| Topic: | Employees, Employment and Workplace, Faculty, Staff, Students: Conduct and Responsibilities |
|---|---|
| Approval Authority: | Board of Governors |
| Approval Date: | 2021/04/04 |
| Effective Date: | 2021/06/15 |
1. Purpose
1.1 Whereas York University recognizes the dignity and worth of every member of the York University community (“Community Member”);
1.2 And whereas York University seeks to provide for equal rights and opportunities without discrimination that is contrary to law;
1.3 And whereas York University has as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each Community Member so that each person feels a part of York University and able to contribute fully to the development and well-being of the York University community.
2. Scope and Application
2.1 In this Human Rights Policy (hereinafter this “Policy”), York University affirms its commitment to human rights, and, in particular, to the principle that every member of the York community has a right to equal treatment in services (including education, facilities, or, accommodation (hereinafter “housing”), contracts, and employment, without harassment or discrimination on the grounds prohibited by the Ontario Human Rights Code, as amended. This Policy maintains the prohibition on discrimination or harassment on the basis of race or colour from any preceding policy.
2.2 Any Community Member who infringes a right of any other Community Member which is protected by the Ontario Human Rights Code, as amended, shall be subject to complaint procedures, remedies, and sanctions set out in the University's policies, codes, regulations, and collective agreements as they exist from time to time, and to such discipline (up to and including suspension, expulsion or discharge) or such other remedies as may be appropriate in the circumstances.
2.3 To the extent that any other York University policy, code, regulation, or collective agreement provides any greater right or benefit than provided by this Policy or the Human Rights Code, nothing in this Policy derogates from any such greater right or benefit. To the extent that any other York University policy, code, regulation or collective agreement provides any lesser right or benefit, this Policy will take precedence. Related York University policies are listed at the end of this document.
2.4 This policy applies to:
a. Those persons involved in conducting York University affairs including:
i. All registered York University students;
ii. York University student groups and their members;
iii. York University employees including retired or emeritus employees;
iv. Volunteers;
v. Contract workers;
vi. Members of the Board of Governors and the Senate, and
vii. Employees of organizations representing the University while they are either on or using University property or participating in University programs and activities, on or off the University’s premises.
b. This policy applies in the following contexts:
i. where a Community Member experiences the infringement of a right under this Policy that is alleged to have occurred either on University premises or at a University-related event on- or off-University premises; and
ii. to virtual environments such as any form of electronic or social media where there is a substantial connection to University programs or activities.
3. Definitions
In this Policy,
“Age” means an age that is 18 years or more, except in respect of housing where the Community Member is a person who is 16 or 17 and has withdrawn from parental control.
“Community Members” means students, staff, and faculty of York University.
“Disability” is defined in accordance with the Human Rights Code, as amended.
“Discrimination” is defined in accordance with the relevant policy, code, regulation, or collective agreement applicable to the person(s) or incident(s) at issue. “Discrimination” is established in the Ontario Human Rights Code as the absence of equal treatment. “Equal” is defined in the Code as having its plain and ordinary meaning, but,
…subject to all requirements, qualifications, and considerations that are not a prohibited ground of discrimination.
“Harassment” is defined in accordance with the relevant York University policy, code, regulation, or collective agreement applicable to the person(s) or incident(s) at issue. The definition of harassment from the Ontario Human Rights Code, as amended, also applies to Community Members in respect of services, housing, and employment:
Harassment means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.
“Family status” means the status of being in a parent and child relationship.
“Marital status” means the status of being married, single, widowed, divorced, or separated, and includes the status of living with a person in a conjugal relationship outside marriage.
“Prohibited Grounds of Discrimination” are those generally immutable personal characteristics, group memberships, or identities, upon which basis it is prohibited to treat Community Members in an unequal way and/or to harass Community Members, as listed in the Ontario Human Rights Code, as amended:
a. Services, Goods, Facilities
race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status, or disability;
b. Employment
race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status, or disability;
c. Housing
race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status, disability, or the receipt of public assistance.
“Record of offences” means a conviction for an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or an offence in respect of any provincial enactment.
“Sex” as one of the Prohibited Grounds of Discrimination includes the right to equal treatment without discrimination because a person is or may become pregnant.
“Sexual harassment” is defined and prohibited by York University’s Policy on Sexual Violence. Sexual harassment is also defined and prohibited by the Ontario Human Rights Code.
“Spouse” means the person to whom a person is married or with whom the person is living in a conjugal relationship outside marriage.
4. Policy
4.1 Services
a. Community Members have the right to equal treatment with respect to services (including education) and facilities offered by York University without discrimination or harassment on any of the applicable Prohibited Grounds of Discrimination.
4.2 Housing
a. Community Members who are eligible for York University housing have the right to equal treatment with respect to such housing without discrimination on any of the applicable Prohibited Grounds of Discrimination.
b. Community Members who occupy housing provided by York University also have a right to freedom from harassment by the University or by an occupant of the same building on any of the applicable Prohibited Grounds of Discrimination.
4.3 Employment
a. Community Members have the right to equal treatment with respect to employment at York University without discrimination on any of the applicable Prohibited Grounds of Discrimination.
b. Community Members who are employees also have the right to be free from harassment in the workplace by the employer or agent of the employer or by another employee because of any of the applicable Prohibited Grounds of Discrimination.
4.4 Sexual Harassment
a. Community Members who occupy York University housing have the right to be free from harassment because of sex, sexual orientation, gender identity, or gender expression by the University or by an occupant of the same building.
b. Community Members employed by York University have a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity, or gender expression by their employer or agent of the employer or by another employee.
c. Community Members have the right to be free from a sexual solicitation or advance made by a person in a position to confer, grant, or deny a benefit or advancement to the Community Member where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome.
d. Community Members have the right to be free from reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the Community Member.
4.5 Prohibitions
a. No Community Member shall infringe or do, directly or indirectly, anything that infringes a right of any other Community Member under this Policy, or the Ontario Human Rights Code, as amended.
b. Every Community Member has a right to claim and enforce their rights under this Policy, to institute and participate in proceedings under this Policy or other appropriate proceedings and to refuse to infringe a right of another person under this Policy, without reprisal or threat of reprisal for so doing.
4.6 Deemed Discrimination
a. A right of a Community Member to access services, housing, or employment provided by York or another Community Member is infringed where a requirement, qualification, or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction, or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
i. the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
ii. it has been legislated in the Ontario Human Rights Code that to discriminate because of such ground in the specified circumstances is not an infringement of a right.
b. A requirement, qualification, or factor is not reasonable and bona fide in the circumstances unless the needs of the group in which the Community Member is included cannot be accommodated without undue hardship to be incurred in accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
4.7 Special Programs, Affirmative Action, etc.
a. A right under this Policy is not infringed by the implementation of a special program (also known as “affirmative action”) which is designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity or that is likely to contribute to the elimination of the infringement of rights under this Policy.
4.8 Enforcing Rights
a. A Community Member may seek to enforce their rights under this Policy as against any other Community Member through the procedures provided in the relevant policies, codes, regulations, and collective agreements of York University as they exist from time to time (see s.7 below) as may be applicable to that Community Member or the incident(s) at issue.
b. In the absence of any other applicable procedure, a Community Member may make a formal complaint to the Centre for Human Rights, Equity, and Inclusion, according to the Procedure for Dealing with Complaints of Harassment and Discrimination (see s.7 below).
c. Community Members who make a complaint against another Community Member in bad faith or for a vexatious purpose may be subject to disciplinary action.
5. Roles and Responsibilities
5.1 The Vice-President of Equity, People, and Culture or their delegate is authorized to establish and amend procedures, protocols, or guidelines pursuant to this Policy.
5.2 The Executive Director of the Centre for Human Rights, Equity, and Inclusion will implement and apply such procedures, protocols, or guidelines as are amended from time-to-time.
5.3 Any potential Complaint involving the Centre for Human Rights, Equity, and Inclusion or any of its staff shall be referred to the office of the Vice-President for Equity, People, and Culture, whose office shall assume the roles otherwise performed by the Centre in processing Complaints under the applicable procedure(s).
6. Review
6.1 This policy will be reviewed at least once every five years commencing from the date of its approval.
6.2 The review and amendment process will be led by the Executive Director of the Centre for Human Rights, Equity, and Inclusion and will include consultation with representatives of the University’s elected student governments, with consideration of input from a diverse selection of students, faculty, and staff.
7. Procedures
7.1 University-Initiated Complaints
a In situations where an affected person has disclosed an alleged incident of human rights infringement but does not wish to pursue a Complaint, the Executive Director of the Centre for Human Rights, Equity, and Inclusion may consult with the Vice-President, Equity, People, and Culture to determine whether there is an overriding safety, security reason, or statutory obligation for the University to initiate and pursue a Complaint through to the investigation stage.
b. In making this determination, the Executive Director of the Centre for Human Rights, Equity, and Inclusion and the Vice-President, Equity, People, and Culture will consider all relevant circumstances including, but not limited to:
i. the severity of the alleged incident and the harm inflicted;
ii. the potential risk to other members of the community;
iii. the wishes of the affected person;
iv. the location of and circumstances in which the incident allegedly took place;
v. the likelihood of effective resolution without the involvement of the affected person;
vi. any potentially relevant statutory or collective agreement provisions.
c. When the Executive Director of the Centre for Human Rights, Equity, and Inclusion and the Vice-President, People, Equity, and Culture determine that the University will pursue a University-Initiated Complaint it is always the choice of the affected person whether to participate in any resulting investigation or complaint process.
d. In any investigation of a University-Initiated Complaint, the University shall appoint a Nominal Complainant in place of the affected person. The Nominal Complainant shall not have had any prior involvement in the matter.
e. Once a University-Initiated Complaint is brought forward for investigation, it shall follow the established procedure applicable to the employee or student group in which the Respondent is a member.
f. The Nominal Complainant has the power to withdraw or resolve the Complaint, and shall be guided in making such decisions by having regard to:
i, The progress of the investigation to date, including availability and cooperation of witnesses;
ii. The interests of the University Community;
iii. The interests and wishes of the affected person, and;
iv. The relative merits of any resolution proposal.
7.2 Procedure for Dealing with Complaints of Harassment or Discrimination
This procedure does not form part of the Policy, but is only attached to it. It may be amended from time to time, independent of the Policy review and amendment process, established above.
a. These procedures are not intended to extinguish rights and remedies available at law, including grievance, to any of the parties or persons concerned.
b. In order to help facilitate the informal resolution of complaints covered by these procedures and treat Complainants and Respondents fairly, reasonable steps will be taken throughout these procedures so that only those who need to be made aware of a complaint in order to administer or participate in these procedures are provided with information about a complaint. Further, all memoranda and reports made in the course of action taken pursuant to these procedures shall be considered to be confidential to the parties involved and to those who, in providing advice and carrying out duties contemplated in these procedures, have a need to know of their existence and content.
c. The Complainant (and the Respondent, where appropriate) shall be informed by the relevant office (e.g. the Centre for Human Rights, Equity & Inclusion (the “CHREI”), the Dean’s Office, or the Centre for Sexual Violence Response, Support & Education (“the Centre”), as applicable that a union representative or an advocate of their choice may accompany them throughout the process described below.
d. An individual who believes they have a complaint covered by these procedures shall have the option of discussing the incident(s) with the Dean’s Office, CHREI, the Centre or directly filing a complaint under the applicable University policy or program. Deans/Principal or designates who receive a complaint about workplace violence, harassment or discrimination by an individual will provide that person with a copy of these procedures and assist that person in making an appointment to discuss the incident(s) with the CHREI or the Centre as appropriate. Deans/Principal or designates who receive such a complaint shall prepare a brief written memorandum to the CHREI, or the Centre as the case may be setting out the date and time the Complainant first contacted them, and confirming that they gave the Complainant a copy of these procedures and assisted the Complainant in making an appointment with the CHREI or the Centre as the case may be and will forward this Memorandum to the CHREI or the Centre forthwith. Deans/Principal or designates shall not keep copies of such memoranda.
e. normally, within ten (10) working days following this discussion the Dean/Principal or Designate, CHREI, or the Centre (“Relevant Office”) shall make a preliminary determination as to whether the complaint is one which:
i. is based on facts which have occurred more than one (1) year prior to the date of the lodging of the complaint; or
ii. might be resolved informally; or
iii. might be resolved by mediation; or
iv. might not be resolved informally or by mediation and requires a formal complaint and investigation; or
v. is trivial, frivolous, vexatious or made in bad faith
f. Where it appears to the Relevant Office that the facts upon which the complaint is based occurred more than one (1) year before the complaint is made, unless it is established that the delay was incurred in good faith, the Relevant Office may recommend that the University not deal with the complaint. Any individual who believes they have a complaint covered by these procedures is encouraged to come forward with the complaint as soon as possible.
g. If, in the opinion of the Dean/Principal or Designate, CHREI, or the Centre (“Relevant Office”) the complaint is trivial, frivolous, vexatious or made in bad faith, it will so advise the Complainant and may decline to process the complaint further.
7.2.1 Informal Resolution
a. If the matter is one which, in the opinion of the Relevant Office and the Complainant, might be resolved informally, the Relevant Office will use its reasonable efforts to assist the parties involved in effecting an informal resolution which, if achieved, will be the end of the process. The parties to any such resolution may include the Respondent and (where required or desirable) representatives of the union(s) of which each of the Complainant and Respondent are members and the University represented by a Dean/Principal or Designate.
b. Advice given to a Complainant by CHREI concerning informal resolution will be reflected in a memorandum prepared by the CHREI and acknowledged by the Complainant. If the Complainant names the Respondent and the Respondent is named in the memorandum, the Respondent must be notified by the Relevant Office and provided with information about the allegations/concerns in writing.
c. At any point in the process, either party may request mediation or a formal investigation.
d. The parties agree that discussions that occur in the context of seeking an informal resolution are without prejudice and cannot be relied upon in subsequent steps of these Procedures in the event a resolution is not achieved.
7.2.2 Mediation
a. If the matter is one which, in the opinion of the Relevant Office, the Complainant and the Respondent might be resolved by mediation, the parties will be referred to mediation. Within ten (10) working days of such referral, a mediator will be appointed. Within ten (10) working days the mediator will then coordinate a meeting between the mediator and the parties involved.
b. The participants to any such mediation will include the Complainant and Respondent, representatives of the union(s) of which each of the Complainant and Respondent are members, the University (represented by the Deans/Principal or designates of the area(s) in which each of the Complainant and Respondent are employed) and a representative of any other department that will be affected by the result of the mediation.
c. The outcome of the mediation will result in one of the following:
d. No resolution is reached and the Complainant decides to withdraw the allegation and take no further action.
e. A resolution is reached, written up and signed by all participants to the mediation. Each of the parties to the mediation shall receive a copy.
f. No resolution is reached and the Complainant requests that the matter proceed to the Formal Complaint and Investigation stage.
7.2.3 Formal Complaint and Investigation
a. If a matter is one which could not be appropriately dealt with by informal resolution or mediation, or has not been resolved by either informal resolution or mediation within a reasonable time, the CHREI will upon request assist the Complainant in preparing a formal complaint (as applicable) or the Complainant may file a complaint independently. A formal complaint will be in writing and signed by the Complainant, and, where appropriate, includes a complaint contained in a grievance under a Collective Agreement.
b. A copy of the formal complaint will be promptly forwarded to the Respondent and to the Dean/Principal/Vice-President in whose area the Respondent is employed and if the Complainant is an employee, to the Dean/Principal/Vice-President in whose area the Complainant is employed.
c. The Respondent may submit a written response to the formal complaint to the appropriate Dean/Principal/ Vice-President within ten (10) working days of receiving a copy of the formal complaint.
d. Within fifteen (15) working days of receiving a formal complaint and the response, if any, the Dean/Principal/Vice-President shall determine whether a formal investigation is warranted, and if so will appoint an investigator to look into and report on the facts surrounding the formal complaint. The investigator shall promptly conduct an investigation of the allegations giving rise to the complaint and compile a draft investigation report (normally within thirty (30) working days). The investigator will have had no previous involvement with the complaint in any of the processes under this Appendix prior to the appointment of the investigator.
e. If the Dean/Principal/Vice-President determines that an investigation is not warranted, both the Complainant and Respondent shall be notified and provided a written rationale.
f. Upon receiving a formal complaint against an employee in their area the Dean/Principal/Vice-President will promptly (in consultation with the employee and/or Faculty Relations, or with other University officials as appropriate) make a decision as to what remedial action, if any, should take place in the workplace while the investigation is taking place. The investigation report will not give any direction with respect to disciplinary action.
g. The investigator shall apprise the Complainant and Respondent of progress toward completion of the investigation and shall provide a copy of the draft investigation report to each of the Complainant and the Respondent, who shall have ten (10) working days in which to notify the investigator, in writing, of any errors or omissions in the report and the description of the facts or allegations provided by each of them to the investigator.
h. The investigator shall forthwith after receiving any comment provided for above make such further enquiries, if any, as are necessary and prepare a final investigation report. The final report will not draw any conclusions with respect to disciplinary action. A copy of the investigation report will be given to the CHREI, the Complainant, the Respondent, representatives of the union(s) of which each of the Complainant and Respondent are members, and the University.
7.2.4 Administrative Action
a. Within twenty (20) working days of the receipt of the investigation report, the President or Dean/Principal / Vice-President in whose area the Complainant and/or Respondent are employed shall consult as appropriate and shall make and communicate a decision or give directions on:
i. what remedial action, if any, shall be taken or continued in the Respondent’s workplace in the circumstances;
ii. whether the facts as revealed in the investigation report are such that some managerial action is warranted in the circumstances, and if so what managerial action (including the disposition of a grievance, disciplinary action or discharge) is so warranted.
b. A copy of the decision shall be sent to each of the Complainant and the Respondent, and representatives of the union(s) of which each of the Complainant and Respondent are members and, if applicable to CHREI.
7.2.5 Reprisal
a. No person shall be penalized for bringing forward a complaint in good faith, or for cooperating in the resolution or investigation of any complaint.
7.2.6 Penalties for Vexatious or Bad Faith Complaints
a. Individuals who make a complaint against another person in bad faith or for a vexatious purpose may be subject to disciplinary action.
7.3 Procedures Applicable to Community Members
The relevant procedure applicable to an alleged infringement of a right under this policy is determined with reference to the category to which the Community Member said to be responsible for the infringement belongs.
7.3.1 Complaints Against Students
a. Student conduct is governed by the Code of Student Rights and Responsibilities and is also subject to measures that instructors may adjudge necessary such as exclusion from the classroom, under the Senate Policy on Disruptive and/or Harassing Behaviour in Academic Situations.
b. Allegations that a student has infringed a right under this Policy may be addressed pursuant to a Complaint through the process overseen by the Office of Student Community Relations.
c. Allegations that a student has infringed a right relating to sexual harassment (including violence) may be addressed pursuant to a Complaint through the process set out in s. 11 of the Policy on Sexual Violence.
7.3.2 Complaints Against Faculty
a. Faculty conduct is governed in part by the Policy on Workplace Harassment Prevention and the Policy on Workplace Violence Prevention, and also by the collective agreements between York University and its various faculty bargaining units.
b. Allegations that a member of the York University Faculty Association has infringed a right under this Policy may be addressed pursuant to a Complaint under the procedure in Appendix “Q” to the collective agreement between the York University Faculty Association and York University, or pursuant to a Complaint under the Policy on Workplace Harassment Prevention or the Policy on Workplace Violence Prevention.
c. Allegations that a faculty member in other bargaining units has infringed a right under this Policy may be addressed pursuant to a Complaint under the Policy on Workplace Harassment Prevention or the Policy on Workplace Violence Prevention, or pursuant to a Complaint to the Centre for Human Rights, Equity, and Inclusion under the Procedure for Dealing with Complaints of Discrimination or Harassment.
d. Allegations that a faculty member has infringed a right relating to sexual harassment (including violence) may be addressed pursuant to a Complaint through the process referenced in the Policy on Sexual Violence.
7.3.3 Complaints Against Staff
a. Staff conduct is governed in part by the Policy on Workplace Harassment Prevention and the Policy on Workplace Violence Prevention, and may also be governed by the collective agreements between York University and its various staff bargaining units.
b. Allegations that a member of York University’s staff has infringed a right under this Policy may be addressed pursuant to a Complaint under the Policy on Workplace Harassment Prevention or the Policy on Workplace Violence Prevention, or pursuant to a Complaint to the Centre for Human Rights, Equity, and Inclusion under the Procedure for Dealing with Complaints of Discrimination or Harassment.