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A class act in BC: Challenging universities’ sexual harassment policies

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In the last two months alone, there have been numerous reports of students alleging that their university mishandled complaints of sexual harassment. From Ontario to BC, it is clear that Canadian students want their post-secondary institutions to address the longstanding and highly charged issue of sexual harassment on campus – but not without their participation in the process.  At least one student has discovered that she could have a greater impact on how her university responds to sexual misconduct by legally contesting its policies with a class complaint.

A Class Complaint

In March 2016, Glynnis Kirchmeier, a former graduate student at the University of British Columbia (UBC), filed a human rights complaint against UBC alleging that it failed to adequately respond to students’ complaints of harassment and sexual harassment. Mediation was unsuccessful.

Under s. 21(4)(b) of the BC Human Rights Code, an application may be filed on behalf of a class of persons. That is exactly what Kirchmeier has attempted to do. Her complaint covers two classes of complainants. One is a group of women who allege that they were sexually harassed by a graduate student in UBC’s history department. The other is described by the BC Human Rights Tribunal as follows:

Any female student of UBC who at least once reported, disclosed or communicated to a faculty member or administrative staff member of UBC by any means […] a concern about sexual misconduct between January 8, 2014 and November 16, 2015 by a male studying or employed at UBC towards a female student enrolled at UBC.

This component of Kirchmeier’s complaint may become a vehicle for female students to challenge the policies that govern how UBC responds to all sexual misconduct complaints.

Class Complaints and Sexual Harassment Policies

Less than six months before the BC Human Rights Tribunal grappled with the definition of the class in Kirchmeier’s complaint, the Federal Court of Canada approved a settlement for a class of women who were subjected to sexual harassment and bullying while serving as members of the RCMP. Indeed, there is quite a long history of class actions pertaining to institutional sexual misconduct.

What’s different about Kirchmeier’s complaint, and what we may see more of in the future, is that it is brought before a human rights tribunal instead of a civil court. Also, the complaint is based on harm caused by an institution’s sexual harassment policies and investigations rather than acts of sexual harassment. With fewer financial barriers to litigation, greater breadth of remedies, and expertise in human rights, a human rights tribunal may be a more appropriate forum for class complaints that focus on an institution’s policies. While perhaps underutilized, this type of policy-based class complaint is not without precedent. In 2010, the BC Human Rights Tribunal certified a class complaint against the Abbotsford School District for its decision to eliminate a high school social justice course that contained lessons on LGBT issues.

Class Complaints, Sexual Harassment Policies, and the University

For many students, universities are the preferred forum for initiating complaints of sexual harassment. One reason for this is that universities, unlike the criminal justice system, are seen as being responsive to the particular needs and experiences of their students. When a university’s policies fail to meet this expectation, students find a way to seek remedies. Whether it is through protests or litigation, they will make their voices heard.

Recent legislation in BC, Manitoba and Ontario require universities in those provinces to have sexual harassment policies. These policies must be developed with student input. For other provinces such as Saskatchewan, which has a class complaint procedure in its human rights code that is similar to BC’s, a class complaint may be a welcome opportunity for students to have their say in how universities prevent, and respond to complaints of, sexual misconduct.

In the Federal Court’s decision to certify the class action against the RCMP mentioned above, it noted that there were over 20,000 women who fit the description of primary class members. Accordingly, individual actions by each woman would be both inefficient and uneconomic. Given the emotional and monetary costs associated with litigating issues of sexual harassment – even simply the issue of how a university responds to sexual harassment – and the number of female post-secondary students, it would be wise to watch out for students initiating complaints in this manner. The determining factor is whether students will see beyond their personal experiences and recognize the broader community that is captured within their individual complaints.

William Goldbloom

About the Author: William Goldbloom develops and delivers training sessions that educate clients about their legal obligations in the workplace. William also conducts workplace assessments and investigations to help employers prevent, address and resolve issues related to discrimination, physical, verbal and psychological harassment, violence, poisoned environments and bullying.