity, Non-Discrimination and Affirmative Action Policy. An EEO Informal Inquiry submitted by an employee covered by the State Human Resources Act (SHRA) (see section 5.1.3) will be treated as a Report.
2.9 “Respondent” means a person who has been reported to have engaged in conduct that could constitute Discrimination, Harassment, or Retaliation.
2.10“University Grievance Procedure” For purposes of this regulation, “university grievance procedure” includes NCSU POL 05.25.01 (Faculty Grievance and Non-Reappointment Review Policy) and NCSU POL 05.25.03 (Review and Appeal Processes for EHRA Non-Faculty Employees). See section 5.1.5 relating to the SHRA Employee Grievance Policy.
3. UNIVERSITY’S RESPONSE TO DISCRIMINATION, HARASSMENT, OR RETALIATION
3.1 When a Report is filed, NC State will follow its Discrimination, Harassment, or Retaliation Complaint Resolution Process and procedures, which are described in this regulation, and will:
- treat Complainants and Respondents equitably;
- presume that the Respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the Discrimination, Harassment, or Retaliation Complaint Resolution Process;
- use the preponderance of evidence (“more likely than not”) standard to determine whether there is a violation of NCSU POL 04.25.05 (Equal Opportunity, Non-Discrimination and Affirmative Action Policy);
- provide an objective evaluation of relevant evidence and not base any credibility decisions on a person’s status as a Complainant or Respondent;
- not consider the Complainant’s past sexual history in determining whether a sexual harassment policy violation occurred.
3.2 The university may investigate allegations of Discrimination, Harassment or Retaliation that are likely to have a substantial adverse effect on, or pose a risk of harm to, NC State or any member of the University community even when, for example:
- an individual shares a concern involving possible Discrimination, Harassment, or Retaliation, but does not wish to file a Report;
- an individual reports a concern involving possible Discrimination, Harassment, or Retaliation and asks that either their identity or the information provided be kept confidential; or
- an individual anonymously reports possible discrimination, harassment, or retaliation and the report includes sufficient specificity to allow the university to investigate the report.
4.1 Allegations of Discrimination, Harassment, or Retaliation will be handled in a manner that balances an individual’s preferences regarding confidentiality with the university’s legal obligations. Complete confidentiality cannot be guaranteed, and information about Discrimination, Harassment and Retaliation allegations may be shared with others when the university determines such sharing is necessary to investigate or address the prohibited conduct or to prevent its recurrence. If an individual requests complete confidentiality and/or asks that the university not investigate or seek action against a Respondent, such request may limit the university’s ability to respond fully to the complaint, including pursuing any disciplinary action against the Respondent. The university ultimately determines whether it can honor such a request while providing a safe and nondiscriminatory environment for the university community. Such determination shall be made by the OIED, in consultation with other campus units as needed.
4.2 Individuals bringing forth allegations who request complete confidentiality are strongly encouraged to consult with individuals, who by law are designated as confidential resources, such as mental health counselors, physicians, clergy or private attorneys.
4.3 In an effort to protect privacy as well as the integrity of the Complaint Resolution Process, Complainants, Respondents, witnesses and any other individuals who may have information about a Report are expected to maintain confidentiality to the extent permitted by law.
5. FILING OF A DISCRIMINATION, HARASSMENT, OR RETALIATION REPORT
5.1 Filing a Report.
5.1.1 Any person may make a Report at any time, including during non-business hours, regarding Discrimination, Harassment, or Retaliation (whether or not the person reporting is the person impacted by the alleged conduct) through any of the following means:
- In person by speaking to the Vice Provost for Institutional Equity and Diversity, or to any of the EOE investigators (whose offices are located in the OIED);
- By delivering, mailing, or otherwise transmitting a Report to the OIED;
- By calling the OIED at (919) 513-0574;
- By emailing the report to email@example.com;
- By completing the OIED online Discrimination, Harassment, and Retaliation Report Form; or
- Through any other means that results in the Vice Provost for Institutional Equity and Diversity receiving the person’s verbal or written Report.
5.1.2 Upon receiving a Report containing allegations of Discrimination, Harassment, or Retaliation, the OIED will promptly contact the Complainant to provide resources and explain the Complaint Resolution Process.
5.1.3 Reports of Discrimination, Harassment, and Retaliation should be submitted within 180 days of the alleged action. Allegations of Discrimination, Harassment, or Retaliation that are submitted after 180 days when reported to the OIED will be reviewed, investigated as appropriate, and addressed through corrective action (if applicable). However, the OIED is not required to follow the Complaint Resolution Process and has greater flexibility in handling and resolving these types of allegations.
5.1.4 Referral of Reports (through a University Grievance Procedure or Written Student Complaint) to the OIED.
Allegations of Discrimination, Harassment, or Retaliation, not previously filed directly with the OIED and that are included in a grievance filed pursuant to a University Grievance Procedure or a Written Student Complaint, will be referred to the OIED as a Report for processing. In order to expedite the OIED’s formal processing of the Report, the referral should occur as soon as possible after the grievance or complaint is filed.
5.1.5 Equal Employment Opportunity Informal Inquiry (SHRA Employees Only).
SHRA Employees and applicants may have the opportunity to file an internal grievance under the SHRA Employee Grievance Policy.
5.1.6 External Filing of Discrimination Charge, Civil Suit or Criminal Charge.
The submission of a Report to the OIED pursuant to this procedure does not preclude an individual from filing an external charge of discrimination, harassment, or retaliation directly with the Equal Employment Opportunity Commission (EEOC), the Office of Administrative Hearings-Civil Rights Division (OAH-CRD), the U.S. Department of Education, Office for Civil Rights (OCR), or other relevant agency, nor does it prevent an individual from pursuing a related civil action or criminal charge.
5.2 In appropriate circumstances, NC State may place an employee on administrative leave with pay (for EHRA employees) or investigatory placement with pay (for SHRA employees) or may place a student on interim suspension during the Discrimination, Harassment, or Retaliation Complaint Resolution Process.
6. PRELIMINARY REVIEW
6.1 Once a Report has been submitted to the OIED, an investigator will conduct a preliminary review of the Report to determine whether the Report alleges facts that, if true, would constitute a violation of NCSU POL 04.25.05 (Equal Opportunity and Non-Discrimination Policy).
6.2 When a preliminary review of a Report indicates that the allegations, if true, might constitute a violation of the Equal Opportunity and Non-Discrimination Policy (“policy violation”), the OIED will initiate an investigation of the allegations.
6.3 When the preliminary review of the Report indicates the allegations within the Complaint would not constitute a policy violation, the investigator will administratively close out the process and will notify the Complainant in writing of this determination.
6.4 For employee cases, the OIED may consult with an employee’s supervisor to address allegations of inappropriate conduct in a Report, even when the allegations do not rise to the level of a policy violation. If administrative corrective action is taken with regard to an employee prior to the commencement or completion of an OIED investigation, the OIED will determine whether to pursue the investigation or to administratively close the formal process.
7. FACILITATED RESOLUTION
7.1 At any time after filing a Report to the OIED, a Report may be resolved through a facilitated resolution provided that: (1) the Complainant(s) and Respondent(s) mutually agree to the facilitated resolution and (2) the OIED agrees that the facilitated resolution would be appropriate to resolve the complaint.
7.2 A facilitated resolution is an informal process resulting in an informed voluntary agreement between the Parties and NC State to resolve a Complaint utilizing strategies such as educational interventions or other restorative principles to address the concern, prevent its recurrence, and/or restore the community. The facilitated resolution process allows the parties an opportunity to resolve the issue and is intended to be educational in nature.
8. INVESTIGATIVE PROCESS
8.1 If the preliminary review indicates that a potential policy violation has occurred, OIED will perform an investigation of the conduct alleged. OIED will notify the parties of the investigator who has been assigned to complete the investigation. Upon receipt of the notice, either Party must notify the Vice Provost for Institutional Equity and Diversity if they believe the investigator assigned to the investigation has a conflict of interest or bias such that the investigator could not complete a fair investigation.
8.2 OIED will also notify the Respondent(s) of the alleged conduct and policies at issue and will provide the Respondent(s) with the opportunity to respond to the allegations and to provide exculpatory evidence and witnesses. For employees, at such time as is appropriate, OIED will also notify the supervisor(s) of the Respondent(s) about the investigation.
8.3 OIED will provide written notice of the date, time, location, participants and purpose of any investigative interview or meeting to a Party whose participation is invited or expected, with sufficient time for the Party to prepare to participate.
8.4 OIED will complete the investigation in a reasonably prompt time frame; however, some investigations may take longer, due to the complexity of the issues, the University calendar (including breaks, holidays, or other closures), the unavailability of parties or witnesses, inclement weather, and/or other unforeseen circumstances. (See section 5.1.3 regarding the time to complete formal processing of an EEO Informal Inquiry pursuant to the SHRA Employee Grievance Policy.)
8.5 If a Complainant fails to respond to the OIED’s requests to provide information regarding the Report or fails otherwise to participate in the investigation, the OIED may administratively close the formal resolution process.
8.6 The OIED will provide each Party an opportunity to review a written summary of the other Party’s investigation interview and/or any written statement that a Party has submitted regarding the allegations in the report, as well as a written summary of witness interviews. Each Party will be provided with an opportunity to submit to the investigator proposed questions to the other Party or a witness concerning their statements to the investigator. The investigator will review the proposed questions and pose all relevant questions to the other Party or witness. The investigator will exclude any irrelevant questions, and when excluded, the investigator will provide to the Party who submitted the question an explanation for the decision to exclude the question as not relevant. Irrelevant questions include, but are not limited to, the following categories, which are deemed “irrelevant” at all stages of the formal resolution process:
- With regard to reports of sexual harassment or sexual misconduct, questions about the Complainant’s sexual predisposition or prior sexual behavior, unless they are offered to prove that someone other than the Respondent committed the alleged conduct or they concern specific incidents of the Complainant’s prior sexual behavior with respect to the Respondent and are offered to prove consent; and
- Questions that constitute or seek disclosure of information protected under a legally-recognized privilege; and
The investigator may, depending on the questions and answers provided by the Parties, solicit follow-up questions from the Parties.
8.7 The OIED will prepare a draft investigative report that summarizes the relevant evidence and policies at issue. Prior to the investigative report being finalized, a draft will be made available to each Party for their review and written response. Each Party will have ten (10) days from receipt of the draft to submit comments on the report or other relevant evidence.
8.8 Following each Party’s opportunity to review the draft investigative report, the OIED will analyze the information collected during the investigation and finalize the investigative report.
9.1 For student Respondent cases, at the conclusion of the investigation, the OIED will provide the Office of Student Conduct with a copy of the final investigative report for review and consideration of any appropriate charges for violations of the Code of Student Conduct (see POL 11.35.01). If charges are issued, the matter will be resolved utilizing the procedures described in the Student Discipline Procedures (REG 11.35.02).
9.2 For employee Respondent cases, the investigator will analyze the facts and policies at issue and make a determination of whether a policy violation is substantiated. The following process will apply in employee Respondent cases:
- In reaching its determination, the investigator will apply a preponderance of evidence standard that is, whether the information presented has shown that it is “more likely than not” that the Respondent engaged in the alleged conduct and therefore violated the Equal Opportunity, Non-Discrimination and Affirmative Action Policy.
- The OIED will notify the parties in writing of the outcome of the investigation and determination as to whether any policy violation was substantiated. If the OIED determines there has been no policy violation, the notification to the parties concludes the investigation process. The determination letter will also include the Parties’ appeal rights. If the Complaint was referred to the OIED through a University Grievance Procedure, the OIED will notify the appropriate entity that the investigation process has concluded.
- The investigator’s determination will be included in a finalized investigative report. The OIED’s written report will be provided to the appropriate supervisor(s), with a copy provided to the Office of General Counsel and Employee Relations.
- The notification letters to the parties and the OIED written report shall be treated as confidential to the extent that they contain information protected under federal or state law, including, but not limited to the Family Educational Rights and Privacy Act (FERPA) or the State Human Resources Act of North Carolina (SHRA). Confidential student and employee information may include information that can identify persons who are Complainants, Respondents, or witnesses.
10. CORRECTIVE ACTION FOR EMPLOYEE RESPONDENTS
For employee Respondent cases, where a policy violation is substantiated, the OIED investigator may meet with the appropriate supervisor(s) and others as needed (i.e., Office of General Counsel, University Employee Relations) to discuss corrective action, including possible disciplinary action, to resolve the policy violation and prevent its recurrence. Prior to concluding the complaint resolution process, the OIED investigator may follow-up with the supervisor and/or University Employee Relations regarding what corrective action was taken.
11. APPEALS FOR EMPLOYEE RESPONDENTS
11.1 The Parties shall be notified in writing of their appeal rights when provided with the investigator’s written decision. Either Party may appeal an investigator’s determination regarding responsibility based on one or more of the following grounds:
- Procedural irregularity that affected the outcome of the matter;
- New evidence that was not reasonably available at the time the investigator’s written decision was made, that could affect the outcome of the matter; and
- The investigator(s) or decision-maker(s) had a conflict of interest or bias for or against Complainants or Respondents generally or an individual Complainant or Respondent that affected the outcome of the matter.
11.2 Any appeal must be submitted within ten (10) days from the date that the investigator’s written decision is issued to the Parties through any delivery method where receipt can be verified. If the tenth (10th) day falls on a Saturday, Sunday, or University holiday, the deadline for filing the appeal will be extended to the next University business day. The time limit for filing an appeal begins upon delivery of the written decision to the Parties, respectively. If no timely appeal is filed, the investigator’s written decision will be final. An extension of time to file an appeal may be requested in writing within the ten-day limit, and it is within the discretion of the Vice Provost for Institutional Equity and Diversity, or designee, to grant or deny such requests.
11.3 The appeal should be directed to the Vice Provost for Institutional Equity and Diversity or designee, who will notify the other Party in writing when an appeal has been filed. The appeal must contain the following:
- A copy of the decision being appealed;
- A detailed written statement specifying the grounds for appeal, a list of alleged errors in the decision or procedure, an explanation for why those decisions are in error, and the complete factual basis for the appeal;
- A requested remedy; and
- The signature of the appellant and date the appeal was submitted.
11.4 The opposing Party shall have ten (10) days from their receipt of the notification of appeal to provide a written response to the appeal.
11.5 Upon receipt of an appeal and any written response to the appeal, the Vice Provost for Institutional Equity and Diversity shall appoint an Appeal Officer to review the appeal. The Appeal Officer may be a University employee or external third party at the discretion of the Vice Provost for Institutional Equity and Diversity. The Vice Provost for Institutional Equity and Diversity will send a notice to both Parties identifying the Appeal Officer. Either Party must notify the Vice Provost for Institutional Equity and Diversity within five (5) days if they believe the Appeal Officer assigned to the case has a conflict of interest or bias such that the Appeal Officer could not conduct a fair review of the appeal. The Vice Provost for Institutional Equity and Diversity shall have the discretion to remove or re-appoint an Appeal Officer if deemed necessary to address a reported conflict of interest or bias.
11.6 The Vice Provost for Institutional Equity and Diversity or designee will provide the documents submitted by the Parties on appeal to the Appeal Officer. Appeals will be decided on the record of the investigation. The Appeal Officer will not conduct a new investigation. However, the Appeal Officer may request the non-appealing Party to submit a written statement of their position on appeal. The written statement becomes part of the appeal record.
11.7 The Appeal Officer will review the appeal documentation and any other information required to render a decision on the appeal. The Appeal Officer will issue a written decision on the appeal within fifteen (15) days of receipt of all documentation required to decide the appeal, but that deadline may be extended for good cause. The decision on appeal will be provided simultaneously to both Parties.
The Appeal Officer’s decision on appeal may:
- Affirm the investigation findings;
- Remand the case to the investigator based on:
(1) Procedural errors that affected the outcome of the investigation; or
(2) New and significant material information that has become available and was not available previously to a person exercising reasonable diligence, which information could have affected the outcome of the proceeding; or
- Remand the case to a new investigator if the Appeal Officer finds that the investigator had a conflict of interest or bias for or against Complainants or Respondents generally or an individual Complainant or Respondent that affected the outcome of the matter.
As defined in NCSU POL 04.25.05, Retaliation is any adverse action (including but not limited to intimidation, threats, or coercion relating to an adverse action) against a person because that person engaged in a Protected Activity. If during the course of the Complaint Resolution Process, the OIED receives a report of Retaliation pertaining to the report being investigated, the OIED will review the allegations of Retaliation and may determine that it is appropriate to investigate the allegations as part of the pending Complaint Resolution Process or initiate a new Complaint Resolution Process in accordance with Section 8 of this regulation. Substantiated allegations of Retaliation are subject to corrective action in accordance with Section 10 of this regulation.
13. RELATIONSHIP TO OTHER NON-DISCRIMINATION LAWS AND POLICIES
This regulation and its companion policy address NC State’s process to respond to allegations of Discrimination, Harassment, or Retaliation.
Allegations of conduct that do not fall within the definition of Discrimination, Harassment, or Retaliation may be covered by provisions contained in other university policies or regulations. Conduct that may constitute Sexual Harassment as defined by the Title IX Sexual Harassment Policy (POL 04.25.07), is subject to review under that policy and REG 04.25.07. The dismissal of a Formal Complaint under the university’s Title IX Sexual Harassment procedures does not preclude action under the Equal Opportunity, Non-Discrimination and Affirmative Action Policy (POL 04.25.05) and this regulation.
Nothing in this regulation is intended to (a) restrict any rights that would otherwise be protected from government action by the First Amendment of the United States Constitution; or (b) deprive a person of any rights that would otherwise be protected from government action under the Due Process Clauses of the Fifth and Fourteenth Amendments of the United States Constitution; or (c) restrict any other rights guaranteed against government action by the United States Constitution.