Recommendations Concerning Sexual Harassment Rules

Background

In the winter and spring of 2000, the Faculty Council discussed the issue of suspension without pay as one of the sanctions against faculty alleged to have committed sexual harassment. At the May 2000 meeting of the Faculty Council Melanie Griffin (then Director of Harassment Compliance), and Monica Barrett (Office of University Counsel) were invited to provide information on the sanctioning process and the reasons for suspension without pay as one of those sanctions. The Personnel Policy Committee was charged with considering this information and returning in the 2000-2001 Academic Year with a revised motion concerning sanctions under the University’s Harassment Compliance Policy and Complaint Process.

Two members of the Personnel Policy Committee (Jeanette Haviland-Jones and Charles Fay) met with Karen Stubaus, Melanie Griffin, and Monica Barrett to discuss concerns expressed by members of the New Brunswick Faculty Council.

It was pointed out that the Harassment Compliance Policy and Complaint Process apply to all members of the University community and not just faculty. Changes based solely on the Faculty Council’s concerns would not take into consideration other changes that might be appropriate.

The rationale given by Administration staff for using suspension without pay as a potential penalty is that if an accused harasser is found to have committed the harassment, suspension without pay can be used as a lever to force the harasser to seek diagnosis and treatment. Once this is done it would be expected that pay and benefits would resume. This sanction is considered one that would rarely be applied (it has been applied once, to date, and lifted in response to union protests) and would be of short duration. It would ordinarily be applied when the faculty member (or other University employee) is considered salvageable, but treatment is considered necessary before the faculty member is put back in the classroom and contact with students or staff.

The AAUP Grievance Chair reports that there is a case in which the Final Determination by the Dean and the Director of Harassment Compliance stated that the faculty member was suspended without pay indefinitely. The faculty member filed a grievance and in the Step One Decision, the Central administration stated that the suspension without pay was for one semester, after which return to the payroll was contingent upon receiving diagnosis and treatment. The case is currently in arbitration

The role of a neutral peer committee to take part in sanctions considerations is to lessen the chance that inappropriate considerations distort the sanctioning process. This peer committee should be composed of a neutral body of peers of the complainant and respondent, appointed by the University Senate with challenge for cause, who will assure that complainants and respondents are treated with due process and that the University community is protected from individuals who commit harassment.

Recommendations

The New Brunswick Faculty Council recommends that the Implementation Committee for the Harassment Complaint Process be reconvened to consider how well the Rutgers University Harassment Policy has worked since it was implemented and consider appropriate changes based on that experience and on concerns raised by the New Brunswick Faculty Council and other concerned members of the Rutgers community.

Further, the New Brunswick Faculty Council recommends that one or more members of the New Brunswick Faculty Council be appointed to the Implementation Committee to express the Council’s concerns.

The New Brunswick Faculty Council specifically recommends that the Policy be changed with respect to process. Currently, a number of sanctions for those found to have harassed someone are available:; i.e.,

"Sanctions will be determined on a case-by-case basis, and the Director and the Dean, Vice President, or student employee's Supervisor will take reasonable steps to foster consistency for similar violations and circumstances across the University. Possible sanctions and remedial actions include, but are not limited to:

• Participation in education sessions on harassment;
• A Warning placed in the respondent's file;
• Reassignment of teaching or other responsibilities;
• Probation;
• Suspension without pay; or
• Termination, dismissal [Nothing in this Policy is intended to abrogate any rights accorded faculty under the University dismissal regulations, 3.93]"

For a faculty member, suspension without pay (if long-term) is tantamount to termination without the protections afforded when termination is sought. We believe the intent of the University would be met and adequate due process afforded to both the complainant and the respondent with the following changes to the policy:

Either the Complainant or Respondent may appeal the final determination of the Dean and Director by submitting a written statement of appeal to a neutral body composed of peers of the complainant and respondent. The other party shall have the opportunity to provide a response to the appeal.

The neutral body shall review the statement of appeal and response, if any, and the record, and shall determine in an expedited manner whether:

1. Due process was accorded to the complainant and respondent.
2. Findings of fact are justified.
3. Sanctions are appropriate.

The decision of the neutral appeals body should be binding on the parties.

Under any circumstances, suspension without pay would not be a sanction option.