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S.03-30

. ?

SIMON FRASER UNIVERSITY

University Secretariat

MEMORANDUM

To: ?

Senate

From:

Alison Watt, Director, University Secretariat

Subject: Revised Policy: GP 18-

Human Rights

Policy

Date: ?

18 February, 2003

FOR

this policy should be forwarded to

Senate

for information at

its

meeting on

March

3, 2003. This policy revision

will

go to the Board of Governors for

approval in April, 2003.

aj'^- 

Osborne

B. Taylor

Attachment

3186 Strand Hall Simon Fraser University, Burnaby, B.C.

Phone: 604

291-3495

Fax: 604 2914860

17

-.^

SIMON FRASER UNIVERSITY

Office of the Vice-President, Academic

MEMORANDUM

TO: Alison Waft, Director ?

FROM: John Waterho

ii^e 

University Secretariat

Vice-Presidentfr6ádemic

RE: GP

18 Human

Rights Policy ?

DATE: January 27,

40/

Please find attached a revised GP 18, the Human Rights Policy. I request that

this policy

be presented to Senate for information.

This policy was considered by a review committee that reported to me April 15, 2002.

Two rounds of consultation and legal advice resulted in a number of useful revisions

that have been incorporated into this draft. The most significant modification to the

policy is the inclusion of changes that make it consistent with the B.C. Human Rights

Code.

Enclosure

JHW:js

Simon Fraser University

J R

Fka

Policies and Procedures

GP18

REVISION (amendments underlined)

January 23, 2003

HUMAN RIGHTS POLICY

PREAMBLE

Simon Fraser University promotes teaching, scholarship and research, and the free and

critical discussion of ideas. The University is committed to providing a working

and learning environment that allows for the full and free participation of all members of

the University community. Discrimination undermines these objectives, violates the

fundamental rights, personal dignity and integrity of individuals or groups of individuals

and may require remedial action by the University.

Harassment is a form of discrimination that is

p rohibited under this Polic

y and ma

y result

in the imposition of disciplinary sanctions including, where appropriate, dismissal or

permanent suspension.

This Policy responds to the University's responsibility under the

Human Rights Code of

British Columbia

("the Human Rights Code") to prevent discrimination, to provide

procedures to handle complaints, to resolve problems, and to remedy situations when

violation of this Policy occurs. The University will offer educational and training

programs designed to support the administration of this Policy and to ensure that all

members of the University community are aware of their responsibilities under the

Human Rights Code and this Policy.

1.DEFINITIONS

"Complainant " -

Any person who believes that he/she has experienced discrimination

and who seeks recourse pursuant to this Policy. The University may also be a

complainant.

"Complaint" -

A statement of facts alleged by a complainant seeking recourse pursuant

to this Policy.

"Constituency organizations" -

Administrative and Professional Staff Association,

CUPE 3338, Polyparty, Simon Fraser Student Society, Simon Fraser University Faculty

Association, Teaching Support Staff Union.

"Discrimination" -

The Universit y

expressly adopts the definition of discrimination

articulated by the Supreme Court Of Canada

, i.e. intentional or unintentional differential

treatment for which there is no

bona

fide

and reasonable justification. Such

discrimination imposes burdens, obligations, or disadvantages on specific individuals or

groups as defined by the Human

Rights Code.

Currently,

"the grounds of discrimination"

prohibited by the

Human Rights Code

are

age, race, colour, ancestry, place of origin, political belief, religion, marital status, family

status, physical or mental disability, sex, sexual orientation, and, in the case of

employment, unrelated criminal convictions. "Age" means an age of 19 years or more

and less than 65 years.

The University is under a legal duty to accommodate individuals or groups protected

from discrimination under the

Human Rights Code

unless it would create undue

hardship to the University.

"Harassment" -

Any behaviour that satisfies one or more of the following definitions of

harassment:

(a) Harassment based on a prohibited ground of discrimination.

Behaviour directed

towards another person or persons that:

(i)

is abusive or demeaning; and

(ii)

includes a direct or indirect reference to a prohibited ground of discrimination

under British Columbia's Human Rights Code; and

(iii)

would be viewed by a reasonable person experiencing the behaviour as an

interference with her/his participation in a University-related activity.

(b)

Sexual harassment.

Behaviour of a sexual nature by a person:

(i)

who knows or ought reasonably to know that the behaviour is unwanted or

unwelcome; and

(ii)

which interferes with another person's participation in a University-related

activity; or

(iii)

leads to or implies job- or academically-related consequences for the person

harassed.

(c)

Personal harassment.

Behaviour directed towards a specific person or persons that:

(i)

serves no legitimate purpose; and

(ii)

would be considered by a reasonable person to create an intimidating,

humiliating, or hostile work or learning environment.

"Reasonable person standard" -

Whether or not a reasonable person in roughly the

same position as the complainant would judge discrimination to have occurred as a result

of another person's behaviour or pattern of behaviour.

'See B.0 v. BCGSEU 1199913 S.C.R. 3 ("Meiorin")

"Respondent" -

A person or persons against whom an allegation of discrimination has

been made pursuant to this Policy.

"Responsible officer" -

The University official who may carry out one or more of the

following roles within the terms of this Policy:

(i)

decide whether the Policy has been violated;

(ii)

make recommendations or decisions regarding remedies or discipline;

(iii)

assume the role of complainant to initiate an investigation;

(iv)

initiate interim measures.

The responsible officers in a particular case are determined by the University positions

of the complainant and respondent. For members of the Faculty Association bargaining

unit and other academic staff the responsible officer is the appropriate Dean or the

University Librarian; for students the responsible officer is the Director of Campus

Community Services; for staff the responsible officer is the appropriate Dean or

Vice President or the University Librarian; for Deans and Directors the responsible

officer is the appropriate Vice President; and for Vice Presidents, the President is the

responsible officer. The Vice President Finance and Administration will be the

responsible officer for members of units that report directly to the President.

"University community" -

All students and employees of the University, all research

grant and research contract employees, and any researcher, instructor or student spending

an extended period of time at the University in an academic capacity.

"University-related activity" -

Any type of activity operated under University auspices

at any location. All activities on the University's campuses are University-related unless

they are within the exclusive control of constituency organizations or an

organization/group external to the University.

PRINCIPLES

2.1 ?

All members of the University community have the responsibility to respect the

rights of others.

2.2 ?

This Policy will not be interpreted, administered, or applied to infringe the

academic freedom of any member of the University community. Academic

freedom is the freedom to examine, question, teach, and learn and it involves the

right to investigate, speculate, and comment without reference to prescribed

doctrine as well as the right to criticize the University and society at large. 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 discrimination.

2.3 ?

All members of the University community will be treated equitably under this

Policy. All matters arising under this Policy will be dealt with in a fair, unbiased

and timely manner.

2.4 ?

This Policy is not intended to interfere with ordinary social or personal

relationships among members of the University community.

2.5 ?

In the University community, power differences exist between or among faculty,

staff, and students. Where one person has implied or explicit power or authority

over another, there is an increased potential for discrimination issues to arise.

2.6

Members of the University community have a responsibility for ensuring that the

University's working and learning environment is free from discrimination.

Chairs, Directors and Deans bear the primary responsibility for maintaining a

working and learning environment free from discrimination. They are expected to

act on this responsibility whenever necessary, whether or not they are in receipt of

a complaint. The expertise of the Human Rights Office is available to all members

of the University community.

2.7 ?

Efforts at informal resolution will normally be made first in dealing with a

complaint.

2.8 ?

This Policy will be interpreted, administered, and applied in conformity with the

principles of procedural fairness and natural justice. In particular:

All parties will be advised of the provisions of this Policy and of the procedures

available to them under the terms of this Policy.

Any complainant who wishes the University to assist in the resolution of a

complaint through mediation or investigation must be prepared to be identified to

the respondent.

All parties must be given the opportunity to present evidence in support of their

positions and to defend themselves against allegations of discrimination.

All parties may be represented or accompanied by legal counsel, a support

person, and/or a representative of their constituency organization throughout the

procedures set out in this Policy.

All complaints that proceed beyond the informal consultation phase must be

submitted in writing. All submissions, responses, comments, and decisions

pursuant to this Policy will be made in writing if the complaint proceeds beyond

mediation. Where a party has the opportunity to make a submission, response or

comment, it shall be provided within two weeks.

2.9 Those responsible for interpreting, administering, and applying this Policy will use

a reasonable person standard.

2.10 This Policy is not to be interpreted, administered, or applied in such away as to

detract from the right and obligation of those in supervisory roles to manage and

discipline employees and students in accordance with collective and framework

agreements or applicable university policies and procedures.

2.11 Members of the University community have an obligation to participate in

procedures under this Policy. It is a ground for discipline for either party to refuse

to participate in an investigation without reasonable justification.

2.12 Frivolous, vexatious, or malicious complaints of discrimination may result in

discipline.

2.13 Either party to a complaint may object to the participation of a person in the

administration of this policy on grounds of conflict of interest or reasonable

apprehension of bias. Such objection should be submitted in writing to the Chair

of the Human Ri2hts Polic y

Board whose decision will be final. Where the

objection relates to the p artici p

ation of the Chair of the Board, the Vice-Chair will

make the determination.

JURISDICTION

Under this Policy, a complaint of discrimination may only be made by a member

of the University community against another member of the University

community. Such a complaint must pertain to University-related activities.

USE OF INFORMATION

4.1 ?

Allegations of discrimination, particularly of sexual harassment, often involve the

collection, use, and disclosure of sensitive personal information. Confidentiality is

required so that those who may have experienced discrimination, including

harassment, will feel free to come forward. Confidentiality is also required so that

the reputations and interests of those accused of discrimination are protected.

However, either party may discuss the case in confidence with her/his supervisor,

support person, and/or representative of her/his constituency organization.

4.2 ?

Subject to any limits or disclosure requirements imposed by law or required by

this Policy, any and all information, oral and written, created, gathered, received

or compiled through the course of a complaint is to be treated as confidential by

both the respondent and complainant, their representatives, witnesses, and the

officials designated by this Policy.

4.3 ?

All recorded personal information will be treated as "supplied in confidence" for

the purposes of compliance with the

Freedom of Information and Protection of

Privacy Act of B.C.

and responding to access requests under that legislation.

4.4 The office of record for all records documenting cases under this Policy is the

Human Rights Office.

4.5

Information concerning a complaint may be provided by the Human Rights

Coordinator to appropriate University officials on a need-to-know basis. Any

person informed of an allegation of discrimination under this section will be

informed of its disposition. ?

4.6 ?

Any person breaching confidentiality may be subject to disciplinary sanction or

other appropriate action.

5. ?

ADMINISTRATION

5.1 ?

The administration of this Policy is conducted by the following persons or groups.

Vice President, Academic, or designate

Human Rights Coordinator and other members of the Human Rights

Office

Human Rights Policy Board

responsible officers

mediators

investigators

5.2 ?

After receiving the applications of interested individuals and consulting with

constituency organizations, the Vice President, Academic will appoint a Human

Rights Policy Board taking into account the diversity of the University

community. Amongst its responsibilities, the Board will serve as the Search

Committee for the Human Rights Coordinator position. The Vice President,

Academic will be the Chair of the Search Committee. The Committee will seek

applications from interested individuals, consult with constituency organizations

and recommend a candidate for appointment by the President.

5.3 ?

The Human Rights Coordinator facilitates the implementation of the Policy by

educating the University community with respect to the Policy, and supervising

the Human Rights Office and its activities. The Human Rights Coordinator is not

an advocate for either party to a complaint. The Vice President, Academic,

supervises the Human Rights Coordinator.

5.4 ?

The Human Rights Policy Board provides policy advice to the Vice President,

Academic concerning the implementation of the Human Rights Policy and carries

out other functions as provided for in the Policy. The Human Rights Policy Board

will consist of three faculty members, three staff members, three students (atleast

one graduate and one undergraduate), and a Chair. Appointments of staff and

faculty will normally be for a three-year term and student appointments will be

for one-year terms. The length of terms may be modified to establish a rotation of

membership. The quorum for the Human Rights Policy Board is four members.

To provide for possible absence of its Chair, the Board will elect a Vice Chair.

Members of the Board must be advised of their responsibilities as set out in the

Information Policy (110.04)

and the

Confidentiality Policy (110.10).

. ?

5.5 ?

Where a determination of reasonable apprehension of bias or conflict of interest

has been made under section 2.13, the Vice President, Academic will make

decisions concerning any replacement that may be required.

5.6 ?

If a responsible officer assumes the role of complainant under section 9.3, the

Vice President, Academic will appoint another responsible officer for the purpose

of administering this Policy.

6. INFORMAL PROCEDURES

6.1 ?

Any member of the University community who believes that he/she may have

experienceddiscrimination should discuss the matter with a member of the

Human Rights Office, or the person holding an administrative position as head of

a unit in which the concern has arisen.

6.2 ?

A complainant may bring a complaint to the Human Rights Office within twelve

months of the last alleged incident of discrimination. A member of the Human

Rights Office will discuss the complaint fully with the complainant, who will be

informed of the procedures of this Policy.

6.3

The Human Rights Coordinator may reject a complaint on the grounds that it is

. ?

frivolous, vexatious, malicious, lies outside the jurisdiction of this Policy, or is

beyond the time limits for laying a complaint. This decision must include the

reasons for the decision and may be appealed to the Chair of the Human Rights

Policy Board. The Chair's decision will be final.

6.4

A complainant will be informed of internal avenues for redress or resolution.

Complainants who decide to pursue redress or resolution under other internal

University procedures (e.g., grievance procedures under a collective agreement)

may not use this Policy.

6.5 ?

If a complaint proceeds, the Human Rights Coordinator or another member of the

Human Rights Office will begin an informal inquiry. After receiving the consent

of the complainant, the person responsible for the inquiry may discuss the

complaint with the respondent in order to seek a mutually acceptable resolution.

The complainant will not necessarily be identified to the respondent during an

informal inquiry.

6.6 ?

If no resolution is reached through an informal inquiry, the Human Rights

Coordinator or another member of the Human Rights Office will explain the

options for proceeding further to both parties. The complainant may be identified

to the respondent during this explanation and will be identified if the complaint

proceeds further.

6.7 ?

Complaints involving allegations of personal harassment may be dealt with using

the informal procedures of section 6 of this Policy but will not use the procedures

set out in sections 8 and 9. If informal procedures have not been successful, the

complaint should be directed to the supervisor of the person whose behaviour is

the subject of the complaint. The Human Rights Coordinator may be asked to

provide further assistance in resolving the complaint.

INTERIM MEASURES

It may be necessary that interim measures be taken while a complaint is being

resolved, investigated or decided. Such measures will be precautionary, not

disciplinary. The responsible officer for either the complainant or the respondent

may initiate interim measures on the recommendation of the Human Rights

Coordinator.

MEDIATION

8.1 ?

In mediation, the parties attempt to resolve the issue(s) that led to the complaint

through an agreement reached between the parties with the assistance of a neutral

third party. Either party may make a written request for resolution through

mediation to the Human Rights Coordinator who will convey the request to the

other party. Mediation requires the agreement of both parties.

8.2 ?

The Human Rights Coordinator will either act as mediator or select another

experienced mediator. The mediator will inform the parties of the procedures to

be followed. Both the mediator chosen and the format of the mediation procedure

must be acceptable to both parties. Normally, mediation will begin within three

weeks of the selection of the mediator.

8.3 ?

Mediation proceedings are confidential. All communications made by each party

during mediation are made without prejudice.

8.4 ?

A mediated resolution of the complaint results in a written agreement setting out

the terms of the resolution. If a proposed resolution involves the University, the

University must also agree to the resolution.

8.5 ?

Once a case goes beyond mediation, the Human Rights Coordinator has no active

involvement in the case.

INVESTIGATION

9.1

Investigation will be used in complaints where the alleged discrimination may

have had a serious impact on the complainant or respondent, where the complaint

is important to the goals of the University, or where the respondent has refused to

participate in earlier efforts to deal with the complaint.

9.2 ?

A written request for an investigation may be made to the Chair of the Human

Rights Policy Board by either party if mediation has not been attempted or has

failed. Such a request must be submitted within three weeks after the end of

mediation or within twelve months of the last incident of alleged discrimination.

The Chair of the Human Rights Policy Board may waive this time limit

Board in exceptional circumstances based on a submission made by either party

after an opportunity for the other party to comment on the submission. If the

complainant makes the request for an investigation, the request will contain a full

account of the alleged discrimination. If the respondent requests an investigation,

the request must explain the reasons of he/she seeks an investigation.

9.3 ?

Even if the complainant and respondent have reached a resolution through

informal procedures or mediation, a responsible officer may decide to assume the

role of complainant in a case in order to initiate an investigation. This provision

will be subject to the criteria set out in section 9.1 of this Policy and is normally

intended for cases involving a respondent who has previously been the subject

of substantiated complaints of discrimination.

9.4 ?

If more than one complaint has been made about a respondent, the Chair of the

Human Rights Policy Board may decide that the complaints will be investigated

together. Each party will have the opportunity to make submissions on this matter

and to comment on the other's submission.

9.5 ?

The Chair of the Human Rights Policy Board has power to authorize or refuse to

authorize an investigation; this decision will be guided by the criteria stated in

section 9.1. If the Chair of the Human Rights Policy Board refuses to authorize an

investigation, he/she will give reasons for this decision.

9.6 ?

When a request for an investigation has been refused by the Chair of the Human

Rights Policy Board, a direct appeal to the Human Rights Policy Board, meeting

without the Chair, may be made. The appeal must be made within three weeks of

the Chair's refusal to authorize an investigation. The appellant will make an initial

submission; the other party may make a response to which the appellant will have

a right of reply. After consideration of the reasons for the request for an

investigation, the decision of the Chair of the Human Rights Policy Board, and

any submissions and comments from the parties, the Human Rights Policy Board

will decide whether or not to authorize an investigation.

9.7

When an investigation is authorized, the Chair of the Human Rights Policy Board

will appoint an experienced investigator with expertise in administrative law who

is external to the University. The investigator will be provided with terms of

reference for the investigation, a protocol for conducting the investigation and a

timeline for completing the investigation, normally within two months.

9.8 ?

The investigation will normally commence within three weeks of its

authorization. The investigator will examine the complainant, respondent, and

such other persons and/or documents as he/she considers may have or contain

relevant information pertaining to the complaint.

9.9 ?

If the complainant or the respondent refuses to cooperate with the investigator, the

investigator may either proceed with the investigation or recommend to whoever

authorized the investigation that the complaint be dismissed. The person who

authorized the investigation will make a decision concerning this recommendation

and may direct that the investigation continue.

9.10 The investigator will prepare a draft report thatconforms with the legislative

requirements of the

Freedom of Information and Protection of Privac y Act of

B.C.

and send it to each party, first to the complainant, and then to the respondent

together with the comments of the complainant. A copy of the respondent's

response will be sent to the complainant for comment. The investigator will then

prepare a final report that includes an opinion on the facts of the case, disputed

and undisputed, and whether, on a balance of probabilities, there has been a

violation of the Policy. The final report will normally be completed within four

weeks of the receipt of the last response to the draft report.

9.11 The report of the investigator will be sent to the Chair of the Human Rights Policy

Board who will send it to the parties and to the responsible officer for the

respondent.

9.12 The investigator may recommend that the investigation be adjourned, stayed, or

terminated, or otherwise settled with the agreement of the parties. The decision on

this recommendation will be made by whoever authorized the investigation after

considering submissions on the recommendation, if any, from each party.

10. DECISION

10.1 When the responsible officer for the respondent receives the investigator's report

he/she will give each party an opportunity to respond. Each party may comment

on the other's response. Following this, the responsible officer for the respondent

will determine whether or not a violation of the Policy has occurred.

10.2 In reaching a decision on whether the Policy has been violated, the responsible

officer for the respondent will use a standard of proof corresponding to the civil

burden of proof on a balance of probabilities. Allegations that could result in

suspension, dismissal or permanent suspension require clear and convincing

evidence of misconduct.

11-

10.3 The decision, with reasons, on whether the Policy has been violated will be

0 ?

communicated to both parties and to the Chair of the Human Rights Policy Board

within four weeks of receipt of the last response.

10.4 If the responsible officer for the respondent does not accept the opinion of the

investigator about whether or not the Policy has been violated, either party may

request that a Vice President review the decision. The Chair of the Human Rights

Policy Board will select a Vice President to carry out this review.

10.5 If the responsible officer for the respondent finds that the complaint was

frivolous, vexatious or malicious he/she will carry out the procedures specified in

section 11 for the respondent and the responsible officer for the complainant will

consider disciplinary action for the complainant.

11. REMEDIES

11.1 If there is a finding that this Policy has been violated, the responsible officer for

the complainant will receive the decision and the investigator's report and will

meet with the complainant.

11.2 The complainant may request that measures be taken to correct damage done to

her/his career development, academic progress, physical or emotional health,

. ?

reputation or finances. The range of remedies may include, but is not limited to:

an apology, compensation for professional or academic losses, or reinstatement.

The responsible officer for the complainant will send a recommendation for

remedy to the appropriate Vice President for decision. The complainant will be

given an opportunity to comment on the proposed remedy before a final decision

is made. Academic remedies must follow normal academic appeal processes;

requests under these processes will be accompanied by information from the

responsible officer.

11.3 In cases where it is determined that there has not been a violation of the Policy the

University will, if requested to do so by the respondent, issue a statement that

there was no violation of the Policy by the respondent.

12 CORRECTIVE MEASURES

In cases where it is determined that the discrimination

p rovisions of this Polic

have been breached, the responsible officer for the complainant may recommend

to the Vice President that corrective measures, such as changes in existing

p olicies. nrocedures and p

ractices, be out in place to avoid re

p etition of the

breach.

13.

DISCIPLINE

13.1 Where there is a finding of harassment based on a prohibited ground of

discrimination or sexual harassment by a member of the University community,

the responsible officer for the respondent will decide on appropriate discipline.

13.2 Where the respondent is covered by a collective agreement or framework

agreement with a bargaining unit, any discipline will be imposed consistent with

the terms of that agreement.

13.3 Where the respondent is a student, the responsible officer will, after taking all the

circumstances of the case into consideration, make a recommendation regarding

discipline to the President. At that point, the provisions of T10.03 Academic

Dishonesty and Misconduct Procedures. section 6-10 will apply.

13:4 If the respondent is not covered by either section 13.2 or 13.3 of this Policy, the

responsible officer will create an analogous process, including a right of appeal.

13.5 Each party and the chair of the Human Rights Policy Board will be informed of

the final decision. The final decision and the report of the investigator will be

placed in the appropriate personnel file or student file of the party found to have

violated the Policy.

14. REPORTING ?

14.1 The Human Rights Coordinator is responsible for preparing and distributing an

annual report that will cover a calendar year and be available no later than March

31st of the following year. This responsibility requires that information on activity

under this Policy be collected by the Human Rights Coordinator. The annual

report will summarize the activities of the Human Rights Office in administering

this Policy and will provide information on the nature of complaints, problem-

solving, mediation activities, investigations, and decisions involving remedies,

corrective action or discipline. A summary (including findings and reasoning) of

all completed cases that are resolved after an investigation will be included. The

report will also contain an assessment of progress towards achieving the

objectives of the Policy as described in the Preamble. This annual report will be

reviewed and commented on by the Human Rights Policy Board and forwarded to

the Vice President, Academic who will distribute it widely.

15.

REVIEW

This Policy will be formally reviewed at least every five years.

16.

INTERPRETATION

III,

Questions of interpretation or application of this policy shall be referred to the

President, whose decision shall be final.

APPENDIX A

HUMAN RIGHTS POLICY BOARD

Chair: appointed by the Vice President, Academic for a 3 year term

Three Faculty Members appointed by the Vice President, Academic for 3-year terms

Three Staff Members appointed by the Vice President, Academic for 3-year terms

Three Student Members appointed by the Vice President, Academic for 1-year terms

The Board will elect a Vice-Chair annually for a term of one year.

The Board will meet once each semester and at the call of the Chair.

Terms of Reference

To provide policy advice to the Vice President, Academic concerning the

implementation of the Human Rights Policy.

To consider appeals from a decision made by the Chair of the Human Rights Policy

Board that a complaint not proceed to investigation. The Committee will meet without

the Chair to consider such appeals.

.10

To review and comment on the annual calendar year report of the Human Rights

Office and to transmit it to the Vice President, Academic by March 31st of the

following year.

The Human Rights Policy Board is also available as an advisory resource for the

Human Rights Coordinator.

I',