Client Alert

On September 21, the National Science Foundation (NSF) published a new policy concerning sexual harassment, sexual assault and other forms of harassment. Effective October 21, 2018, NSF will implement this policy as a new term and condition in the grants it awards, meaning awardee institutions will be responsible for complying with the policy as a condition of continued funding.

Overview of the New Policy

NSF’s stated goal in implementing its new anti-harassment policy is to further its “no tolerance” stance on sexual harassment, sexual assault and other forms of harassment anywhere NSF-funded research is being conducted. In doing so, NSF reiterated its expectation that all U.S. higher education institutions and other NSF grant awardees will continue to fully investigate all harassment complaints and ensure compliance with federal nondiscrimination and harassment laws. The new policy will “bolster” NSF’s existing anti-harassment policies, guides and communications “so that organizations funded by NSF clearly understand expectations and requirements.”

NSF’s new policy imposes significant new notification requirements on awardee institutions. Under the new policy, an institution that has been awarded an NSF grant must notify NSF any time it:

  • makes any finding or determination regarding a principal investigator (PI) or co-PI identified in an NSF grant that demonstrates that individual violated a law or institutional policy related to sexual harassment, sexual assault or other forms of harassment

  • places any PI or co-PI identified in an NSF grant on administrative leave, or imposes any other administrative action against him/her that is related to a finding or investigation involving sexual harassment, sexual assault or other forms of harassment.

The NSF policy requires institutions to make these notifications promptly, within 10 business days from the date of the finding and/or imposition of administrative action. The NSF policy also requires institutions to disclose the nature of, and reasons for, their findings and/or action in some detail, and identify by name the individual(s) in question.

Implications for NSF Awardee Institutions

Although the new notification requirements are straightforward, their implications on institutions will surely prove significant in a number of ways.

First, institutions must immediately ensure that their own internal policies and procedures comport with the new NSF policy and permit institutional compliance with the new notification requirements. In announcing the new policy, NSF specifically encouraged institutions to carefully review their own policies to determine if any alterations are necessary. Given this explicit suggestion, it is unlikely that NSF will be forgiving if an issue arises where a notification required by the new policy conflicts with an existing institutional policy.

Second, going forward, institutions would be wise to take the new NSF reporting requirements into account when considering whether to place an individual on administrative leave. It is not uncommon for an institution to use administrative leave (or other administrative action) as a temporary solution while it conducts a full investigation into allegations of harassment due to the perception that administrative leave has minimal consequences for an individual should he/she ultimately be exonerated. However, the new NSF policy increases those potential consequences by requiring the institution to make a detailed disclosure of the administrative action and the reasons for it. There may still be circumstances where it is appropriate to place an individual on administrative leave pending an investigation, notwithstanding the increased potential for reputational and other damages, but institutions should carefully weigh the costs and benefits of doing so and should consult legal counsel to develop strategies to mitigate those risks.

Third, institutions should implement policies and procedures that address the removal and substitution of a PI or co-PI from an NSF-funded project. The new NSF policy explicitly gives awardee institutions the ability to “propose a substitute investigator” if the institution determines that the PI or co-PI cannot carry out the project or abide by the grant’s terms and conditions. If an institution needs to remove a PI or co-PI from a project for failing to abide by anti-harassment laws, having an efficient and comprehensive removal and substitution policy in place may be the difference between the full NSF grant remaining with the institution or being reduced, suspended or revoked by NSF as is its right.

Finally, when specific circumstances permit, institutions should take a proactive approach to making required notifications to NSF. The policy sets forth the minimum required content of the notification, but an institution should strongly consider providing additional details to demonstrate its commitment to the project and establishing a safe research atmosphere. In doing so, institutions should consider addressing the following additional factors that NSF has stated it will consider when evaluating notifications:

  • the safety and security of the individuals who are supported by the NSF grant

  • the overall impact the conduct had on the NSF-funded activity

  • the continued advancement of taxpayer-funded investments in science

  • whether the institution has taken appropriate action(s) to ensure the continuity of science and that continued progress on the NSF-funded project can be made.

To ensure that an institution is able to gather this relevant information and compellingly present it to NSF in its notification, the institution should consider engaging legal counsel at the outset of the process. By engaging legal counsel early, the institution will increase counsel’s ability to obtain helpful facts during an investigation and then marshal them in the notification to persuade NSF to maintain the institution’s funding.