University professors teach hundreds of students a year, and occasionally, are subjected to inappropriate or threatening conduct by students. If that conduct occurs during the term, professors may placed in the unpleasant, and potentially dangerous situation of having to attend lectures while the harasser may be sitting in the audience.
It is not usually “the employer” doing the harassment. However, the employer does have legal obligations to ensure a work place free from harassment and unsafe working conditions. Therefore, universities may find themselves at the wrong end of a legal action when harassment and threats are directed at faculty members.
One legal avenue is occupational health and safety legislation, such as Ontario’s Occupational Health and Safety Act. That legislation has long imposed a general duty on employers to maintain safe working conditions, but more recently sections were added that deal specifically with workplace harassment and threatened violence. This create legal duties on employers to create harassment and workplace violence policies, and sets out a series of rules. The legislation also grants workers a legal right to refuse unsafe work. Section 43(3) says that a worker can refuse to work when she has reason to believe that, “the physical condition of the workplace or the part thereof in which he or she works or is to work is likely to endanger himself or herself”. So in the right circumstance, a professor could just refuse to continue lecturing if the threat is not properly dealt with.
Another forum where harassment of faculty members may be addressed is human rights legislation. There was a case recently decided by the Ontario Human Rights Tribunal dealing with harassment of a professor at Nipissing University that discusses a university’s responsibilities. The case is called Dianne Ford and Nipissing University, et al.
The professor received an offensive and threatening email from an unknown sender using a hotmail account. She was 7 months pregnant at the time, and felt especially vulnerable. She advised the administration, who expressed serious concern initially. The Dean of her faculty offered to attend her remaining classes, but the faculty member declined that offer because she felt it would be disruptive to the students. Attempts were made to locate the sender, but they were unsuccessful. Campus security were advised, but they claimed that they could not have a plain clothes officer sit in on the class because of a lack of resources and a “policy” saying that security had to be in uniform at all times. They also claimed they did not have the resources to send in a uniformed officer. The faculty member was sent to invigilate an exam by herself, which she claimed created such distress that it contributed to her baby being born premature. Later, she quit her job (having found a better position elsewhere) and filed a complaint alleging sex discrimination under Sections 5(1) and (2), and Section 7(2), of the Code. Once the term was over, and it was determined that the sender could not be confidently located, the employer closed the file.
The Tribunal said that it had to decide:
“whether the “directing mind” of the respondent (1) met its substantive obligations under the Code by appropriately responding to the harassment; and (2) met its procedural obligations under the Code by appropriately investigating and responding to the applicant’s complaint.
On the first question, the Tribunal found that the employer had responded adequately by: (1) the Dean offering to attend the lectures; (2) offering the professor a card giving her the phone number of security if an issue arose in class; (3) offering to give the professor a security alarm or cell phone to call security. The fact that the professor refused to tell security the name of the student she suspected of sending the email was found to limited security’s ability to deal with the issue more directly.
However, that was not the end of the matter. The Tribunal said it also had to consider several other factors in deciding whether the employer’s response (or lack thereof) violated the Code. Firstly, an employer need to communicate its responses to the victim in a reasonable manner. The Tribunal ruled that while initially there was good communication between employer and victim, that communication fell off to the point where the faculty member was not being regularly informed as to the employer’s investigation and actions. Secondly, the employer has to respond promptly to the complaint. The employer satisfied this test, having responded very quickly to the complaint in the early days of the process. Thirdly, the employer must respond to the complaint seriously. The Tribunal found that the Dean did take the matter very seriously, but that the security services and others in administration did not, particularly after the first few days, when communication with the faculty member faded.
Fourthly, the employer has to demonstrate its awareness that the harassment is prohibited by the Code. Again, the Tribunal found that the initial response demonstrated awareness, but that the lack of training on how to respond to harassment of faculty was faulty, and there was not a sufficient plan in place explaining how these matters are to be dealt with. The Tribunal said this:
There had been no training given by the employer in how to respond to the potential emotional outcomes of sexual harassment and/or threats of sexual assault. There was also no indication of a comprehensive plan or protocol for investigation in such circumstances.
Fifthly, there needs to be an adequate plan in place to enable complaints of harassment to be made. This requirement is now also an explicit requirement of the health and safety legislation, as noted above. Here, there was a Harassment Policy. However, it could only be activated by a faculty member if the harasser was identifiable. The deficiency of the policy was made clear here, since the harasser was unknown.
In the end, the Tribunal ruled that Nippissing violated the Code by failing to remain diligent in investigating and communicating with the faculty member throughout the investigation, and by not having in place an adequate harassment policy that explained how matters like this were to be dealt with:
I find that, in responding to the harassment, the respondent University met its substantive obligations under the Code. However, because after its initial response, the University failed to remain diligent in pursuing the matter and because of the failure to sustain communications with the applicant, I find that the University did not meet its procedural obligations under the Code.
The employer was ordered to:
* Pay $8000 to the complainant for loss arising from the violation of the Code;
* Pay $1950 for counselling and psychotherapy charges
* Pay interest on those amounts
* “review its policies and complaint procedures related to sexual harassment and ensure that they are in full compliance with human rights principles and Code provisions.”
This case provides guidance not just to universities, but to all employers who might confront harassment of its employees. What do you think of the reasoning in this case? Do you think your employer is ready to deal with a case like this?