Harassment AND ASSAULT Complaints IN ACADEMIA
Colleges and universities are increasingly being held accountable for harassment and assaults that take place in their working and learning environments. Accountability begins with a robust, functional complaints process. This page is written from my own perspective of pursuing complaints in both institutional and extra-institutional contexts, and it reflects what I wish had been available to me: an accessible, jargon-free (I hope) overview of how to address workplace harassment. It is not legal advice.
The best suggestion I can make for anyone contemplating filing a complaint in any venue is to hire a lawyer unless you are specifically barred from doing so. When I was still employed and tried to hire a lawyer, I was told that because the terms of my employment were covered by a unionized faculty contract, a lawyer would have no right to advise me (which was only, as it turns out, partially true; what was more accurate was that some lawyers are leery about dealing with these complaints, and it probably didn't help that my employer was one of the region's largest). Ultimately, at a friend's urging, I tried again to seek legal advice, and it made all the difference: look for a law firm that has expertise in employment and discrimination law, and consider contacting the Canadian Bar Association's Lawyer Referral Service.
Noted feminist scholar Sara N. Ahmed is undertaking a Complaint Study, examining how experiences of harassment are translated into informal as well as formal complaints; she is also interested in how stories of complaint circulate (and are blocked, or stymied). In May 2018 I will be presenting on feminist complaints and Ahmed's work at ACCUTE (session 48; I will post the paper as soon as it's ready).
So this is what I wish I had known two years ago about British Columbia employment law, collective agreements, human rights complaints, and Workers' Compensation, and it is necessarily shaped by the particular circumstances of my own experience. And I should note, too, that all of my allegations are just that--they have not been tested in a formal investigation.
1. If you have experienced a physical or sexual assault, seek medical attention if you want your injuries to be documented (and even if you're not sure that you will want to pursue a complaint). Take a friend; if no one is available, ask for an advocate to be contacted who can accompany you. A workplace injury, including an assault, may be covered under the Workers' Compensation Board scheme, so review WorkSafe BC for advice.
2. For all forms of assault or harassment or discrimination, document everything: write down all of the details of your experience, including dates, times, and people involved (including any witnesses). Put together a dossier of email and text messages, other communications, even your diary. Include copies of all medical notes, if you experienced adverse health consequences. Keep copies of your bills. Keep everything, even if it's excruciating to look at or re-read.
3. If your experience could be the basis for a criminal charge, consider reporting it to the police. In some instances of campus assault, complainants are not sure if they should be contacting campus police or the local police: contact both, and ask someone to assist you in following up to find out how your complaint is being handled.
Making a complaint (non-criminal processes)
Staff and Faculty
If you are a unionized employee, contact your union about your experience of harassment (sexual harassment or personal harassment--bullying) or assault. A non-unionized or casual employee should begin with your supervisor (unless your allegations are about this person), or your supervisor's supervisor.
Do not delay reporting your experience to the union because your supervisor has told you that the matter can be handled informally; document, report, and expect action. Ask for written information on the union's approach to handling harassment complaints. Ask who is responsible for deciding whether to file a grievance, and what the timeline is like for dealing with complaints. Ask for everything about your complaint to be communicated to you in writing. (And based on my experience, it's wise to find out if the union has a conflict-of-interest policy; if someone should be excluded from information about your case, this will help ensure the soundness of the process. Conflicts may not be intentional or nefarious, but people who have a personal stake in the investigation of your complaint should not be involved in any way.)
1. Your institution may have an assault or harassment officer (sometimes called a personal safety officer). You may also wish to contact any one of a number of parties, some of whom are mandated reporters, and all of whom should be able to direct you to the appropriate resources: a trusted teaching assistant or professor; your residence advisor; the head of residence services; a counselor or doctor on campus; the ombudsperson; the equity and human rights office (the names of these offices vary slightly by institution). And please contact family or friends who can be supports.
2. Your circumstances may affect your studies: if needed, get a note sent to your instructors (your privacy will be protected, but you can ask for extensions or other accommodations).
Pursuing a Complaint
Locate your institution's policies and print out a copy; identify all of the aspects that seem to apply, so that when you are talking to university representatives you can be specific about what you are alleging and use appropriate terminology (assault, personal harassment, or sexual harassment; informal complaint; mediation; formal complaint).
Seek out a support person. Ask for one; if your institution can't provide one, ask if a friend can accompany you to meetings. You may well be feeling overwhelmed. You may not remember all of the details of conversations. Do ask for help.
Before making a decision about how to proceed, ask for all of the available options to be laid out for you, including internal and external complaints processes.
Using internal complaints processes
My experience is with a university and as a unionized faculty member, so it is not necessarily generalizable; on the other hand, over the past two years I've spoken to dozens of people--students, faculty, and staff--who have been involved in making or responding to complaints, and I'm noticing some unfortunate commonalities.
1. Informal mediation may be proposed, and a formal investigation may be discouraged or held out as a last resort
Mediation--a conversation with the person or people against whom you are making a complaint--is, in my view, only appropriate under the following circumstances: there is relative parity between the parties (they both have tenure, for example, or both are staff members and have equal access to support, including legal advice); the mediation is designed to assuage conflicts so that the parties can continue to work and/or study together; there is good will on both sides to resolve a conflict and move forward in a positive way.
Essentially, my view is that if the issue is an educational or workplace conflict, mediation may be appropriate; to use Sarah Schulman's distinction (without endorsing her analysis), if there is abuse, mediation is not appropriate.
Why are institutions reluctant to pursue formal fact-finding (and, especially, fault-finding) investigations? Most likely cost, time, and the prospect of exacerbating ill will.
But here's the problem: mediation and restorative justice approaches do not establish facts but rather bring together competing and likely incompatible narratives about what happened; the institution and its representatives are highly motivated, if there are allegations of harassment or bullying, to minimize the harm done and excuse or explain away the conduct of the person against whom a complaint has been made; that person may even cast him-/herself as the real victim, the lodging of the complaint as an injury.
2. Formal investigations and fact-finding
By the time that my request for a formal investigation was approved, I had attempted alternate approaches and sought assistance from every possible quarter. (And I would list them here, but I risk violating some confidentiality provisions that I agreed to--and one key aspect of a complaint is that your complaint can't be lodged in the first place until you begin agreeing to confidentiality.)
Formal investigations are expensive and cumbersome. In some instances, they are absolutely vital. In a context where there is serial or ongoing abuse, a formal investigation may offer the possibility of relief.
Conversely: if you have left your employer (many people who experience harassment do so), or if, as a student, you have withdrawn from your program in the wake of an assault or other misconduct on campus, you may not wish to rely on your former institution's internal processes (or they may not even be available to you). What are your alternatives?
Other possibilities for employees in British Columbia:
1. WorkSafe BC Bullying, Harasssment, or Discrimination complaint. Employees are directed to first report their complaint to their employer; if the employer is not responsive, employees can then contact WorkSafe BC's prevention officer and, if action is still not taken, submit a complaint through WorkSafe BC, which will not "resolve or mediate any specific disputes or conflicts." Instead, they will focus on ensuring the employer's compliance with Occupational Health and Safety regulations. Many employers now have training about different forms of harassment and discrimination in order to help ensure they are complying with the 2013 changes (see here for
G-D3-115(1)-3 Bullying and harassment).
2. Employment law-related claims. Again: this is not legal advice! If you left a job due to harassment or discrimination you may be able to sue for constructive dismissal on the basis that you were forced out of your job by your employer's unwillingness or inability to address the harassment that you experienced. There are some interesting cases (canlii.org), but you need a lawyer's guidance about whether there are merits to your claim that make it worth pursuing as a civil case.
3. The British Columbia Human Rights Tribunal. Complaints brought to the BCHRT must allege discriminatory treatment on the basis of protected personal characteristics, such as disability, age, race, gender, or religion. That is: if you experienced personal harassment (workplace bullying) and there is not a discriminatory element, you cannot make a successful claim. Conversely, the 1989 Janzen case established that sexual harassment is a form of sex discrimination and that an employee's acts of sexual harassment towards other employees may fall under the scope of employment and make the employer liable if the employer does not act to stop an abuse of power.
Advantages of the tribunal complaints' process: A complainant may proceed without legal representation (although some evidence suggests that unrepresented complainants are more likely to have their complaints dismissed); there is no cost to making or pursuing a complaint through to a hearing; the BCHRT proceedings only become public in the event of a hearing, and the BCHRT encourages parties to settle disputes at an earlier stage.
Disadvantages: As noted above, many personal harassment complaints may not include an element of discrimination and will not be accepted; although complainants can self-represent, they benefit from the advice of a lawyer, because the tribunal rules are complex and have especially strict timelines (six months is the maximum time that can elapse between the last instance of discrimination and the filing of a complaint, which is shorter than in many other provinces).
Limits and consequences
Complaints are time-consuming and exhausting to pursue; they are expensive and disheartening.
I am both glad I pursued complaints and profoundly angry about how compromising the process is for complainants.