For Information
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S.98-13
.
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SIMON FRASER UNIVERSITY
MEMORANDUM
TO: ?
J.P. Blaney, ?
FROM:
J.M. Munro,
President, Pro Tern
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Chair, Harassment Policy Revision
Task Force
SUBJ: Changes in Proposed ?
DATE: January 12, 1998
Harassment Policy
This memorandum should be read in conjunction with my memorandum of
the same date responding to Senate's discussion of the proposed revisions to the
Harassment Policy at its meeting of January 5, 1998. The purpose of this
memorandum is to draw your attention to all changes made in the proposed
revision to the Harassment Policy between the December 9, 1997 version and the
Task Force's final version dated January 12, 1998. I have not included minor
changes in wording, re-ordering of sections, or grammatical corrections.
CHANGES INCLUDED IN THE SENATE MEMORANDUM
1.
Section 2.12 concerning frivolous, vexatious, or malicious complaints has been
changed to bring it better into line with section 10.4.
2.
Appointments of Co-ordinator and Board Chair (section 5.3) are now made by the
President on the recommendation of a Search Committee chaired by the Vice
President, Academic.
3.
The identification of responsible officer in sections 9.11, 10.1, 10.2, 10.4, and 10.5
has been clarified.
4. Section 11.3 has been extended to provide for an information letter on behalf of
respondents who have been found not to have violated the Policy, at their option.
5.
The reporting section (13.1) has been expanded.
OTHER CHANGES
1. In the interests of clarity, section 4.2 has been expanded to point out that later
sections of the Policy may require release of information.
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2.
In section 12.1 the complainant and respondent now provide input to the
discipline decision by exchange of written submissions. This ensures that the
respondent will know the nature of the complainant's input and have an
opportunity to comment before a disciplinary decision is made.
3.
An addition has been made to section 12.3 to specify that disciplinary decisions for
student respondents are to follow the procedures of the University Board on
Student Discipline and the Senate Committee on Disciplinary Appeals.
4.
The annual report (section 13.1) is now sent by the Human Rights Policy Board to
the Vice President, Academic for widespread distribution. This is consistent with
the general responsibilities of the Vice President, Academic concerning this Policy.
A/AAO
J.M. Munro
cc. J. Hansen
K. Heinrich
A. Watt
.
0
S
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SIMON FRASER UNIVERSITY
MEMORANDUM
TO: ?
J.P. Blaney, ? FROM: J.M. Munro,
President, Pro Tern ?
Chair, Harassment Policy Revision
Task Force
SUBJ: Task Force Responses to
?
DATE: January 12, 1998
Senate Motions and Discussion,
Paper S. 9812
This paper presents a statement of the Task Force's responses (in italics)
concerning Senate's motions, comments, and suggestions concerning S. 98-12
during the meeting of January 5, 1998. We have also noted, in square brackets, the
sections of the proposed Policy to which the comments appear to refer. In preparing
this paper members of the Task Force have used their notes and the transcript of the
Senate discussion. Some comments were combined with others and we have not
discussed matters which were raised for clarification.
.
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There have also been other changes in the proposed Policy. A copy of the
proposed Policy as it has been sent to the Board of Governors is attached. Additions
are in bold type and deletions are in strike-through.
A. MOTIONS
The following motions were approved by Senate as recommendations for changes
to the proposed new Harassment Policy.
1. Contents of the annual report. [13.1]
It is the sense of Senate that the Harassment Policy should include a
provision -stating .
that the Human Rights Coordinator shall prepare
each year a public document containing a summary (including findings
and reasoning) of all completed cases which will have reached the
investigative stage with names and other identifiers deleted wherever
necessary so as to be consistent with the practices of the B.C. Human
Rights Commission.
We have added a sentence in seëtion' 131 requiñng summaries of
:impoañt
cases.
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2. Terminology for administrative positions and bodies. [5]
That the term "Human Rights" be replaced by "Harassment
Prevention" throughout the draft policy. (The discussion made it clear
that this view applied to the names given to various administrative
positions and bodies.)
The Task Force continues to recommend that various positions and bodies be styled
"Human Rights xxx" rather than "Harassment Prevention xxx". Our reasons are as
follows:
a.
The arguments for the change which Senate has recommended are founded on
concerns that the term "human rights" also refers to other aspects
of domestic
human rights and to more international documents and causes such as the
Universal Declaration on Human Rights and the work
of
international human
rights organizations. However, we believe that our proposed use
of
the term
"human rights" is entirely appropriate in connection with a policy which draws its
rationale from the University's responsibilities under the province's Human Rights
Code (which, incidentally, is one local manifestation of the provisions
of the
Universal Declaration on Human Rights). Our proposed use
of the term "human
rights" is the one which is important for this University as an institution.
b. The proposed alternative, "Harassment Prevention
"
, is in fact misleading. While
one objective
of
the Harassment Policy is the prevention
of
harassment, the Policy's
other purpose is to resolve harassment when it does occur. Much of the work
associated with the Policy will be directed to dealing with the consequences
of
harassment.
c.
The Task Force has considered many alternatives to our final recommendation.
If
the arguments heard at Senate for not using "Human Rights xxx" are persuasive,
we would prefer that the term "Harassment Resolution xxx" be used. This would
better reflect the responsibilities
of
those who will administer this Policy. We would
also be content with the terminology from the current Policy, "Harassment Policy
xxx".
B. COMMENTS AND SUGGESTIONS
The following comments or suggestions were made by one or more members of
Senate.
1. Add definitions of "faculty" and "student" to clarify who is eligible to be
appointed to the Board or to search committees.
University policies typically
use the terms
"faculty", "staff",
and "students" without
adding detailed definitions.
"Faculty" is
usually interpreted
to exclude anyone
2
is
.
.
holding a senior (Dean or above) administrative position. Definitions along the
lines suggested during the Senate meeting would be cumbersome.
2.
It was suggested that the Policy be written to anticipate a possible change in the
persons responsible for non-academic student misconduct matters under existing
policy (T10.03). [Definitions, page 31
It will be simpler to amend the Harassment Policy
if
changes are made in other
policies altering the responsibilities of
the Director
of
Campus Community Services
and which would imply a change in the responsible officer for students in this
Policy.
3.
A potential conflict was noted in that the Policy appeared to authorize two
responsible officers to make a decision on the investigator's report. [9 and 10]
We have made changes in sections 9.11, 10.1, 10.2, 10.4 and 10.5 in response to this
concern. ?
The old section 9.11 said that the relevant responsible officer was the
responsible officer for whichever party the investigator believed had violated the
Policy while section 10.1 referred to the responsible officer for the respondent. We
had neglected to make the language in 9.11 match the final language in section 10.
We have corrected this to make it clear that the investigator's report is always
sent
to the responsible officer for the respondent. ?
If the responsible officer for the
respondent decides that the complaint was frivolous, vexatious, or malicious
then
section 10.5 provides for a shift in responsibilities between responsible officers in
section 11 and directs the responsible officer for the complainant to consider
disciplinary action for the complainant.
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The change in section 10.5 requires a
modification
of
section 11.3. ?
In addition, we have extended the possibility of issuing
an information letter "exonerating" the respondent to all cases where it is
determined that there has been no violation
of the Policy.
4.
Senators recommended changing "frivolous, vexatious or malicious complaints
of harassment may be grounds for discipline" to stronger language. [2.12]
We have changed section 2.12 to follow one
of the changes suggested at Senate.
5.
It was suggested that the Policy should specify more clearly the criteria for
selection of the Human Rights Co-ordinator, the Chair and members of the Human
Rights Policy Board, members of search committees, and the Vice President,
Academic's choice of designate. [5]
We believe that the Policy's content in terms
of
the responsibilities
of
the various
administrative positions provides the best guidance to the qualities desired in
persons appointed to these positions.
6.
The Policy should avoid an obvious concentration of power by either having
3
4
the search committees chaired by someone other than the Vice President, Academic,
or having the Vice President, Academic make a recommendation for appointment
to the President. [5.3]
We have changed section 5.3 so that these appointments are recommended by the
Search Committee chaired. by
.
the Vice President, Academic for appointment by the
President.
7.
It was suggested that the timélimit (12 months) for the iriitiaifiling of a
complaint was too long. [6.2]
This is the time limit in the Human Rights Code and there are advantages to using
the same limit in the Policy.
8.
The investigator's lack of power to subpoena, compel participation, or take
evidence under
. . oath
.
and the lack of opportunity for cross examination was of
concern. [9]
The Policy seeks to encourage participation in its procedures. Nevertheless, it is
beyond the power
of
the University to enforce participation in the ways raised in
this comment. Cross-examination is a process suitable for a hearing-type
environment, which could be used in later appeals
of
disciplinary decisions.
However, the
Policy
does provide extensive opportunities for the parties to see and
respond to each other's positions and statements.
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9.
It was suggested that information about the cost of administering the Policy,
including the costs of investigations and redress, should
.
be .
a..part of .the.annual
report. [12.3]
The Task Force believes this interest should be accommodated outside the language
of
the Policy.
10.
The Policy does not appear to be congruent with the "United Nations Universal
Declaration of Human Rights". [various]
The Task Force has been advised that the Policy is consistent with the Human
Rights Code. It is not realistic to require that this
Policy reflect all aspects
of
the
Universal Declaration on Human Rights.
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•
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11. Preference was expressedfor an arbitration process as part Ofthe Harassment
Policy, rather than the investigation and administrative decision process. [9]
The choice of an investigation rather than an arbitration-type hearing as the main
fact-finding process in the Harassment Policy was based on several considerations.
a. The recognition that serious discipline would be appealed to an arbitration-type
hearing under employment or student policies and the desire to avoid two hearings.
b.
The likelihood that participation in a pre-discipline hearing would be incomplete.
c.
The use of the investigation process in many public- and private-sector
harassment policies.
d.
The University's previous experience with pre-discipline hearings.
12.
There was discussion on various aspects of the University's right to take the
role of the complainant.
[93]
A
complainant's interest and the University's interest may not be congruent. This
section is designed to provide a balance between the complainant's need for a
satisfactory resolution, and the University's need to deal effectively with
harassment.. situations. As stated, the provision for the University to assume the
role
of
complainant is mainly intended for cases where the respondent has
previously violated the Policy. It could also be used where the alleged violation was
serious and where the resolution appeared to have been motivated by the
complainant's, desire not to become frrther involved, perhaps because of
intimidation. Similar provisions are found in other university harassment policies.
13.
The issue of whether the Human'Rights Commission would recognize the
University's policy and procedures was raised. [various]
Section 25(2)
of the Human Rights Code gives discretion to the Human Rights
Commission to defer a case on the grounds that it is being.. dealt with. in a proceeding
authorized by statute and section 27C1)(f) gives discretion to the Human Rights
Commission to dismiss a case on the grounds that it has previously, been dealt with
under a proceeding authorized by statute. Cases dealt with under this Harassment
Policy might be so treated. However, this discretionary provision has no bearing on
how this Policy should
1
be constructed and administered "beyond the general need 'to
avoid inconsistencies with the Human Rights Code.
14.
A respondent's prior criminal record, if any, could be accessible and be used in
determining the severity of the penalty. [12.1]
.
This might be used as an'* "aggravating 6ircumstance
1
' in determining' the severity of
discipline.
15.
When the responsible officer takes the role
of
the complainant and has access to
legal advice, the respondent may be at a disadvantage. [9.3]
Section 2.8.b of the Policy reiterates the right to legal representation. Earlier drafts of
the Policy contained language providing for limited provision of legal counsel at
University expense. It was not possible to develop workable language for this.
16. The publication of the names of those found to have violated the Policy, similar
to the publication of penalties by the B.C. College of Teachers, was suggested. [12.4
and 13.1]
The Task Force thinks that the detailed reporting requirements in the revised
section 13.1 will serve to provide guidance and scrutiny concerning both the nature
of and response to harassing behaviour at the "University and' the administration
of
this Policy.
17.
It was suggested that an annual report would delay the publication of decisions
and so detract from the educational goals of the Policy. [13.1]
Section 13.1 establishes the requirement for an annual report within three months
of the end of each calendar year. Nothing in the Policy prevents the University
from reporting on individual cases once they are concluded.
J.M. Munro
cc. J
.
Hansen
K. Heinrich
A. Watt
Simon Fraser University
Harassment Policy
PROPOSED REVISION
January 12, 1998
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 which allows for the full and free participation
of all members of the University community. Harassment undermines these
objectives and violates the fundamental rights, personal dignity and integrity of
individuals or groups of individuals. Harassment is a serious offence which may be
cause for disciplinary sanctions including, where appropriate, dismissal or
expulsion.
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This Policy responds to the University's responsibility under British Columbia's
Human Rights Code to prevent harassment, and to provide procedures to handle
complaints, to resolve problems, and to remedy situations when harassment 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.
1.
DEFINITIONS
Complainant - Any person or persons who seek(s) recourse pursuant to this Policy
as someone who believes he/she has experienced harassment. The University may
also be a complainant.
Complaint -
A statement 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.
S
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January 12, 1998
Harassment -
Any behaviour which satisfies one or more of the following
definitions of harassment.
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Harassment based on a prohibited ground of discrimination -
Behaviour
directed
towards another person or persons:
a) which is abusive or demeaning; and
b)
includes a direct or indirect reference to a prohibited ground of
discrimination under British Columbia's Human Rights Code; and
c)
would be viewed by a reasonable person experiencing the behaviour as an
interference with her/his participation in a University-related activity.
As of this date, the grounds protected against discrimination by British
Columbia's Human Rights Code (R.S.B.C. 1996 c. 210) 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.
Sexual harassment -
Behaviour of a sexual nature by a person:
a)
who knows or ought reasonably to know that the behaviour is unwanted or
unwelcome; and
b)
which interferes with another person's participation in a University-related
activity; or ?
I*
c)
leads to or implies job- or academically-related consequences for the person
harassed.
Personal harassment -
Behaviour directed towards a specific person or persons:
a)
which serves no legitimate purpose; and
b)
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 harassment to have occurred as a
result of a behaviour or pattern of behaviour.
Respondent -
A person or persons against whom an allegation of harassment 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:
a)
decide whether the Policy has been violated;
b)
make recommendations or decisions regarding remedies or discipline;
c)
assume the role of complainant to initiate an investigation;
d)
initiate interim measures.
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January 12, 1998
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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 which 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 -
An activity of any type operated under University
auspices at any location. All activities on the University's two campuses are
University-related unless they are within the exclusive control of constituency
organizations.
2. PRINCIPLES
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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 harassment.
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.
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January 12, 1998
2.5 In the University community, power differences exist between or among
faculty, staff, and students. Where one person has power or authority, implied
or explicit, over another there is an increased potential for harassment 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 harassment.
Chairs, Directors, and Deans bear the primary responsibility for maintaining a
working and learning environment free from harassment. 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:
a)
All parties will be advised of the provisions of this Policy and of the
procedures available to them.
b)
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.
c) All parties must be given the opportunity to present evidence in support
of their positions and to defend themselves against allegations of
harassment.
d)
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.
e) All submissions, responses, comments, and decisions pursuant to this
Policy will be made in writing. 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.
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January 12, 1998
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2.10 This Policy is not to be interpreted, administered, or applied in such a way as to
detract from the right and obligation of those in supervisory roles to manage
and discipline employees and students, subject to managerial and instructional
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 harassment may
result in
he
grounds for 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.
3.
JURISDICTION
3.1 Under this Policy a complaint of harassment 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.
4.
USE OF INFORMATION
4.1 Allegations of harassment, particularly sexual harassment, often involve the
collection, use, and disclosure of sensitive personal information.
Confidentiality is required so that those who have been harassed will feel free
to come forward. Confidentiality is also required so that the reputations and
interests of those accused of harassment 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.
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January 12, 1998
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.
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 to appropriate
University officials on a need-to-know basis.
4.6 Any person informed of an allegation of harassment under section 4.5 will be
informed of its disposition.
4.7 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.
a) Vice President, Academic, or designate
b) Human Rights Co-ordinator and other members of the Human Rights
Office
c)
Human Rights Policy Board
d) Human Rights Advisors
e)
responsible officers
f)
mediators
g)
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.
5.3 After consulting with constituency organizations, the Vice President, Academic
will appoint a Search Committee, consisting of one faculty member, one staff
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January 12, 1998
.
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member and one student, to advise on the appointment of the Human Rights
Co-ordinator or the Chair of the Human Rights Policy Board. 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
Vice President, Academic.
5.4 The Human Rights Co-ordinator facilitates the implementation of the Policy by
selecting and training Human Rights Advisors, educating the University
community with respect to the Policy, and supervising the Human Rights
Office and its activities. The Human Rights Co-ordinator is not an advocate for
either party to a complaint. The Human Rights Co-ordinator is supervised by
the Vice President, Academic.
5.5 The Human Rights Policy Board provides policy advice to the Vice President,
Academic concerning the implementation of the Harassment Policy and carries
out other functions as provided for in the Policy. The Human Rights Policy
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Board will consist of two faculty members, two staff members, two students,
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.
5.6 Human Rights Advisors are responsible for ensuring that persons who bring
matters addressed by this Policy to their attention receive appropriate
information and support. In particular, Human Rights Advisors provide
information on the Policy and its procedures and on University services
including the Human Rights Office, Counselling, the Employee Assistance
Program, Health Services, Campus Security, and the Ombuds Office. A Human
Rights Advisor may be asked by the Human Rights Co-ordinator to serve as a
support person.
5.7 Human Rights Advisors may be nominated by any member of the University
community for consideration by the Human Rights Co-ordinator. The Human
Rights Co-ordinator will appoint approximately 50 Human Rights Advisors
across the University taking into account the diversity of the University
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January 12, 1998
community, constituency representation, and location. Appointments will be
for one or two years. Human Rights Advisors will be trained through the
Human Rights Office.
5.8 A party to a complaint who objects to the participation of a person in the
administration of this policy on grounds of conflict of interest or reasonable
apprehension of bias may inform the Vice President, Academic. A person
involved in the administration of this Policy may, on similar grounds, direct a
request to the Vice President, Academic that he/she be replaced. The Vice
President, Academic will make decisions concerning replacements required
under this section.
5.9 If a responsible officer assumes the role of complainant under section 9.3, the
Vice President, Academic will appoint another responsible officer.
6. INFORMAL PROCEDURES
6.1 Any member of the University community who believes that harassment has
occurred should discuss the matter with a Human Rights Advisor, 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 or respondent may bring a complaint to the Human Rights
Office within twelve months of the last alleged incident of harassment. A
member of the Human Rights Office will discuss the complaint fully with the
party, who will be informed of the procedures of this Policy.
6.3 The Human Rights Co-ordinator 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.
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January 12, 1998
6.5 If a complaint proceeds, the Human Rights Co-ordinator 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 at this stage.
6.6 If no resolution is reached, the Human Rights Co-ordinator 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 alleged 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
.
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whose behaviour is the subject of the complaint. The Human Rights Co-
ordinator may be asked to provide further assistance in resolving the
complaint.
7.
INTERIM MEASURES
7.1 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. Interim measures will be initiated by the responsible officer for
either the complainant or the respondent on the recommendation of the
Human Rights Co-ordinator.
8.
MEDIATION
8.1 In mediation, the parties attempt to resolve the issue(s) which led to the
complaint. Either party may make a written request for resolution through
mediation to the Human Rights Co-ordinator who will convey the request to
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the other party. Mediation requires the agreement of both parties.
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January 12, 1998
8.2 The Human Rights Co-ordinator will select an 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 Co-ordinator has no
active involvement.
9.
INVESTIGATION
9.1 Investigation is intended to be used in cases where the alleged harassment may
have had a serious impact on the complainant or respondent, where the case 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 If mediation has not been attempted or has failed, a written request for an
investigation may be made to the Chair of the Human Rights Policy Board by
either party. Such a request must be submitted within three weeks after the
end of mediation or within twelve months of the last incident of alleged
harassment. This time limit may be waived by the Chair of the Human Rights
Policy Board in exceptional circumstances based on a submission made by
either party and an opportunity for the other party to comment on the
submission. If the request for an investigation is made by the complainant, the
request will contain a full account of the alleged harassment. If the request for
an investigation is made by the respondent, it will contain an explanation of
why the respondent 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
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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 harassment.
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,
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meeting without the Chair, may be made. The appeal must be made within
three weeks of the refusal to authorize an investigation. Each party will have
the opportunity to present submissions on this matter and to comment on each
other's submission. 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 may 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.
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 that 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,
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the investigator may either proceed with the investigation or recommend to
whoever authorized the investigation that the complaint be dismissed. The
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January 12, 1998
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 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 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.
_for the party whom the investigator believes has violated the
Policy.
9.12 The investigator may recommend that the investigation be adjourned, stayed, or
terminated. The decision on this recommendation will be made by whoever
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authorized the investigation after considering submissions, 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 which could result in
suspension, dismissal or expulsion require clear and convincing evidence of
misconduct.
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10.3 The decision, with reasons, on whether the Policy has been violated will be
communicated to both parties 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 the Vice President to carry out this
review.
10.5 If the responsible officer for the respondent finds that the allegation 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 the Policy has been violated by the respondent, the responsible officer for the
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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. A recommendation for remedy will be sent by the responsible
officer 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
it is
the original respondent who has experienced a violation of this Policy, the
provisions in section 11.2 shall be applied for the respondent. In addition, 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.
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January 12, 1998
12. DISCIPLINE ?
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12.1 If the Policy has been violated by the respondent, the responsible officer for the
respondent will, after meeting with the complainant and respondent together,
decide -en appropriate discipline.
Before making her/his disciplinary decision,
the responsible officer for the respondent will provide the complainant and
respondent with an opportunity to make submissions concerning the
appropriate discipline. Such submissions will be made in writing within time
limits specified by the responsible officer for the respondent. Each party will be
provided with a copy of the other party's submission and will have an
opportunity to reply to that submission. After receiving and considering each
party's submission and reply, the responsible officer for the respondent will
make a In making
disciplinary decisions or recommendation., the responsible
officer This will follow the concept of progressive discipline and will take
the
following
the matters into consideration:
a)
The severity of the offence;
b)
Whether the offence was intentional or unintentional;
c)
Whether the offence was an isolated incident or involved repeated acts;
d)
Mitigating or aggravating circumstances affecting either party;
e)
Whether there was an imbalance in power between the parties;
f) The respondent's record at the University;
g)
Sanctions applied in similar cases.
12.2 The range of disciplinary sanctions may include, but is not limited to: a letter of
reprimand, suspension, expulsion and dismissal. In addition, the respondent
may be required to participate in a human rights awareness program. It may
also be ordered that one party cease to have any contact with the other party.
This decision will normally be made within six weeks of the final decision that
the policy was violated.
12.3 The application of disciplinary sanctions and any appeals therefrom will utilize
the disciplinary procedures appropriate for the person according to University
policies and/or collective or framework agreements.
For student respondents
the procedures contained in Policy T10.03 concerning the University Board on
Student Discipline and Policy T10.04 concerning the Senate Committee on
Student Discipline Appeals will be used.
Where there are no established procedures, the Vice
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January 12, 1998
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President, Academic will create procedures that are analogous to those
available for employees.
12.4 Each party 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.
13.
REPORTING
13.1 The Human Rights Co-ordinator is responsible for preparing and distributing
an annual report which 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 Co-
ordinator. 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 or discipline.
Summaries of important cases
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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 approved by the Human Rights Policy
Board and forwarded to the Vice President, Academic who will distribute it
distributed
widely.
14.
REVIEW
14.1 This Policy will be formally reviewed every three years.
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