When mishandled harassment cases put Simon Fraser University prominently in the national news last summer, the mass media focused on SFU's swim coach, who was first charged with sexual harassment, then fired, then rehired, and finally compensated for his legal costs.
That case was well suited for arousing salacious interest and selling newspapers. It featured an attractive student, a successful coach, multiple allegations of sexual misconduct, charges and countercharges, titillating e-mail and photos -- as well as a sexual harassment officer who resigned under pressure and a university president who went on sick leave because of depression. The media frenzy was exacerbated by a university administration that tried to minimize damage by minimizing the information it released -- which allowed journalists to keep digging and keep the story going week after week.
But last summer's real story was a dated harassment policy and an administration headed by a likeable, progressive university president who didn't always stick closely to policy and procedure and who sometimes didn't make timely, decisive decisions. This was not particular to harassment cases: the faculty association was well aware that the SFU administration had great difficulty carrying out various quasi-judicial procedures in ways that would satisfy a court of tribunal.
And now the real story is how SFU stickhandled out of the mess and, using a very open, consultative process, created an impressive new harassment policy.
Early this month, SFU announced the resolution of ten harassment cases, originating between 1993 and early 1997. The cases had been invalided, among other things, because the committees that adjudicated them had not been properly appointed. In the opinion of a senior CAUT lawyer, the procedural violations were so serious as to be considered substantive.
Most of these cases, which cannot be discussed in print because of privacy rights, did not involve faculty members. Allegations ranged from rape to racial discrimination to using offensive language.
One case which remains unresolved is that of psychologist Richard Freeman, who is currently suspended without pay pending his appeal of a 1997 criminal conviction for sexual assault. The university has said that if his conviction stands he will be fired (in which event, the unresolved internal case will presumably become moot).
Direct costs for settling the ten cases were $185,000, mostly in legal and consulting fees. Other costs included a severance package for former university president John Stubbs, who resigned in the aftermath of the mishandled cases. In accordance with the contract he had signed in 1992 and including a year's administrative leave, that package cost $315,000. Also in accordance with that contract, Stubbs became a tenured full professor at the top step of SFU's pay scale (presently $100,000/year). The university was also unable to reclaim any monies paid to seven people who were identified as victims and compensated under the old policy.
SFU's current president, Jack Blaney, expressed his "regret that we have had to spend taxpayers' money on legal issues, rather than teaching and research."
Blaney moved into the president's office on September 15, after an interregnum presided over by vice-president academic David Gagan. One of his first moves was to second economics professor and former vice-president academic Jock Munro to oversee the creation of a new harassment policy.
Shortly thereafter, Blaney held a press conference during which he revealed particulars of the procedural problems and that 11 cases would have to be reviewed. "When we discovered procedural shortcomings that called into question our harassment investigations, we had a duty to admit openly where we went wrong and to do the right and fair thing for everyone involved," Blaney explains.
In contrast with the previous summer, this led not to weeks of negative coverage, but to one "bad news" day. Later in the fall, the Vancouver Sun seems to have been convinced that its coverage during the summer and early fall had not fully lived up to journalistic standards; subsequent coverage has been more evenhanded and subsequent editorials have accentuated the positive.
On December 16, the Sun editorialized, "SFU deserves an A, at least in academics. Despite recent scandals, the (University) on Burnaby Mountain has solid educational credentials ... Simon Fraser University is far more than a highly publicized, though irresistibly newsworthy, episode that approached soap-opera status. And John Stubbs is much more than a respected university president brought down by the ensuing scandal ... It's doubtful that any organization -- and perhaps any top executive -- could have stickhandled with finesse the bizarre case of Rachel Marsden's convincing but apparently false complaint of sexual harassment ... (SFU's) fundamentals, enhanced during Mr. Stubbs's administration, are strong."
The Revision Process
Thanks to a task force that listened, that took suggestions and criticism not defensively, but constructively, SFU created a new, radically improved, and seemingly workable harassment policy. The harassment policy was also a major focus for the faculty association from September 1997 through January 1998.
Revision of the policy had already been underway for three years when the new task force was appointed. In large part because both faculty members were seconded, not expected to create the revised policy in addition to their normal duties, the task force both consulted a great deal and got the job done in four months.
The consultative process was not a one-time event. Each time the task force made substantive revisions, a draft was sent out for comment. This iterative process not only produced a much better policy, it also helped faculty, staff, and students feel they had been thoroughly involved and that their concerns had been considered seriously. Certainly the policy that emerged was substantively quite different from the drafts circulating early in the fall of 1997.
Where early drafts had, in the opinion of the faculty association executive, various significant problems -- including being strong on confidentiality but weak on reporting, giving too much power and discretion to individual administrators, not providing sufficient appeals, not being sufficiently precise about how documents would be handled and filed -- the final policy is much more precise and balanced.
As both Blaney and Munro very willingly acknowledge, the faculty association, with help from the lawyers provided by CAUT, played a very significant role in helping the process, highlighting problems in various drafts, and suggesting alternatives. Faculty association interventions were based on the assumption that faculty members, from time to time, will be both respondents and complainants, as well as the assumption that harassment often violates the academic freedom of the person harassed.
The university senate, the B.C. Civil Liberties Union, and a number of individual faculty members also made significant contributions. Indeed, the last few revisions -- including adding particulars to the reporting provision -- were made by the board of governors in response to motions passed by senate and memos from Senator Michael Wortis and the faculty association.
The proof, of course, is in the pudding. But the present consensus seems to be that the new policy strikes good balances (e.g., between the need for confidentiality to protect innocent individuals and the need that justice is seen to be done) and that it will prove workable.
Perhaps the university also learned something useful about process, consultation, and openness.
Highlights
Throughout the process, the faculty association spoke out strongly for protecting academic freedom and assuring natural justice. SFU's new harassment policy may not "be interpreted, administered, or applied to infringe ... academic freedom ... The frank discussion of controversial ideas, the pursuit and publication of controversial research, and the study and teaching of material with controversial content do not constitute harassment ... The policy will be interpreted, administered, and applied in conformity with the principles of procedural fairness and natural justice."
The new policy restricts the university's jurisdiction to harassment of one member of the university community by another in relation to a "university-related activity" and also to three defined types of harassment: sexual, personal, or based on a type of discrimination prohibited by the British Columbia Human Rights Act.
Harassing behavior, as the faculty association persistently insisted, must do more than offend someone; it must interfere with a "person's participation in a university-related activity or create intimidating, humiliating, or hostile work or learning environment."
Harassment of or by people employed on campus by contractors (e.g., cleaning staff, food servers, daycare workers, construction workers) is not covered by the policy. It is supposed to be covered by new contract clauses, but the board of governors, despite a clear recommendation by the task force, has not yet set a policy to mandate that.
At the faculty association's suggestion, based on CAUT's legal advice, in cases that could lead to suspension, dismissal or expulsion, the standard of proof will be "clear and convincing evidence of misconduct." Only in less serious cases, will the civil standard of a "balance of probabilities" apply.
"Frivolous, vexatious, or malicious complaints of harassment" may also lead to "disciplinary action."
SFU's new harassment policy emphasizes informal procedures and mediation. For cases that cannot be resolved informally, the new policy calls for mediation and, should that fail, for an investigator to produce a report and recommendations.
Early drafts of the new policy included both an investigator and an adjudicating committee for each case that reached formal procedures. This seemed to be excessive. Moreover, there was a perception that adjudicating committees composed of faculty, staff, and students -- however diligent, hardworking, intelligent, and well-intentioned -- would lack the expert knowledge to carry out quasi-legal procedures.
The investigator's report goes to the person who would normally be in charge of disciplining the respondent. In the case of faculty members, this would normally be the member's dean. If the dean imposes discipline on a faculty member, our recently negotiated disciplinary measures policy comes into effect, with procedures for appeal and, ultimately, for arbitration. Thus discipline of a faculty member that arises out of the harassment policy is treated like any other discipline imposed by our employer -- and is confined to a letter of reprimand, suspension, or dismissal.
All information created, gathered, received, or compiled during a complaint is confidential, but an annual report will include a "summary (including findings and reasoning) of all completed cases."
In addition to individual members of the university community, the university itself can also be a complainant under the policy. This is to allow the university to act in the interests of the community, e.g., if a complainant withdraws from the process or if a serious pattern of complaints is made against the same person.
Rick Coe is President of Simon Fraser University Faculty Association.
A complete copy of SFU's new harassment policy can be found at the Simon Fraser University Faculty Association web site http://www.sfu.ca/sfufa/. Follow the link to University Policies, then General Policies.