Universities and colleges should have policies broad enough to cover both
In July 2019, Claudine Gay, dean of Harvard's Faculty of Arts and Sciences, advised that Professor of Economics, Roland G. Fryer Jr., had been placed on administrative leave for two years, to be followed by two years of supervised probationary return to academic engagements. This disciplinary action was imposed after an investigation by Harvard's Office of Dispute Resolution concluded that Professor Fryer had "engaged in unwelcome sexual conduct toward several individuals, resulting in the creation of a hostile work environment over the course of several years" within Professor Fryer's Education Innovation Laboratory ("EdLabs").1 The Office of Dispute Resolution also documented behaviour that was not sexual harassment, but that was determined to violate the Faculty of Arts and Sciences' Professional Conduct Policy.
CONSEQUENCES OF ACADEMIC SUSPENSION
Professor Fryer's disciplinary sanction will extend well beyond the two year administration leave, as when he returns to Harvard, he will not be permitted to teach graduate workshops, nor will he be permitted to have teaching fellows. As an accomplished African American economics researcher in a field without much racial diversity, Professor Fryer's suspension has garnered media attention. In particular, attention has been drawn to the fact that Professor Fryer's EdLabs will remain closed for at least the next two years. EdLabs was focused on researching the cause of racial achievement gaps in education, and how these gaps could be closed.2 In an e-mail to the New York Times, Harvard graduate student and former EdLabs employee, Tanaya Devi wrote "We devoted our lives passionately to the cause of racial differences and now that has forcefully been ceased by Harvard administrators," and "My research with Prof. Fryer on criminal justice in America is halted for 4 years. I am trying hard to understand how Harvard deems this to be 'just.'"3
The dean of the Faculty of Arts and Sciences, in her statement to the members of Harvard's economics department regarding Professor Fryer's discipline, stated that the sanctions on Professor Fryer were an appropriate response to documented behaviours. She did, however, acknowledge the loss of the important work of EdLabs, indicating that "research to inform policy decisions that combat educational inequality has never been more urgently needed" and that Harvard's economics department will "continue to find ways to support this important work".4
THE IMPORTANCE OF POLICIES
Harvard's disciplinary action against Professor Fryer highlights the ever-increasing importance of having policies in place which address a wide range of unwanted behaviour and unprofessional conduct. Although Professor Fryer's behaviour was not explicitly described as "sexual harassment", Harvard recognized that his behaviours were nonetheless unwelcome in a professional working environment. Having a professional code of conduct in place allowed the Faculty of Arts and Sciences to respond to the allegations with a thorough investigation, and authorize discipline as a result.
FREEDOM OF EXPRESSION?
Where behaviour or expression does not constitute, or is not described as, "sexual harassment", but is instead found to be "unwelcome sexual conduct" as in Professor Fryer's case (or any behaviour that violates a code of conduct for that matter), questions may arise about whether the propagator of the behaviour may be protected by freedom of expression. Protecting and encouraging freedom of expression, while also ensuring a safe and effective learning environment, can be a difficult balance for universities and colleges to strike. The free speech guidelines in place at Harvard's Faculty of Arts and Sciences are helpful in providing guidance on how this balance may be achieved:
Speech is privileged in the University community. We are equally committed to the individual's pursuit of inquiry and education. There are obligations of civility and respect for others that underlie rational discourse. Racial, sexual, and intense personal harassment not only show grave disrespect for the dignity of others, but also prevent rational discourse.5
University harassment and sexual harassment policies should be forthright in acknowledging that the value of freedom of expression, and should, like Harvard's Faculty of Arts and Sciences' free speech
guidelines, also recognize that expressions should be respectful and civil. Having a section within harassment policies dedicated to same, or alternatively, a separate freedom of expression guideline in place, may be the best defence if a university faces a challenge to disciplinary action which has been imposed on a faculty member for behaviours or expressions that do not quite reach the threshold of harassment or sexual harassment, but otherwise violate a university code of conduct.
Disciplinary actions which are imposed on university professors can be controversial. On the flip side, the reputational risks of failing to take corrective disciplinary action against professors that the public views as deserving of sanction, is at an all-time high. This recent discipline of Professor Fryer highlights the seriousness with which universities are treating all allegations of unwelcome sexual conduct, and is a good reminder that universities should be consistently reviewing and updating their sexual harassment policies and professional and community codes of conduct on a regular basis.
Policies should also be written in clear, easy to understand language, so that faculty, students and staff not only understand what type of behaviour is unacceptable, but also how to report incidents of sexual harassment, and what to expect from the investigation and discipline processes. Updated, official versions of all policies should be readily available in electronic and paper form, and accessible both online and on campus.
If your institution does not have a current, well-drafted, respectful workplace, harassment and sexual harassment policy in place, these should be implemented. Stewart McKelvey can assist with reviewing policies, developing and drafting new collective agreements and policies, advising on your institution's responsibilities and potential liabilities, providing in-house training for staff, legal advice and representation and ongoing support.
1 John S. Rosenberg, "Harvard Sanctions Professor Roland Fryer Severely" (10 July 2019), online (accessed August 13, 2019): Harvard Magazine ["Harvard Sanctions Professor "].
2 The Education Innovation Laboratory at Harvard University, online (accessed August 13, 2019):
3 Ben Casselman and Jim Tankersley, "Harvard suspends Roland Fryer, Star Economist, After Sexual Harassment Claims" (10 July 2019), online (accessed August 13, 2019): The New York Times
4 Harvard Sanctions Professor, Ibid, note 1.
5 Harvard University Faculty of Arts and Sciences Free Speech Guidelines (As adopted by the Faculty of Arts and Sciences on February 13 and May 15, 1990) online (accessed August 13, 2019): & Harvard Sanctions Professor , Ibid, note 1.
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