ACADIA
UNIVERSITY’S POLICY AGAINST HARASSMENT AND DISCRIMINATION
The report and recommendations of the Committee to Review the Harassment and Discrimination Policy has now been circulated on campus. As the AUFA representative on the HDPR Committee, I can highlight some of the issues that were of concern to the AUFA membership in general, and to CAUT legal counsel in particular, when the review process began.
Initially it was unclear what the Committee’s role was. Was it only of an advisory nature to the President, or an independent body representative of each sector of the University to deal with the various interests around the table and negotiate a fair document that was expected to stand with input of all the constituencies represented? There was no set process to follow for the review to take place. Such was the confusion, there was even a [mistaken] belief that there were two policies in effect on campus. Suspicion was heightened by the fact that an experienced candidate for the position of Equity Officer had been rejected in favour of the appointment of an Acting Equity Officer, who was perceived as having neither training nor experience in matters relating to Harassment and Discrimination.
The concern about the qualifications of an Equity Officer went beyond the personal to include issues internal to the policy: the Equity Officer was an employee of the University, therefore beholden to the employer for continued employment; the Equity Officer acted as the advisor to the complainant; that Equity Officer was also the “decision maker” at the preliminary stage of the process, when it is determined whether an alleged conduct constitutes a violation of the policy and whether to proceed or not; the Equity Officer was also the investigator at the next step of the complaint. These several areas of conflict made an appearance of neutrality difficult to maintain.
The other concerns about the policy related to the lack of clear definitions of the conduct which was subject to the policy. In addition, the procedure for appeals of the Equity Officer’s decisions were subject to inflexible time limits with no provisions to accommodate respondents who might be ill, or disabled.
Since November of 2005, the Committee has met numerous times and addressed every issue raised. We have been committed to producing a better policy that would serve Acadia University well. All members of the Committee worked diligently to achieve this objective.
AUFA members should be aware that this policy does not remove any rights provided in the Collective Agreement. In cases where the Collective Agreement does not apply, such as harassment by colleagues for example, the Acadia policy is used.
I would like to address some major achievements of the Committee, and perhaps anticipate some possible criticisms of the recommended policy. I will proceed with specific references to the draft policy.
In order to ensure the understanding that the Acadia community is a place where harassment and discrimination is not acceptable, the HDRP Committee have specified in B.2 that EVERYONE is responsible for it:
The University and all members of the University community, including the Board of Governors and Senate, share responsibility for ensuring that the work and learning environment at Acadia is free from discrimination, sexual harassment, and personal harassment. Specifically, Senior Administrative Officers bear a primary responsibility for maintaining a learning and work environment free from discrimination, sexual harassment, and personal harassment. Unit Heads shall act to maintain a learning and work environment free from discrimination, sexual harassment, and personal harassment, whether or not they are in receipt of individual complaints.
The HDPR Committee have ensured that all possible means are made available for the education of the whole campus community regarding issues of harassment and discrimination.
A.2 states that:
The University is committed to providing and promoting programs that raise campus awareness of the nature of, and problems associated with, discrimination, sexual harassment, and personal harassment and educating those in the positions of responsibility in the objectives and implementation of the policy.
Neither of these were mandated before in such strong terms and the tone of the policy has shifted from a complaint-based to a positive approach to improving the campus environment.
The concerns relating to the Equity Officer were also considered.
It is now clear that the Equity Officer needs to be qualified for his/her position. A.3 will now specify that:
The University will ensure that the Equity Officer is adequately trained in matters related to the roles and responsibilities of the position and is encouraged to remain current through continued professional development.
This will ensure that only qualified people will be hired for the position, and that they have to be actively involved in gaining new information and skills for the best performance of their responsibilities.
The role of the Equity Officer will be only advisory. It is now the complainant who chooses the procedural method which best fits the conduct under consideration, not the Equity officer: E 1.7
The Equity Officer will advise the complainant in choosing the most appropriate option” (informal resolution, mediation and formal complaint procedures).
In case of conflict of interest, the Equity Officer is expected to abstain from his/her involvement in the process; and the complainant and respondent have the right to appeal the decision made by the Equity Officer regarding his/her perception of conflict of interests. In E 1.4
In the case of conflict of interest, the Equity Officer will abstain from involvement in a complaint procedure on the grounds of either personal relationship with either respondent and complainant, actual or reasonable apprehension of bias or conflict outside the role of Equity Officer. If the respondent or complainant perceives a conflict of interest on the part of the Equity Officer, this shall be made known in writing to the Equity Officer. The Equity Officer shall respond in writing as to the decision on that issue.
This is an extremely important improvement of the policy.
The new right to appeal at every stage the various inadequacies found in the process was impressed on us by Rosemarie Morgan, CAUT’s lawyer, and is now in place. E.3.10
At any time, any party to the formal complaint may submit a written objection to any aspect of the process. All written objections will be maintained as part of the official file.
And, at the time of Appeal E. 7.1 states that
Any complainant or respondent who disagrees with the Equity Officer’s decision in E. 1.4, E. 3.4 or the investigative process under E. 4 or the sanction(s) or remedial action(s) imposed under E. 6 has the right to appeal.
This offers a good deal of protection against inept investigators or the methods used to reach certain conclusions. However, the most appropriate way of ensuring that a totally impartial third party takes care of the investigation has not been achieved. The most that could be done at this time was to apply the same conflict of interest articles, as defined in Section 1.4 to the investigator. I am under the impression that the main reason for the Chair of the Committee for refusing to consider the involvement of a professional investigator in a harassment and discrimination complaint is financial. The thought of having to pay the sums of money that specialists may require makes this issue very difficult to win at a time in which the Administration is in a budget cutting mood. It was clear, at various stages, that the University was not ready to give in to the possibility of major expenses on this matter. However, since we have now the right to appeal at every stage, if the investigation is not being carried out properly one can make objections effectively. All objections will be part of the official file, and will have an impact on decisions made by the Appeals Committee.
Record keeping has also been substantially changed. Now it is clear that only decisions can be part of the student, staff or faculty file, and that informal resolutions will not be entered. We have also added in F.6.1 that
Where records are retained in accordance with this policy those records are used only for the purpose for which they were created.
This will ensure that the information gathered is not used for any other purpose.
As for deadlines, E.1.2 meets our concerns and specifies that
In exceptional circumstances the Equity Officer may waive any procedural time limit imposed in this policy.
This, together with the appeals process, would deal with extensions deemed necessary and reasonable. So we consider this also an achievement.
The proposals on “Consensual Relationships” which are dealt with in Article F.7.3 produced contradictory reactions during the second round of comments.
In complaints of sexual harassment that involve an alleged romantic or sexual relationship, where the respondent has control over the employment or educational status of the complainant, or where a power differential favours the respondent, the burden of proof that the relationship was consensual rests with the respondent.
Even though the policy only deals with the onus of proof after a complaint has been filed, one AUFA member has suggested that it really meant that “you are guilty until proven innocent.” The other reaction from within AUFA presses that there is really never a consensual relationship between, let’s say, a thesis advisor and a student. The HDPR Committee discussed this issue at length and came to the conclusion that if AUFA members want to forbid all adult sexual relationship on campus, this should be introduced on its Agenda, and have all interested parties voice their opinion on this matter. As far as the HDPR Committee is concerned, F. 7.1 alerts all parties involved in relationships where a power differential exists to be VERY careful:
Anyone who enters into a romantic or sexual relationship with a person where a power differential exists must realize that, if a charge of sexual harassment, personal harassment, an/or discrimination is subsequently lodged, it will be extremely difficult to defend the conduct on grounds of mutual concern.
This commentary, and placing the burden of proof with the respondent, gives a great deal of protection to the person who becomes victimized.
A completely new section was created, “Policy Review”, in order to aid the next Review Committee in its process. There were serious misunderstandings regarding the timing of consultations of the policy, and the role that the President and his/her advisors would have. Now it is clear that a Presidential Committee will be mandated to review the policy every two years, with a clear indication of who shall constitute it, and the steps that need to be followed in order to accomplish its task. The President has no special power. She/He participates in the consultation, and has the opportunity to peruse the final draft of the HDRC and comment on it like anybody else. The reviewed policy does not depend on her approval. (This was one of the issues that arose during discussions.) The Review Committee owns the review of the policy.
At present, the draft document has been circulated to all the constituencies on campus for input for the second time . It has produced additional comments that were considered and integrated, when possible, at the meeting of September 11, 2006. The resulting draft has been sent to the President of the University for comment. If there is need to address further suggestions the Committee will meet again; otherwise, it is expected that the final draft will be recommended to the Board of Governors for approval. This expectation takes into account that lawyers for the University have already had a chance to comment on the document at the final stage (as did the CAUT lawyer, Rosemary Morgan).
I believe that this is a much better document, and Rosemary Morgan has concurred. I hope others in AUFA are as impressed as she was with the work that has been done.
Sonia Thon