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CAUT Bulletin Archives

January 2000

Harassment Decision in British Columbia Could Mean Cold Shoulder for Female Students

Sam Black
The recent decision of the B.C. Human Rights Tribunal finding Professor Donald Dutton of UBC responsible for sexual harassment shows there are officials in British Columbia who do not understand the difference between a university and a factory for handing out degrees and who equate sexual harassment with activities considered perfectly normal at some of the world's great universities.

Regrettably, the people who will be harmed most by these provincial attitudes are research students in this province -- probably female students.

In my first year as a graduate at the University of Cambridge I discovered much of the instruction took the form of tutorials -- one on one contact between student and instructor.

Many of these tutorials were conducted in people's homes or college bedrooms. The faculty also reckoned it was their duty to open their homes to students. Over meals, candles were burned, and wine was drunk. At Cambridge, the talk with faculty would frequently turn personal in a variety of contexts.

Like your average Canadian undergraduate, I had never seen anything like it. Students studying in Canada are lucky if they get the kind of access to faculty at any point in their careers which students at top U.K. universities routinely acquire from the moment they arrive.

But how do the English do it? For surely this intimacy must be a breeding ground for every kind of sexual harassment, intergenerational perversion, and abuse of power imaginable.

Some light may be shed on this question by another one. How many cases of sexual harassment could not be resolved amicably and were sent for external adjudication at Simon Fraser University last year? If you guessed between 20 and 100, you have lots of company. The actual figure is zero.

The English get away with deliberately fostering intimacy as part of their university culture not because they are more civilized and refined than ourselves, but because they are probably a lot like ourselves.

None of this is meant to minimize the seriousness of genuine harassment or sexual harassment. The penalties that attach to a finding of guilt should be severe. And they are. An academic found responsible for harassment suffers professional death. Even if they keep their job, a branding for harassment is a lasting stigma. In people's minds it suggests an individual in the company of gropers, grades-for-sex traders and other reprobates. Its reputational impact resembles a conviction for sexual assault.

The Human Rights Tribunal accuses both Dutton and the complainant Fariba Mahmoodi of being liars. How then could the tribunal establish Dutton's guilt? Simple, it found the version of events on which both parties more or less agreed was an instance of sexual harassment. The parties met twice at Dutton's home. What took place there? The tribunal seems shocked by the fact "the meetings were much lengthier than required for any of the stated academic business." (215)

In a scolding tone tribunal member Frances Gordon remarks that, "the lighting was low and that candles were burning in the living room on both evenings." (220) But the real clincher for her -- "the most telling evidence" -- was that Dutton at one point describes missing physical contact with his wife:

"Whether the comments were about his wife is unimportant, the very fact that he discussed with Mahmoodi his physical needs in relation to a member of the opposite sex establishes that he led the discussion into clearly personal and sexually charged areas." (226) On this basis the tribunal finds that Dutton had created a "sexualized environment."

In its view, the construction of a sexualized environment suffices for sexual harassment -- provided Mahmoodi did not consent to the creation of that environment, and Dutton should have known it was unwelcome (conditions the tribunal also claims were satisfied).

The tribunal did not find Dutton made a pass at Mahmoodi, or indeed laid a fin-ger on her. Nor did he threaten to withhold an academic advantage if she did not initiate sex. Nor did he even ask to have sex with her. Where the tribunal is concerned, you can sexually harass someone without doing any of these things. Mentioning that you miss physical contact with your wife is about all it takes, provided you meet with a student at your home, have failed to extinguish your fireplace and offer the student food.

But perhaps Dutton was merely preparing to get fresh with Mahmoodi, and this was part of the modus operandi of a polished Casanova? Sensibly, the tribunal does not conclude this. For at the tribunal hearing seven former students testified they had visited Dutton's home under similar circumstances without incident. These women testified, that is to say, on Dutton's behalf. By contrast, no one testified that Dutton attempted to seduce students at his home.

In its ruling, the tribunal seems to have followed the bad example set by Patricia Marchak -- then dean of the faculty at arts at UBC who found Dutton responsible for professional misconduct.

Part of the grounds for Marchak's decision held that, "there was no professional or academic need to invite the student to your home: your office is the appropriate location for professional meetings with students." In her view, this "gave the student the impression that an intimate relationship was developing."

These practices are now grounds for professional censure at UBC.

The notion that there can be sexual harassment without sex, an attempt at sex, or even a request for sex is bizarre enough. But the "wrongs" identified in these decisions boggle the mind.

Having a research student to your home is academic misconduct, and grounds for suspicion of sexual harassment. Giving the impression an "intimate relationship" is developing between research student and supervisor is more of the same. A failure to spend all of one's time talking about academic matters is a further infraction.

The edifice these officials are constructing is not a university. It is nothing but a factory for conferring diplomas on faceless students who have coughed up the money for tuition.

Many of the topics that preoccupied the press -- the three years wait for the judgment, the standard of proof, the probative worth of the testimony -- while raising legitimate issues have also missed the crux of the matter.

If sexual harassment is what the B.C. Human Rights Tribunal says it is, then there is ample evidence that Dutton is guilty as charged, and would be found guilty under any standard of proof. So would most faculty in the world's foremost universities. So would many faculty in British Columbia universities who currently take on research students.

If the matter were not of the utmost importance the parochialism evinced by both the UBC administration and the human rights tribunal would be laughable. But these judgments have the potential to wreak severe harm on the universities of this province (to say nothing of individual faculty members).

At Simon Fraser University we thought that by drawing up a sensible harassment policy and hiring a sophisticated policy coordinator, we could get on with the work of educating people. Dutton would certainly not have been found responsible under the SFU policy (just as he was not found responsible for sexual harassment under the UBC policy).

But the tribunal's ruling has shown there is nowhere to hide. They will come after you even if your home institution finds you above reproach. The university can then be held financially liable for the behavior of an employee who has committed no harassment under their policy, and compelled to dole out tax dollars to the complainant (as happened to UBC).

If the Dutton case sets a pattern for future rulings, the consequences in this province are easy to anticipate. Professors will simply pull back from their senior undergraduate and graduate students. Encounters will be restricted to the office and no conversation will stray beyond a narrow academic focus. At a stroke, many of the most important roles associated with the supervision of research students will be eliminated.

For example, supervisors will no longer provide emotional support and guidance for senior students who suffer crises of confidence or upheavals in their personal lives. Nor will supervisors offer to students whatever wisdom they have acquired on matters not related to strictly "academic business."

The individuals who will be most harmed by this deep chill are, of course, senior female research students. It is a sad effect of the tribunal's decision that it will penalize precisely the class of persons it seeks most to protect.

I am not suggesting there is no blame to be passed around in the Dutton-Mahmoodi affair. There seems to have been numerous irregularities in their dealings. But the decision and its grounds have consequences that go beyond the personalities involved. Women who aspire to academic excellence and equal treatment should be worried by this trend.

Sam Black is an assistant professor of philosophy at Simon Fraser University and vice-president of the British Columbia Civil Liberties Association.

The full text for the Dutton decision from the B.C. Human Rights Tribunal is available at HTML versions of Tribunal documents are not official versions.

The views expressed are those of the author and not necessarily those of CAUT.