Labour arbitrators recognize there’s an important social component to academic life, within limits. Labour-side lawyer Cynthia Petersen reviews Canadian arbitral jurisprudence and how arbitrators have decided in thorny cases involving sexual harassment.
It is well established in Canadian jurisprudence that university administrators have a legitimate interest in regulating faculty-student relationships, including the management right, in appropriate circumstances, to discipline faculty for inappropriate behaviour. Discipline may be imposed even for incidents that occur off campus and outside of normal working hours, provided there is a nexus between the faculty member’s employment and his or her misconduct—such as when the conduct has a negative impact on a student’s learning environment and thereby undermines the institution’s educational mandate.
Labour arbitrators recognize, however, that faculty in post-secondary settings should enjoy considerable latitude in socializing and developing personal relationships with their students. There is an important social component to academic life, which encompasses interactions between faculty and students. The goal of promoting a free exchange of ideas is furthered by the creation of an environment in which faculty-student interactions are not impeded by overly hierarchical dynamics. Moreover, faculty are not simply instructors to their students; they also function as advisors and mentors. The most effective mentoring relationships are often built on a foundation of mutual interests and values—fertile ground for the development of personal, as well as professional, bonds. Faculty from underrepresented communities (e.g., openly lesbian/gay professors, professors from racialized minorities, professors with visible disabilities) sometimes function as support persons and role models for minority students aspiring to overcome systemic barriers (e.g. heterosexism, racism, ableism) in their chosen disciplines. Such supportive relationships are frequently nourished by sharing common experiences, histories, and perspectives, which can also engender the development of personal bonds. The multi-faceted dimensions of the faculty’s role, combined with the relatively close proximity in age between some professors and students, contribute to an environment in which friendships may flourish.
Although social interactions between faculty and students play a vital role in the fabric of academic life, there are clear professional and ethical boundaries that must be respected. As boards of arbitration have noted in a number of cases, the university classroom “is not a community of equals. ” Professors hold a position of authority and influence relative to students, who are in a position of dependence and considerable vulnerability. This gives rise to fiduciary obligations. Faculty must not abuse their authority or exploit students’ vulnerability in such a way as to jeopardize the institution’s educational goals.
Using one’s position of power to import sexual requirements into a student’s learning environment is the most obvious way in which a faculty member can breach his or her fiduciary duty. Any implication that sexual favours are expected or will be rewarded constitutes a breach of trust and sexual harassment—culpable conduct for which a faculty member can be disciplined. In the most egregious cases, termination of employment may be justified.
There need not be an explicit solicitation of sexual favours (or any sexual touching) in order for a finding of sexual harassment to be made. For example, in the Mahmoodi case arising at the University of British Columbia, a faculty member was found to have engaged in sexual harassment by interacting with a female student in a manner that had all of the “indicia of common courting behaviour”. After inviting her to join him for dinner at his home, he lowered the lighting, burned candles, lit a fire, played “seductive” music, served wine and initiated a conversation about his past girlfriend, leaving her with the impression that he was a single man. All of this occurred in the context of ongoing discussions in which he encouraged her to apply for graduate studies, despite her poor academic performance to date, and to enrol in a directed studies course for which she was ill-equipped and which she ultimately failed. The B.C. Human Rights Tribunal concluded that her experiences as a student were “detrimentally affected” by the professor’s behaviour and that she had “turned to him for guidance and he let her down.” He was found to have engaged in sexual harassment by “creating a sexualized environment” that “failed to acknowledge the normal professional boundaries between a professor and a student” and “failed to appreciate a professor’s position of trust in relation to his student and a student’s vulnerability vis-à-vis a professor.”
Courts have made it clear that, where a significant power imbalance exists between parties, harassment can involve very subtle behaviour. As the B.C. Supreme Court noted in reviewing the tribunal’s decision in the Mahmoodi case, sexual harassment may be found based on conduct that would otherwise constitute normal social interaction between equals. For example, invitations by a faculty member for dinner or drinks, compliments on a student’s appearance, and the offering of gifts could be interpreted as overtures implying an unwelcome romantic or sexual interest.
A faculty member who becomes involved in intimate interactions with a student cannot acquit himself or herself of an allegation of sexual harassment simply by demonstrating that he or she was not aware that the interactions were objectionable to the student. The relevant legal inquiry encompasses not only what the faculty member knew or intended, but also whether he or she ought to have known that his or her comments or conduct were unwelcome. In order to make this determination, adjudicators query whether a reasonable person, apprised of all the circumstances, would recognize that the behaviour was not welcome.
It is important to note that a finding of sexual harassment can be made even if a student does not vocalize any objection to the faculty member’s conduct. Harassment complainants are not required to communicate expressly that the impugned conduct is unwelcome. Reasonable people are deemed to know that a complainant may be too vulnerable or intimidated to confront a harasser, particularly where there is a power imbalance between them. Courts and tribunals have noted, for example, that a student may tolerate a faculty member’s sexual innuendos and overtures in order to obtain academic advantage, but that does not necessarily mean that the professor’s conduct is welcome. Acquiescence to an authority figure’s sexual advances is not the same thing as consent. As the tribunal observed in the Mahmoodi case, “[t]he reasons for submitting to conduct may be closely related to the power differential between the parties and the implied understanding that lack of co-operation could result in some form of disadvantage.”
The existence of a power differential between parties does not, however, automatically nullify consent in every case involving a questionable sexual relationship. The presence or absence of bona fide consent (and concomitantly of harassment) depends on the totality of the specific circumstances. Although there are some similarities, faculty-student relationships in university settings are not precisely comparable to doctor-patient relationships in therapeutic settings, solicitor-client relationships in legal settings, or teacher-student relationships in secondary school settings. The dynamics of each of these relationships is unique and presents its own set of concerns. Even within the academic university environment, the consensual nature and propriety of each faculty-student relationship must be evaluated on its own terms. A good example of this is the Okanagan University College case, in which a professor was terminated from his employment for engaging in sexual relationships with four students who were enrolled in the faculty where he taught. Two of the students made sexual harassment complaints against him, but he was ultimately found not to have violated the institution’s harassment policy. Arbitrator Lanyon concluded that this was not a case “where…all the circumstances and the difference in power objectively vitiates consent.”
A review of the case law reveals that contextual factors, such as the age differential between the parties, the place and manner in which they first met (e.g. outside the classroom at a dinner hosted by mutual friends), and whether the students were enrolled in the faculty member’s courses are relevant considerations that will impact an adjudicator’s determination of whether a faculty member has engaged in harassment or otherwise transgressed appropriate professional boundaries. For this reason, a labour arbitrator would be unlikely to uphold a university policy that attempted to prohibit outright all intimate relationships between faculty and students (unless such a policy were negotiated with a faculty association as part of a collective agreement, which would be extremely unusual).
It should be noted that a relationship that is consensual at its inception can nevertheless result in a finding of harassment or breach of trust if, for example, the student later wishes to terminate the relationship but feels trapped and unable to do so, for fear of suffering negative academic reprisals. Because of the power differential and resulting vulnerability of students, the prospect of coercion and abuse of authority is ever present in intimate faculty-student relationships. Consequently, in the Okanagan University College case, arbitrator Lanyon ruled that, whenever there is a relationship involving sexual intimacy with a student, a legal presumption arises that the faculty member has engaged in a breach of trust. The presumption may be successfully rebutted, but the faculty member bears the onus of disproving the presumed breach.
In cases where a truly consensual relationship evolves, and there is no basis for alleging harassment, there may nevertheless be grounds for the university to discipline a faculty member, if he or she fails to manage the relationship ethically and professionally. This is, in fact, what occurred in the Okanagan University College case, where the professor was exonerated of harassment allegations and reinstated to his employment but was disciplined (i.e., suspended) for breach of trust. Any faculty-student relationship that jeopardizes the university’s educational mandate may be found to constitute a breach of trust.
A university has a responsibility toward every student who enrols in its programs, and faculty are entrusted with the delivery of the university’s educational goals. When a professor becomes involved in an intimate relationship with a student, an obvious conflict of interest arises with respect to the professor’s evaluation of that student’s progress. Any judgements made by the faculty member can legitimately be called into question. As the board of arbitration noted in the recent Lethbridge College case, “[e]valuating someone’s performance while in the midst of a sexual relationship, or shortly after the end of the relationship, can lead to deliberate favouritism, exploitation, or, if the relationship has ended badly for the faculty member, disadvantage to the student.” The board added that “[t]he instructor’s behaviour does not have to be conscious to skew the results.”
The Lethbridge College case involved a professor terminated from his employment for engaging in sexual relationships with three of his female students. He knew one of the students before she enrolled in his class but met the other two students as a result of their enrolment. He developed friendships with all of them, friendships which evolved into consensual sexual relationships either shortly before or shortly after the students completed his course. Two of the students took a second course from him, but one of them later withdrew from that course because of her ongoing relationship with him. He nevertheless completed a graduation audit form for her. Their relationship later ended abruptly, and the student experienced difficulties in completing her academic term. She eventually filed a complaint against him, alleging that he had overstepped ethical boundaries by taking advantage of her in a vulnerable situation. He did not disclose any of his relationships to the college administration, which was ultimately found to be just cause for discipline (though he was reinstated to his position). The board of arbitration noted that, in addition to the potential for actual bias, an apprehension of bias was likely to arise in the minds of other faculty and students. The board concluded that, even if objectivity was maintained by the professor, “the perception of bias, if the relationship becomes public, may be impossible to overcome.” Apprehension of bias was also a factor in the Okanagan College case, in which arbitrator Lanyon found that perceived favouritism toward certain students “distorts and damages the learning environment for students in that they no longer have confidence in the instructor, the faculty, or the institution.”
Since the mere perception of preferential treatment can be damaging to a university’s reputation and to the students’ learning environment, faculty who become involved in an intimate relationship with a student are expected to manage the relationship appropriately in order to avoid conflict of interest and minimize the risk of perceived bias. The recommended course of action—described by the board of arbitration in Lethbridge College as “the only proper course of action for the instructor in this situation”—is immediate disclosure of the relationship to an appropriate person in authority (such as their dean) and removal of all responsibility for supervision and evaluation of the student’s academic performance (including grading, advising, sitting on a thesis committee, providing letters of reference, etc.).
Failure to make appropriate and timely disclosure of a relationship with a student may result in a finding of conflict of interest and/or breach of trust, resulting in cause for discipline. The severity of the discipline will depend on all of the circumstances of the case, including the existence (or not) of clear university guidelines requiring disclosure. Some faculty collective agreements now include articles outlining mandatory disclosure obligations, upon which universities can rely in justifying disciplinary penalties. The absence of such contract language and of a clearly communicated disclosure policy has been treated by some arbitrators as a mitigating circumstance. In the Lethbridge College case, for example, the Alberta Court of Queen’s Bench held that the board of arbitration was justified in concluding that the faculty member’s misconduct was not “serious enough to warrant dismissal” because it had “occurred in the context of ambiguously defined boundaries and in the absence of an express policy.”