Mark Jones, Concerns about the Proposed Revisions to Queen’s Human Rights Policy (29 March 2011)

Memo originally sent on 20 March 2011 to the Queen’s Senate Faculty Caucus and QUFA:

The Senate Agenda for 24 Mar. 2011 includes a Notice of Motion (for approval by Senate in April) of a revised “Human Rights Policy and Procedure: Harassment, Discrimination, and Accommodation,” with a “Final Draft” of the revised policy document attached in Appendix H. I submit the following concerns with this “Final Draft” to the Senate Faculty Caucus and QUFA for discussion.

This “Final Draft” of the revised policy is referred to below as the “revised Policy” or “Final Draft.” All citations are by section number and refer to the version in Appendix H.

1. The definition of “members of the University community” appears to exclude University officers from liability. Sec. 1a of the revised Policy uses the phrase “member of the University community” to specify both who may “make a complaint” and who may be the object of such complaint:

a) Any member of the University community may seek advice at any time (see s.21) or make a complaint of harassment or discrimination under this Policy against another member of the University community (see s.23). (sec. 1a)

But the definition of “members of the University community” (sec. 1b) appears not to include University officers or administrators:

b) Those who are considered members of the University community include: unionized or non- unionized full-time, part-time, temporary, casual and contract staff, grant-paid employees as well as those who work to gain experience or for benefits, such as volunteers, co-op students, interns and apprentices; faculty members, including adjunct professors, visiting scholars and post-doctoral fellows; full-time and part-time students, exchange students and students attending Queen’s School of English. (sec. 1b)

The failure of this definition to enumerate University officers and administrators leaves in question whether they can be held responsible under the policy.[1]   It is worth noting that Queen’s existing harassment policy (hereafter referred to as HDCP 2000) also uses the phrase “members of the University community” but never explicitly defines it; in the existing policy, the phrase therefore functions as an implicitly all-inclusive category. Even under “DEFINITIONS,” HDCP 2000 defines “harassment” and “discrimination,” but not “members of the University Community”:

1. Queen’s University recognizes that all members of the University Community have the right to be free from harassment and discrimination. This includes sexual harassment, harassment based on gender, race, ethnicity, religion, creed and sexual orientation or analogous grounds. Such harassment and discrimination has the purpose or effect of unreasonably interfering with an individual’s or a group’s work or academic performance, or of creating an intimidating, hostile or offensive working, living or academic environment. Individuals or groups who are not the direct target of the conduct in question may also suffer harassment and discrimination as a result of being present when such conduct takes place. (HDCP 2000, Sec. “B. DEFINITIONS”)

Thus, by defining the community to include staff, faculty, and students, the revised Policy has introduced what is at best an ambiguity as to whether Queen’s University’s officers and administrators are also liable to complaint under the policy.

The revised Policy does mention “officers, managers, supervisors, and union representatives” as having “a shared obligation” under the policy and notes that “failure” on this score “is a violation of this Policy” (sec. 9b). But this still does not provide for their liability to complaints as individuals under the policy.

When the revised Policy introduces the term “Persons in positions of authority,” it treats them only as enforcers of the policy. This group is defined as follows:

Persons in positions of authority may include, but are not limited to, the following: AMS and SGPS officers, academic staff, medical and counseling personnel, campus security staff, residence staff, lab demonstrators, coaches, department heads and deans, supervisors. (sec. 13a)

This group’s liability to complaint under the policy is not mentioned or provided for. “Persons in positions of authority” are mentioned only in connection with their “roles and responsibilities” for enforcement:

b) Those in positions of authority have the responsibility for creating and maintaining a harassment and discrimination-free environment; acting immediately if they observe or receive allegations of harassment or discrimination; looking into allegations of harassment and discrimination to determine whether there is a basis for the complaint, and remedying the situation where possible; and advising persons, who they believe may have been the subject of harassment/discrimination, of the assistance available through the Human Rights Office.

c) Those in positions of authority also have the responsibility to respond to requests for accommodation based on human rights grounds in accordance with existing accommodation processes in a timely fashion. (sec. 13b-c, emphasis added)

There are also other instances of this construction in which “those in authority” are envisioned only as enforcing, and not as liable to, the policy (see, e.g., secs. 16, 17, and the prologue preceding sec. 23).

Recommendation: The “Final Draft” Policy should be revised so it clearly provides for lodging complaints against the University’s administrators and officers as individuals, i.e., on a par with staff, students, and faculty members of the community.

2. Liability of the University to complaint. While sec. 1a provides for complaints against members, it makes no provision for the liability of the University to complaint:

a) Any member of the University community may seek advice at any time (see s.21) or make a complaint of harassment or discrimination under this Policy against another member of the University community (see s.23). (sec. 1a)

Not until sec. 35 does it become clear that it is possible to make “complaints against the university” or “against one of the University’s operating units or any group or society” (see also secs. 45f-h). These possibilities should be stated up-front to avoid confusion. Taken together with the apparent exclusion of the University’s administrators and officers from individual liability (point 1, above) burying the references to the University’s potential liability to complaints for harassment and discrimination makes the revised Policy unnecessarily misleading. [2]

Recommendation: The “Final Draft” Policy should be revised so that it clearly provides for complaint against the University and/or offices of the University.

3. Overly specific references to affected parties as “individuals” and as “students.”

In section 3, the revised Policy provides for “Non-University employment, placement,” etc. The opening clause provides for these situations as they affect “students, or those who supervise students” (sec. 3a), and the next section provides for them as they affect “our members” (sec. 3b). But elsewhere in this section, the terms “individuals” and “students” are used in ways that appear to be overly specific for some situations. Thus:

the University needs to respond to ensure that individuals are given opportunities to work in harassment and discrimination-free environments. Individuals may utilize this Procedure in cases where they feel the University has not met this obligation. (sec. 3b, emphases added)

Since the term “individual” is properly defined and used as implying an opposition to groups, this could be read as excluding groups or teams from access to the policy[3];  language such as “members” or “parties” or “persons,” or (better yet) “all members” or “all parties” or “all persons,” would be preferable.

Likewise, the revised Policy provides:

c) Many such organizations will have their own Procedures to deal with harassment/discrimination and students are encouraged to access these Procedures; or alternately, the legal services of the Ontario Human Rights Tribunal. The Queen’s Human Rights Office’s advisors are available to individuals who wish to discuss the incidents and examine their options. Although the procedures cannot be used in a non-University venue, in these cases, assistance, liaison, and referral services will be provided.
d) Queen’s University expects external organizations to provide students with a harassment and discrimination free environment. Thus, whether students have access to complaint Procedures or not, they are strongly encouraged to report such incidents to their coordinator, faculty advisor, supervisor, department head or a Human Rights Advisor as appropriate. (secs. 3c-d, emphases added)

Especially given that sec. 3a envisions situations that include “those who supervise students,” the language here should not single out “students” (or “individuals”) but should be more inclusive. There are similar issues with the usage of the word “individual(s)” elsewhere in the document (e.g., secs. 14, 21, 22).

Recommendation: The “Final Draft” Policy should be revised so that all references to parties are precise and sufficiently inclusive. “Student(s)” should be singled out only when the policy applies exclusively to student(s), and special care should be taken that the word “individual(s)” not be used loosely to mean “person(s)” or “party/parties.”

4. Questions concerning the meaning of “discrimination” in relation to faculty functions of evaluation of students and in relation to “mental disability”:

The practice of evaluating or “marking” students and their assignments on a scale from A to F is a practice of “discrimination” in the broad definition of the term (the Oxford English Dictionary defines “discriminate” as “1. trans. To make or constitute a difference in or between; to distinguish, differentiate,” and it defines “discrimination” as “1. a. The action of discriminating; the perceiving, noting, or making a distinction or difference between things; a distinction (made with the mind, or in action)”). In an academic context it is normal for evaluation to be premised on differences in mental abilities or on differences in performance that can be attributed in part to differences in mental abilities.

The revised Policy defines prohibited “discrimination” as “any form of unequal treatment based on a Ground enumerated above, which imposes extra burdens and/or denies benefits” (sec. 6), where the grounds enumerated above include mental disability as distinct from “learning disabilities” (sec. 5a). [4]

This language raises two questions:

First, does an “unequal treatment” that “denies benefits” include assigning a low mark that would bar a student from continuing, from taking second-year courses in a concentration, or from being accepted to graduate programs? Can “unequal treatment” be defined so that it specifically excludes such a reading?

Second, what is mental disability, as distinct from “learning disabilities”? The “Definitions” in Appendix A include an entry on “Disability” consisting of summaries of and quotations from legislation. Two of these quotations refer to “mental disability” and/or “mental impairment” but nowhere are these phrases defined. Appendix A does not define or indeed mention “learning disabilities,” and in fact the only place where this phrase appears in the whole revised Policy document is in sec. 5a. That said, the concept of “learning disabilities” is widely understood and does not seem particularly problematic. But enumerating it in addition to “mental disabilities” suggests that the term “mental disabilities” refers to something other than “learning disabilities,” and yet it is not specified what that something consists of.

So is the language of Sec. 5 precise enough to allow discrimination in the sense of evaluation or “marking” students and their assignments while disallowing it in the undesirable sense? Would the current phrasing of Sec. 5 give grounds for a student assigned a lower mark than other students for, say, producing less satisfactory responses, to object that this was discrimination on the basis of mental disability? In other words, does the phrasing of Sec. 5 potentially limit or compromise the right of faculty to discriminate on grounds of (or on grounds traceable to grounds of) mental ability?

Recommendation: Clarify the language of Sec. 5, perhaps by defining “unequal treatment,” “mental disability,” and “learning disabilities.”

5. Time Frame.

Sec. 23 stipulates that complaints be brought forward within 12 months. This responds to the Review Group’s Recommendation C-3, but in recommending a “period of one year during which complaints should be initiated,” the Review Group added: “with a provision for flexibility where a reasonable explanation for the delay is provided.”

Secs. 25 and 36 of the revised Policy provide for complaints brought after 12 months, including appeal to another body, but do not appear to provide for actual take-up of complaints lodged after 12 months.

Recommendation: The “Final Draft” Policy should make such a provision for flexibility.

6. Other:

A. Sec. 3b reads:

In situations where our members are involved in placements, etc. outside of the University, the University needs to respond to ensure that individuals are given opportunities to work in harassment and discrimination- free environments. Individuals may utilize this Procedure in cases where they feel the University has not met this obligation. (sec. 3b, emphasis added)

The phrase “respond to” appears to be an error; in any case it is not clear (respond to what or whom?).

Recommendation: Omit “respond to.”

B. Sec. 11 reads, in its entirety:

11. Procedural Fairness
In the context of an investigation or a hearing, processes that are fair, which include the right to know the case against you and to have a meaningful opportunity to present your side of the case before an unbiased decision-maker.

The sentence is not complete or clear.

Recommendation: Complete the sentence.

C. Sec. 29d reads, in its entirety:

In the case of a complaint by a non-union member against a member of a union, the complaint shall proceed ensuring the respondent is aware of the assistance their union is able to provide. (sec. 29d, emphasis added)

It is not clear what the emphasized phrase means: “shall proceed, while ensuring”? “shall proceed by ensuring”? “shall proceed to ensure that”?

Recommendation: Clarify the phrase.

D. Sec. 31b.
• “their representative” should be plural
• “may propose” should be “and may propose”

E. Sec. 32a ends with the sentence, “Both parties must agree to the choice of the facilitator or mediator or who may be any other member of the community upon whom the parties can agree, and who agrees to serve.” (sec. 32a, emphasis added)

A phrase may be missing here, or possibly “or” should be replaced with a comma.

F. Sec. 32b: The phrase “Section 27 otherwise” should be “Section 27 or otherwise.”

G. Appendix, “Accessibility requirements”: “characteristic” should be plural.

H. Appendix, “Duty to Accommodate”: “comprise” should be “constitute.”

I. Appendix, “Disability”: Since this is a subsection of the “Definitions” section, it should include definitions of “Disability,” “Learning Disabilities,” and “Mental Disability.”

J. Appendix, “Discrimination”: Remove the direction, “See definitions section.” (This is in the “definitions section.”)

K. Appendix, “Remedy”: Should probably mention remedies other than “to compensate a claimant and prevent future breaches” (e.g., to secure an apology).

L. Appendix, “Sexual Harassment”: Fix subject-verb agreement in the phrase “where reprisals occurs or is threatened.”

Notes

1. For instance, sec. 13a provides that “All community members at Queen’s are expected to uphold and abide by this Policy…”  The usage of “staff” elsewhere in the revised Policy does not include administrators: for instance, sec. 38b refers specifically to the “staff, student, and faculty” members of Senate (which also has ex officio members from the University administration).

2. Another (partial) exception is sec. 24, which refers to the possibility of multiple “complaints . . . regarding the same individual or unit,” but it doesn’t define “unit.”

3. It is worth noting that sec. 24 uses “individual” in this precise sense when it provides for “complaints… regarding the same individual or unit” (sec. 24).  Using “individual” properly in this instance implies awareness of the operative distinction, and thus implies that “individual” is used in the restrictive sense (to exclude groups or “units”) elsewhere in the same document.

4. “This Policy prohibits discrimination or harassment on the basis of the following grounds, and any combination of these grounds . . . . Disability (including mental, physical, developmental or learning disabilities). . .” (sec. 5 and 5a).

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One Response to Mark Jones, Concerns about the Proposed Revisions to Queen’s Human Rights Policy (29 March 2011)

  1. herb basser says:

    Mark,

    Our USAT forms ask students to identify themselves: Male, Female. We need to omit these designations as the mere question appears to suggest the comments from males and females will be treated differently.

    Herb

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