NUMBER: EOP 1.01
SECTION: Equal Opportunity Programs
SUBJECT: Equal Opportunity Complaint Processing
Procedures
DATE: January 1, 1995
Policy for: All Campuses
Procedure for: All Campuses
Authorized by: Bobby D. Gist
Issued by: Equal Opportunity Programs
________________________________________________________________
THE OFFICE OF EQUAL OPPORTUNITY PROGRAMS
The Office of Equal Opportunity Programs was established by the
President of the University to provide equal opportunity and
affirmative action in education and employment for all persons
regardless of race, color, religion, sex, national origin, age,
disability, or veteran status. The President appoints the Executive
Assistant to the President for Equal Opportunity Programs to
implement these functions. The Executive Assistant to the President
is responsible for the overall operation of the office, and this
individual is responsible for planning, developing, administering and
evaluating the University's equal opportunity/affirmative action
policies and practices to insure compliance with applicable federal
and state statutes relating to non-discrimination in employment and
education.
DISCRIMINATION COMPLAINT PROCESSING PROCEDURES
I. PRE-COMPLAINT REVIEW (Who May File)
A. An individual (i.e., person, student, faculty, staff member or
applicant) may file a complaint or seek information about
illegal discrimination at the University of South Carolina based
on race, color, religion, sex, national origin, age, disability,
or veteran status through the Office of Equal Opportunity
Programs (hereinafter referred to as EOP office). Inquiries
may be made by telephone, in person, or in writing.
B. The purpose of pre-complaint review is to provide an individual
an opportunity to discuss confidentially the specifics of
his/her complaint and to receive guidance and information on
the administrative procedures followed by the Office of Equal
Opportunity Programs should a complaint be filed.
C. It is not necessary for an individual to reveal his or her
identity in seeking information about filing a possible
discrimination complaint.
D. As a general rule, no formal administrative action will be
taken on anonymous complaints of discrimination. However,
the designated EOP official receiving the anonymous complaint
may, depending on the seriousness of the incident described,
bring the anonymous charge to the attention of the Legal
Department, the department head and possibly the alleged offender.
E. An individual, faculty or staff member, or student who is
made aware of an incident of illegal discrimination should
refer the person(s) to the Office of Equal Opportunity Programs
for assistance.
F. After receiving information or pre-complaint counseling from
the EOP office, an individual may:
1. choose not to pursue a complaint; or
2. decide to take action directly with the alleged offender/
respondent by verbally or in writing requesting the
individual to cease the discriminatory behavior; or
3. report the matter to the alleged offender's/respondent's
supervisor or department head asking that steps be taken
to ensure that the offending behavior ceases; or
4. ask a designated university official to pursue informal
resolution of the matter; or
5. proceed with a formal complaint of discrimination through
the Office of Equal Opportunity Programs.
G. If the identity of a complainant is known and if the Office of
Equal Opportunity Programs has not been involved in the
resolution of a problem, the EOP office should make follow-up
contact within a reasonable period of time to ascertain
whether the matter has been resolved and proceed to close
its file if all parties agree to the resolution.
II. INFORMAL RESOLUTION PROCESS FOLLOWED BY THE OFFICE OF EQUAL
OPPORTUNITY PROGRAMS FOR COMPLAINTS OF DISCRIMINATION
A. Informal complaint resolution focuses on conciliation, not
sanctions; however, disciplinary action including an oral or
written warning may be issued if warranted. The aim of informal
resolution is to ensure that the discriminatory behavior ceases
and that the matter is resolved promptly at the lowest possible
level to effect conciliation. The alleged offender may be
asked, politely but firmly, to cease the offensive behavior.
He or she may be told of the identity of the complainant at
this stage. Investigation is optional, since the emphasis is
not on establishing guilt or innocence, but on stopping the
alleged discrimination.
Informal complaint resolution may be achieved by any of the
following steps:
1. action taken by the complainant to address the matter
directly with the alleged offender; or
2. action to negotiate a resolution taken by the alleged
offender's supervisor or department head, after
consultation with the Office of Equal Opportunity
Programs upon the request of the complainant; or
3. mediation undertaken by the Office of Equal Opportunity
Programs.
B. If mediated, the Office of Equal Opportunity Programs, the
supervisor or department head, as applicable, is required to
prepare a memorandum for the record indicating the complaint,
the action taken and the resolution achieved. This memorandum
will be filed in the Office of Equal Opportunity Programs
permanent files.
C. The Office of Equal Opportunity Programs shall decide whether a
complaint warrants an attempt at informal resolution. In some
cases, a formal investigation may be appropriate and must be
pursued to protect all parties to the complaint.
III. FORMAL PROCEDURE FOLLOWED BY THE OFFICE OF EQUAL
OPPORTUNITY PROGRAMS FOR COMPLAINTS OF DISCRIMINATION
A. Filing a Formal Complaint of Discrimination
To initiate a formal complaint an individual (person, student,
faculty, staff member, or applicant) is required to complete
an official complaint form which may be obtained from the Office
of Equal Opportunity Programs. The complaint is then submitted
to the EOP official designated to receive the complaint.
The EOP office shall be the principal investigator of the
complaint.
In order to file a complaint, the complainant must be able to:
1. state a cause of action based upon one's membership in a
protected class: race, color, religion, sex, national
origin, age, disability or veteran status and the
complaint must be;
2. timely, the date of the alleged violation(s) must have
occurred within the past 180 days, and the complainant
must be able to identify, with specificity, the dates of
the alleged offense(s), and the complaint must be;
3. reduced to writing and signed before a notary public or
EOP official, and;
4. must indicate some harm that the complainant has suffered,
is suffering, or will suffer as a result of their protected
class membership status, and;
5. specify the relief the complainant is seeking as a result
of the complaint.
B. Acknowledging Receipt of Formal Complaint of Discrimination
After receipt of a discrimination complaint form, the EOP
designated investigator shall meet with the complainant as soon
as possible, generally no later than five work days after
receiving the complaint. The purpose of this meeting is to
review the complaint and clarify issues which may be unclear to
the complainant or to the EOP Investigator. The complainant
will be asked to identify witnesses to the incident(s) or other
possible victims of discrimination by the same alleged offender,
steps taken to resolve the matter, and the outcome being sought
through this process. The complainant will be advised that
notice of the charge of discrimination and a copy of
the complaint will be provided to the alleged offender.
C. Notice of Charge/Service of Complaint of Discrimination
The Notice of Charge will contain the name of the complainant,
the specific allegations made (date, places and nature of the
discrimination) and a copy of the complaint. The Notice of Charge
is processed as follows:
1. The Notice of Charge along with a copy of the complaint
will be provided to the alleged offender or his/her
representative by the EOP Investigator, or other
designated official, in a timely manner, normally
within one week of receipt of the formal complaint.
The Notice of Charge and copy of complaint will be
served either personally or by certified mail.
2. The alleged offender shall answer the charge(s) in
writing within ten (10) University work days of
receiving the Notice of Charge. The time limit to
provide a written response may be extended with the
approval of the designated official handling the
complaint. If the alleged offender fails to respond,
notice of such failure to respond will be provided to
the department chair/department head of the alleged
offender and the investigation will proceed.
The alleged offender may be compelled by the University
to respond to a charge of discrimination, to the extent
permitted by or consistent with federal and state law.
3. A copy or summation of the response to the Notice of
Charge will be provided to the complainant by the
designated EOP official.
D. Negotiated Resolution of Complaint of Discrimination
After reviewing the response to the charge, the EOP
designated official may attempt a negotiated resolution
of the complaint which is agreeable to both parties. The
proceedings may be terminated by the designated official
upon receipt of a written resolution of the complaint
acceptable to both parties. In those instances, a formal
negotiated settlement agreement will be developed and signed
by all parties.
E. Investigating Formal Complaints of Discrimination
The process of formal investigation includes the following:
1. An investigator will be assigned by the Executive
Assistant to the President for Equal Opportunity
Programs.
2. The investigator will interview separately the
complainant, alleged offender, and witnesses
identified by each party.
3. The investigator may meet with the complainant
and alleged offender together if,in his/her judgment,
such a meeting could foster a resolution to the problem
and the complainant and alleged offender agree to such
a meeting.
4. Normally the investigation should be completed within 30
University work days of receipt of the formal complaint;
however, if warranted by the circumstances of the
complaint, this time may be increased at the discretion
of the investigator.
5. Based upon the information obtained during the
investigation, the investigator shall issue a report
of the findings and make appropriate recommendations
to the Executive Assistant to the President for Equal
Opportunity Programs. The investigator, as appropriate,
may consult the Vice President for Human Resources,
the Vice President for Student Affairs,
and the Legal Department regarding the appropriate
recommendation of disciplinary action to be taken.
The report of findings and recommendations shall include a
statement of the complaint, a chronology of the investigation
(who was interviewed and by whom), the information discovered,
a list of documents pertinent to the investigation, the
conclusions reached, the investigators' recommendations, the
investigator's name and date of the report.
If disciplinary action is recommended, the report shall be
presented, as appropriate, to the President, Provost, Vice
President for Human Resources, Vice President for Student
Affairs, Chancellor, Dean, Department Chair or Director by the
Executive Assistant to the President for Equal Opportunity
Programs. The EOP designated official will then notify the
complainant and the alleged offender, in writing, of the
findings of the investigation within five University work days
after the conclusion of the formal investigation. This notice
will not include the recommendations. The investigative record
shall be maintained by the Office of Equal Opportunity Programs.
F. Findings
There are two categories of findings: (1) no reasonable cause
to believe discrimination occurred, or (2) reasonable cause to
believe a violation has occurred.
1. If no reasonable cause is found, the charge is
dismissed. The complainant is advised that if he or
she is dissatisfied with the decision, a Presidential
Review may be requested, or a complaint may be filed
with Federal or State agencies which enforce compliance
with laws prohibiting illegal discrimination.
[Request for a Presidential Review must be submitted in
writing to the President within five University work days
of receipt of the notice of findings. A Presidential
Review does not guarantee an audience with the President
as opposed to a review of the record.]
2. If a reasonable cause violation is found, appropriate
disciplinary action shall be taken, where appropriate,
by the President, Provost, Vice President for Human
Resources, Vice President for Student Affairs,
Chancellor, Dean, Department Chair or Director,
who must notify the charged party, in writing, of the
action to be taken, the reasons for the action and
avenues of appeal. The nature of the discipline to be
imposed on the offender/charged party shall not be
communicated to the complainant, but the complainant
may be informed whether the offender will be disciplined.
The charged party may appeal the findings by requesting a
Presidential Review. If the disciplinary action taken
is grievable, it may be grieved through appropriate
channels; however, a copy of the reasonable cause
violation will be made a part of the University's defense.
G. Sanctions/Disciplinary Action
Persons found to be in violation of the University's
anti-discrimination policy will be subjected to disciplinary
action which may include, but not limited to, oral or
written warnings, suspension, transfer, demotion or
dismissal and request for revocation of tenure procedures
in cases involving tenured members of the faculty.
H. If the complainant can demonstrate that he/she has suffered a
loss as a consequence of illegal discrimination, a remedy may
be recommended. The objective is to restore the complainant
to his/her status before suffering the consequences of the
discrimination. A remedy may consist of a reassignment,
transfer, letter of apology, or other appropriate action.
A remedy is not subject to appeal through the Presidential
Review process.
IV. PRESIDENTIAL REVIEW/APPEAL
A request for a Presidential Review shall be made in writing
to the President by either party to the complaint within five
University work days of receiving notification of the findings at
the conclusion of the formal investigation.
A. Composition of Review Panel
1. Within five University work days after receipt of a
request for a Presidential Review/Appeal, the President
or the President's designee will appoint an impartial
Review Panel of three individuals who will conduct a
closed review of the record and provide recommendations
to the President.
2. No Review Panel member will be appointed from the college
or department of either the complainant or the alleged
offender.
3. The Chairperson of the Review Panel will be appointed by
the President or the President's designee.
B. Consideration of the Complaint by the Review Panel
1. The President's Review Panel shall conduct a review of
the record as soon as possible, normally within seven
University work days of the appointment of the Panel.
The EOP office will be required to present the
rationale for its recommendations findings.
2. Both parties may be present during the presentation
of the case to the Review Panel by the EOP office.
Questioning of witnesses is at the discretion of the
Review Panel and shall be conducted solely by members
of the Panel.
3. Each party shall have the right to provide additional
evidence in writing relevant to the complaint.
4. Each party to a complaint may be accompanied to the
review by an advisor or legal counsel. The parties
shall notify the chairperson of the Review Panel at
least five (5) University work days in advance of the
Presidential Review hearing if he or she will be assisted
by an advisor or counsel.
5. The Chairperson of the Review Panel shall be authorized
to request additional files, records, and documents
relevant to the complaint, including the report of the
findings and recommendations of the EOP investigator.
6. The Review Panel shall report its findings and
recommendations to the President in a timely manner,
normally within five University work days of the
conclusion of its review.
7. The President or the President's designee shall issue a
decision on the matter including appropriate sanctions,
and will notify the parties of his or her decision as
soon as possible after the receipt of the Review
Panel's findings.
8. There is no further internal appeal under these
procedures available to the complainant. The charged
party may appeal disciplinary action through the student
grievance procedure, the employee grievance procedure
or faculty grievance procedure, as applicable, provided
the disciplinary action is subject to appeal through one
of these processes. Complainants may also have the right
to file a complaint with the S.C. Human Affairs
Commission, the Office of Civil Rights, U.S. Department of
Education, or the Equal Employment Opportunity Commission,
as appropriate.
9. Every effort shall be made to conclude the Presidential
Review process within thirty University work days after
appointment of the Presidential Review Panel.
V. RELATED PROCEDURES
A. Suspension or Withdrawal of Complaints of Discrimination
1. The University may suspend its investigative proceedings
at any stage if the designated EOP official receives a
written resolution of the complaint agreed to by
both parties.
2. A complaint, or any part thereof, may be withdrawn at
any time upon receipt of a written request from the
complainant that the complaint be withdrawn. The
charged party will be notified of the withdrawal of
the complaint. Such withdrawal shall be without
prejudice to the rights of the complainant to refile
the complaint at a later date, so long as the matter
is timely (within 180 days of the date of the alleged
violation).
B. Dismissal of Complaints of Discrimination
1. A complaint may be dismissed if the designated official
investigating the complaint determines that the complaint
is without merit, or the accusations/charges are false.
2. A complaint may be dismissed if the designated official
in the EOP office determines that the complainant has
not cooperated and the action or actions of the
complainant impairs or compromises the EOP office's
ability to conduct an objective investigation.
In such instances, where applicable, the EOP
office will cease its' investigation, remove itself
and refer the complainant to the appropriate federal/state
administrative agencies that are empowered to conduct
investigations/resolution of illegal/prohibited
discrimination.
3. Willful false accusations by complainants or abuse of
the EOP process may result in actions and sanctions,
to include reprimand, suspension, demotion, or dismissal.
C. Appealing a Sanction
As a result of an investigation in which reasonable cause is
found to believe a discriminatory violation has occurred,
disciplinary action may be taken against the charged party.
If the disciplinary action is a demotion, dismissal, or
suspension, it may be grievable by staff employees under the
University Grievance Procedure administered by the Division of
Human Resources. Faculty should consult the Faculty Manual for
appropriate grievance procedures. Students may appeal
disciplinary actions to the Judicial Appeal Board. Information
on the Judicial Appeal Board is contained in The Carolina
Community: Student Policy Manual.
VI. RECORD KEEPING
A. While a complaint is being investigated all documentary
evidence regarding the complaint must be maintained in the
confidential files of the officials handling the complaint.
B. After final resolution of the complaint within the university
system, all records regarding the complaint must be transferred
to the confidential files of the EOP office.
C. Access to these confidential records shall be on a need to
know basis only. Persons who may have access include:
the President of the University, Provost, Chancellor or Dean of
the campus, the Legal Department, the members of the
President's Review Panel, the Vice President for Human
Resources and/or Campus Personnel Director, Campus Affirmative
Action Coordinator, the Vice President for Student Affairs or
equivalent campus student affairs official, and any other
designated official appointed by the President.
VII. CONFIDENTIALITY
A. Every effort shall be made, to the extent possible, to
protect the privacy of the persons involved in the complaint.
B. The following steps should be taken to help assure
confidentiality:
1. The number of persons with knowledge of the complaint
shall be kept to a minimum. Only persons with a need
to know shall be notified of the complaint.
2. The EOP office shall exercise discretion in the setting
of dates and locations of interviews, and the placing
of, and responding to, telephone calls related to the
complaint.
3. The EOP office will interview, in person, individuals
named as witnesses by parties to the complaint.
Solicitation of comments from others, unless there is
reason to believe they have relevant knowledge about
the complaint, will be avoided.
4. Correspondence concerning the complaint shall be issued
in sealed envelopes and marked "Confidential to the
Personal Attention of the Addressee."
VIII. EXCEPTIONS
In exceptional circumstances, depending on the nature of the
alleged offense, it may be necessary for the President, upon
the advice of the Vice President of Human Resources, the Vice
President for Student Affairs and the General Counsel, to
suspend/remove an alleged offender prior to beginning a formal
investigation of a complaint. Reinstatement or further disciplinary
action may be appropriate based upon the findings. The disciplinary
action may be appealed as outlined in Section V.C. above.
IX. NON-RETALIATION
It shall be deemed a violation of the University of South Carolina's
policies and procedures for any person to retaliate, intimidate or
take reprisals against a person who has filed a complaint,
testified, assisted or participated in any manner in the
investigation/resolution of a complaint of illegal discrimination
as filed with the Office of Equal Opportunity Programs. Appropriate
sanctions/disciplinary actions shall be taken against any person
who has been found to have violated this policy.
If you are a student, staff or faculty member or applicant and need to file a complaint of discrimination, please contact Rhonda Y. Edwards.
Send comments to Myra L. Smith