CRARR FOUND MAJOR FLAWS WITH CONCORDIA'S SEXUAL HARASSMENT POLICY
Montreal, October 25, 2016 — Concordia University needs to urgently correct its inconsistent policies on sexual harassment in order to better protect victims of gender-based discrimination and other forms of harassment.
This is CRARR's main finding and recommendation in working on cases of discrimination and harassment based on gender, race and sexual orientation at Concordia.
In the last three years, CRARR has represented Concordia students in cases involving discrimination and harassment which it has brought to the Quebec Human Rights and Youth Rights Commission.
Some of these include a 2012 complaint involving the well-publicized case of “Mei Ling”, an ASFA executive who was continuously exposed to racial and sexual harassment by the former President and Vice-President of ASFA; and more recently, the case of “Felicia”, who lost her job at the Campus Retail Store after she complained of sexual and gender harassment by a male co-worker.
CRARR is currently handling a request for assistance from a Black former executive of a student association who claimed to be a victim of racial and psychological harassment by his peers, and from a female student who was subjected to violence and harassment by her former partner.
CRARR's involvement in these cases has enabled it to arrive at the conclusion that the definition of sexual harassment in the Code of Rights and Responsibilities is highly problematic because it fails to meet basic benchmarks of current civil rights jurisprudence.
For instance, the definition in the Code still refers to the “purpose” (“such conduct has the effect or purpose of unreasonably interfering with a Member's right to pursue his/her work, study or other activities”, Article 28). However, courts in Canada have ruled for three decades that intent is no longer required to prove discrimination or harassment.
In fact, the insufficiency of a legally debatable definition is but one part of the issue.
CRARR has found that the University presently has a total of four different applicable definitions of sexual harassment, each of which has its own problem of compliance with case law. In addition to the Code's definition, other definitions are found in Concordia's May 2016 Policy regarding Sexual Violence; the Collective Agreement for CUPFA (Concordia University Part-Time Faculty Association), and the University's Human Resources Policy.
Confusion and incoherence are visible. For instance, in the new Policy, the notion of intent or purpose is absent from the definition, but so is that of a toxic or hostile environment which is found in the Code's definition and which courts have found to be a key constitutive element of sexual harassment. However, the Code's concept of a toxic environment fails to take into account more subtle, pervasive and indirect practices of sexual harassment, which courts have found to be discriminatory.
“The fact that there are different definitions at Concordia, all of which can be deemed to fall below established legal standards of sexual harassment, may give rise to the possibility that victims of sexual harassment have been inadequately treated in all human resource practices and student support services at Concordia,” said Katrina Sole-Kähler, a McGill law student who is part of a CRARR Working Group reviewing Concordia's harassment policies.
CRARR had hoped that the University's Sexual Assault Policy Review Working Group would address the inconsistencies with these definitions, which it obviously did not. It has regularly expressed its concerns that the policy review process fails to address sexual assault and harassment from civil rights and Charter perspectives.
“If the definition of harassment in the Code is not in compliance with civil rights law, fundamental questions can be raised about the University's obligation and ability to effectively protect students from discrimination, harassment, and violence, as viewed through the Quebec Charter of Human Rights and Freedoms,” added Charlotte Cheong, another member of the CRARR Working Group.
“In fact, we recommend that any student who presently has a sexual or other harassment complaint before the Office of Rights and Responsibilities, or the Student Tribunal, to proceed with caution and if in doubt, ask for external help because of these systemic flaws,” Cheong said.
“We strongly encourage the University to immediately work with different stakeholders to harmonize these different policies and ensure that a single definition of sexual harassment that corresponds to the standard of the law is available to students and staff in Concordia's complaints process,” CRARR Executive Director Fo Niemi said. “In fact, other universities in Quebec should do the same.”