Regular commenter S. Rivlin emailed me to describe a distressing situation in academia and to ask for advice:
I write to you to solicit your opinion on a recent grievance case I am privy to at my university. I hope you’ll find the time to respond, considering that you are back from your Sabbatical and fully engrossed in teaching and mothering.
The grievance was filed against a head (a man) of a research institute for harassment, and against the chairman of the department of which that institute belongs to and the dean of the medical school, for not taking action to stop the harassment. The grievant is a faculty member of the institute (a woman and a close friend of mine) who did everything possible to avoid the grievance process by attempting to resolve the issues internally, but to no avail.
All the men against whom the grievance was filed are considered administrators by the university and as such were provided with legal council by the legal office of the university. Faculty members have the choice of going through the grievance process with or without a legal council of their own however, if they choose to have a legal council they must hire an attorney from outside the university and be responsible for their own legal expenses. The grievant here chose to have an attorney to represent her in the proceedings.
Now mind you, the grievance process main aim is to resolve internal disputes by dealing with them in-house without resorting to the outside court system. Actually, the bylaws by which all faculty members and administrators agree to abide include the grievance process. It is thus understood that any grieving faculty member must use this process and prove to the grievance committee members assembled for the hearings that the grievance is justified and that the wrong done must be corrected. Once the proceedings are over, the committee must decide whether or not the grievant has proved her allegations and if she did, must conclude that the wrong must be corrected. If the grievant has failed to prove her case, she could still decide then to proceed through the court system on her own time and expense.
In this particular grievance case, the grievant proved, using documents and witnesses, that harassment had occurred and that she had suffered emotional, financial and professional damages. The grievance committee agreed that the harassing party had used his power of authority to hinder the grievant’s career, including her ability to apply and secure NIH grants, and that the Chairman of the department and the Dean of the medical school did not follow the grievant request to intervene on her behalf. Actually the Chairman and the Dean ignored an action advice by outside experts’ that they themselves had sought and received.
The whole affair, from the beginning of the harassment until the grievance committee final decision was reached, lasted almost five (5) years. Since the Dean of the medical school was one of the administrators involved in the grievance, the university Provost had been informed regularly during the proceedings and the final report of the grievance committee was sent to her. However, it is not part of the grievance committee’s mandate to recommend steps to correct any damage the grievant had suffered. It is generally understood and accepted that once the grievant had proved that wrong has been done to her, it is up to the university administration to act to correct that wrong.
Thus, the grievant in the above case sent a letter to the university Provost in which she asked that the university will allot her at least a two-year budget to allow her lab staff and to be paid and supplies to be purchased (all her grants ran out) and also that the university will pay her attorney fee, which amounted to $25,000. Below is the Provost’s response, which was sent on August 7, 2009, almost 40 days after receiving the faculty member’s letter:
This is in response to your letter of July 1. The grievance is concluded and my role in that process ended. While I cannot agree with the conclusion stated in your letter concerning your performance and current status as a probationary faculty member, the issues you raise and any requests you make should be addressed to your department chair and your dean. In addition, I must decline your request for reimbursement of legal fees.
The chance that the grievant’s chairman will come up both with good will and over $250,000 (two year budget) to help the grievant recover from the wrong done to her are slim to none.
Obviously, this faculty member is going to lose her technician and postdoc, her lab space and, unfortunately, her career as a scientist. I have advised her that he only action left for her is a civil suit against the university in an attempt to at least salvage the monetary equivalence of the rest of her working years. Based on previous cases, this case will never reach the inside of a courtroom. The university will drag its feet for months and even years, hiring its own legal team, collecting depositions and doing everything possible to discourage the lawsuit. If the faculty member is still standing on her feet by then, the university will settle the case outside the courtroom.
I am wondering how you would advice this faculty member. Feel free to post this email on your blog if you think that your readers’ insight could help.
My advice to the grievant in this case would depend very much on her priorities going forward. At this point in the process, there are a few distinct questions worth considering:
- What is the best outcome the grievant can achieve for her own self?
- Is there further action the grievant can take to alert the faculty at her university to the ways the grievance process fails to protect faculty or to provide them with remedies against harms like harassment?
- Is there further action the grievant can take to draw public attention to the ways the grievance process failed in this particular case, providing administrators with an incentive to remedy this particular situation and/or to fix the grievance process?
Salvaging a good outcome (professionally and financially) for the grievant is a distinct goal from trying to fix a broken system, and both are distinct goals from making transparent to the public the kind of abdication of responsibility that the university policies seem to have made possible in this case. There may be ways to achieve (or move closer to) all three goals simultaneously, but it’s not a sure thing.
Sol’s read on the situation is that, in the aftermath of this five year grievance process, the grievant will probably not be able to get another position in academic science. If her hope was to secure such a position, there might be a good argument for being cautious in pursuing legal remedies — getting a reputation as “litigious” or a “troublemaker” could make the job hunt harder. (There’s a worry that rides shotgun with the fear that being branded a troublemaker takes one out of contention in academic job searches, namely that the other universities where one might find a job are just as likely to be sites of harassment whose grievance procedures tend to protect the harassers rather than the academic scientists being harassed. Could there be anything more depressing that coming through a five year grievance process, managing to find another academic position in which to start over, and then being caught in a similar situation of harassment with no real hope for relief?)
If Sol is right, and the grievant in this case is essentially out of contention for a job in academic science, there is less reason to fear that pursuing a civil case will wreck her future in academic science. It’s already wrecked. The question then is what a civil action against the university is likely to accomplish.
Here, let me pause to remind you all that I am not a lawyer, and that I do not have a lot of experience to draw on as far as civil litigation goes. Consulting lawyers who do have this kind of experience, especially in pursuing legal actions against universities, would be a very good idea.
That said, the grievant here proved her case to the satisfaction of the grievance committee. The issue seems to be that the grievance committee does not have the power to make the university administration correct the wrong — and that the university administration seems perfectly happy to excuse itself from remedying the situation. I’m inclined to think that the grievant could make the same case in a civil lawsuit, and that this case would be strengthened by the fact that the grievance committee judged that she had proven her case. The big question for a civil trial would be whether the university administration has a legal obligation to correct the wrong here.
If the university does adopt a strategy of trying to delay the lawsuit reaching a courtroom, it strikes me as the sort of situation that might interest local journalists or national journalists covering the higher education beat. One question such journalists might dig into is how much money the university is spending on legal efforts to discourage or delay the lawsuit, and whether this amount of money is less or more than what it would have spent by correcting the wrong as the grievant requested.
In these trying budgetary times, I reckon, administrators need to be ready to account for their spending decisions.
Is the grievant interested in fixing the broken grievance system so that other faculty at the university will not have the same gruesome experience of being wronged, proving they have been wronged, and then having the university opt out of remedying the harm? Given her history with the university, she might well decide that she needs to prioritize her own future and let the university faculty take responsibility for fixing their broken system. But if the grievant is so inclined, she might reach out to other faculty to make them aware of the ways the grievance process could fail them.
Many of us cling to the hope that the bad things that happen to other people are something they somehow brought upon themselves, or else flukes. This is a way for us to tell ourselves that similar bad things won’t happen to us (because we’re being smart, not rocking the boat, playing nice with others, etc.). Potentially, a case like this could be a wake-up call to complacent faculty members — this is an instance where the grievance committee ruled for the grievant and yet nothing was done to remedy the wrong that she grieved. Moreover, it is an instance where the university seems to place the good of the administrators well above the good of the faculty members.
Faculty members might have second thoughts about placing their welfare in the hands of this sort of grievance process. And, unless they have faced an issue that they could not address directly, they may not realize that they are bound by university policy to use this grievance process.
With enough internal pressure from the faculty, the university might well need to revisit the process, either giving the grievance committee the power to institute remedies, or making explicit the requirement that administrators implement remedies to address the wrongs proven to the grievance committee’s satisfaction. (A faculty union might be one way to bring such pressure to bear.)
The bottom line, I think, is for the grievant to be clear about her goals and to choose the actions most likely to advance those goals.
To the extent that those goals include getting the university to change a broken system, my sense is that change is most likely to come when the costs of not changing are judged to be too high. Whether those costs include monetary legal judgments, internal pressure from university faculty, or unfavorable publicity remains to be seen, but I think all of these options should be left on the table.
I welcome the insight of my readers on this situation (especially if any of you have been directly involved in a situation like this as a litigant or a lawyer).