Thursday, March 10, 2016

The New Harassment--When University Administrators Use Allegations of "Harassment" and "Hostile Work Environment" Against Dissenting Faculty

Issues of harassment on the basis of sex, sexual orientation, race, religion, and other legally protected categories have been at the forefront to news in academia of late.  The events at the University of California at Berkeley involving a faculty member in the department of astronomy and the dean of the Law School are only the latest in a string of reminders of the importance of protections against harassment and hostile work environments (see here and here).  Yet, these instances of abuse underline not just the individual acts but also the ill effects and abusive potential that results from the disparities in authority in those relationships that make such conduct harder to avoid.

But universities are also institutions where shared governance plays a vital role in university administration and where ideas are intended to be developed, challenged and debated as part of the process of knowledge making and dissemination. 

It is in this context that while one understands and most laud the use of harassment protections as a shield against societally disapproved conduct, one might wonder: to what extent might administrators use allegations of harassment and hostile environment against faculty members dissenting in discussion of policy or suggesting that policy is unsound or in violation of other rules? 

This post considers that issue.  

It suggests that the use by administrators of harassment and hostile environment, given in power relationships between administrators and their faculty, some of whom they might have the power to terminate directly (fixed term faculty for example)  is itself inherently subject to abuse and in some circumstances might itself constitute acts contributing to a hostile work environment for which the administrator ought to be disciplined.  The tragedy here, of course, is that administrators may make these allegations with impunity and faculty claims of hostile environment following the use of these tactics will tend to be ignored.  It is a tragedy because--at the point that an administrator resorts to these tactics and faculty make their counter claims--such actions indicate the kind of departmental or unit crisis that calls for senior administrative interventions that are rarely invoked and for which senior administrators appear to be poorly equipped.

Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. (Here).
Penn State, like many similarly situated institutions mirror this basic approach to defining and prohibiting harassment.  It's Policy AD85 provides in part:
Harassment means behavior consisting of physical or verbal conduct that substantially interferes with an individual’s employment, education or access to University programs, activities or opportunities. Harassment may include, but is not limited to, verbal or physical attacks, graphic or written statements, threats, or slurs. Whether the alleged conduct constitutes prohibited Harassment depends on the totality of the particular circumstances, including the nature, frequency and duration of the conduct in question, the location and context in which it occurs and the status of the individuals involved.
Any type of Harassment is prohibited at the University. To constitute prohibited Harassment which can lead to discipline under this Policy, however, the conduct must be such that it detrimentally affects the individual in question and would detrimentally affect a reasonable person under the same circumstances.
These basic rules are supplemented by something of a waiver in the context of academic discourse and shared governance.
The University is committed to its long-standing tradition of academic freedom and free expression. The University is an institution whose members may express themselves, while protecting and respecting the rights of others to learn, to do research, and to carry out the essential functions of the University free from interference or obstruction. When addressing complaints of violations of this policy, the University will take all permissible actions to respond appropriately while respecting the rights of free expression and academic freedom. See HR64, AD47 and AD51.
HR 64 speaks to academic freedom, which is unrestrained except to the extent that the university might restrain it.  Those restraints are based on the university's assessment of a number of factors grounded in "special obligations" that appear to arise by virtue of their "office" as a faculty member, including among others "appropriate restraint" when a faculty member otherwise exercises his role as a citizen.  When a faculty member speaks or writes on governance issues they may do so "without institutional discipline or restraint" other than such rules that may generally apply in an unspecified way. When faculty members speak in the classroom they are forbidden to discuss "controversial topics outside or unrelated to his/her own field of study." 

AD 47 means to "set forth statements of general standards of professional ethics to serve as a reminder of the variety of obligations assumed by all members of the academic community."  Among these, the "special obligations" of the "office" of faculty are elaborated. These include "to seek and to state the truth as they see it" (AD 47(I)), and "to exercise critical self-discipline and judgment in using, extending, and transmitting knowledge." (Ibid).  Particularly relevant, are faculty ethical obligations as members of the university community (AD 47 (V)).  These require faculty to "observe the stated regulations of the institution, provided the regulations do not contravene academic freedom, they maintain their rights to criticize and seek revision." 

AD 51 speaks to the use of outdoor areas for expressive activities. These are meant to provide time, place and manner regulation for the use of university property for the expression of "divergent viewpoints." And these, too, are generally framed within constraints of "civility, concern for the safety of persons and property, respect for University activities and for those who may disagree with their message."

Taking these together let us consider the following hypothetical:
A unit administrator--a dean or department head or the like--has developed an agenda for moving "forward".  The agenda involves a number of changes that has provoked some strong faculty opposition. During the course of a series of faculty meetings faculty members have voiced their opposition strongly.  They gave suggested both that the proposed changes, or at least some of them, are unwise, and that some might violate university policies in some way. 
The administrator has argued, equally forcefully, (1) that she disagrees with the position of dissenting faculty; but she further suggests that the opposition itself has created a climate of fear and intimidation and that faculty, fearful of the dissenting faculty, are now unable to speak freely, (2) that she finds the tone of the dissent "toxic" and contributing to a lack of collegiality that would be possible only under a consensus developed through her leadership and adherence to her ideas; and (3) that she is offended by the failure by dissenting faculty to adopt a more "conciliatory" attitude and that this perverts and detracts from her ability to engage in effective shared governance.  
At individual meetings thereafter with faculty she indicates that she is now inclined to bring dissenting faculty up on "charges" of harassment (of her and the rest of the faculty) and of creating a hostile work environment by reason of the form and delivery of their dissent.  In any case she will take these conclusions into account in her evaluation of faculty.  When faculty seek to respond, she suggests that such responses might constitute insubordination, and in any case are further evidence of the sort of bad attitude that is "singlehandedly" driving the unit or department down.  In the resulting furor most activity comes to a standstill.  
 What result?

1.  The mere allegations and threats of action will chill any effective exercise of shared governance at the unit. The clearest result is the one least tied to the cluster of rules that define the parameters of acceptable behaviors at Penn State.  This chilling effect is tied to the power relations among faculty and administrator.  Here it is the administrator with the discretion to characterize the interaction of faculty, with little effective ability of faculty to exercise a similar discretion.  Here the conflict of interest is palpable, in the exercise of discretion by the administrator.  It is never clear in this context--except at thje limit, whether the administrator is advancing these allegation as a strategic manner--that is she is using the rules instrumentally to shut down debate, or whether there are substantial issues that require investigation.  And indeed, the mechanics of investigation themselves have the effect of chilling any discourse.  That has become quite clear in the context of harassment allegations against faculty who write or speak to these issues as citizens or with respect to university activity.  The case of Professor Laura Kipnis at Northwestern University is by now well known, and remains controversial (see eg here).  What is most important in that case is not that she was cleared, but that the process of accusation, investigation and clearance itself produced such a burden that other faculty  would now be chilled in any activity that might even raise an accusation. The accusation itself becomes the abuse.  And there is little defense against such abuse; less so when the abuser is an administrator and the context is shared governance. 

2.  Where the dissent itself is at the heart of the accusation, then there ought to be no credible claim of harassment or hostile work environment.  To conclude otherwise is to  embrace the idea that in hierarchically structured academic units, even opposition to unit leader speak, acts or ideas, is itself inherently suspect as insubordinate or hostile (to the unit, the administrator or both) and that this hostility, evidenced in opposition to proposed goals, behaviors, rules, proposals, etc. itself produces a hostile environment.  That may well be the case in a for profit business rigorous organized in para military style.  But, for the moment, does not describe the essence of the relationship among faculty and their unit leaders.  That, at any rate, appears to be the essence of reading HR 64 and AD 47 together.   This goes as well to the argument that a strong dissent chills, in turn, the willingness of other faculty to participate in debate.  There is a difference between political calculation and the chilling effects of harassment or a hostile climate.  A faculty member may conclude that in light of the progress of the debate her contribution would add nothing and affect her relationships without constituting a hostile environment.  The difficulty here of course is that, at its limit, all debate creates an environment hostule to opposing views int he sense that opposing views are rejected.  But the standard ought not to be based on that mis-application.

3.  How dissent is expressed may itself pose more difficult questions. The faculty member who curses out an administrator; the administrator who does the same.  The use of metaphors or expressions that are demeaning ; the ad hominem attack.  These are all signs of conduct that may go beyond what out to be the essence of unconstrained debate in shared governance. Conduct that effectively shuts down debate.  Not ideas that are offensive (to some) but speak conduct that is personally (not institutionally) intimidating likely crosses a line.  But one does not measure intimidation by the effects of speech on the viability of one's proposals, ideas, suggestions or the like.  One can freely deride ideas, and do so forcefully, without deriding or threatening those who favor them. But one cannot add force to argument or physically manifest ideas in ways that interfere with employment, especially when it is grounded in animus toward the individual by reason of a protected characteristic or condition. Opposition to a plan, proposal or idea does not constitute an interference with employment in the sense that ought to be meant by the rule.  Otherwise every decision or action would constitute at least in theory an interference with employment.  

An administrator is not without recourse to "tone" issues.  And faculty owe a minimum of restraint when engaging in discourse with others.  Yet the passing intemperate word, the thoughtless remark in the heat of passion ought not to make a case for harassment or hostile environment standing alone.  To that end a pattern of such behaviors ought to be a prerequisite to action, and a calling out of the momentary lapse ought to be sufficient to maintain discourse.  But that also ought to be a two way street.  It is not merely the privilege of power to call out the misbehavior of subordinates within the context of harassment and hostile environment.  Subordinates ought to be free--and protected--in calling out their superiors for the same sorts of misbehavior.  Yet because that is unlikely to happen in fact, the result is that power asymmetries tend to shape the disciplining of discourse within the constraint of harassment and hostile environment in shared governance, and the administrator tends to assert an overweening power to discipline and very little restraint on her own misbehavior. Indeed, it is here that the power relations inherent in the discussion ought to play a role.  To paraphrase AD 85, given the fundamentally asymmetric nature of the relationship where one party has the power to give advice, evaluations, recommendations, promotions, salary increases or performance evaluations, the nature of the relationship ought to place the burden of restraint on the administrator with the power rather than on her subordinates. 

4.  Offending an administrator ought not to be a trigger for either harassment or hostile environment claims by the offended administrator.  Offense is a reaction that is entirely in the control of the person who chooses to be offended.  Offense is a self constructed response that is all too easily subject to abuse.  One can hardly know or test the good faith of offense and it is not clear that an individual ought to be put to the taste of disproving actionable offense grounded in individual sensibilities.  At the same time one ought not to deliberately act in a way calculated to offend.  That is also in its own way abusive. Again issues of proof and good faith become difficult. The Penn State rules appear to recognize these issues, albeit ambiguously to be sure.  Something like an objective standard, then, is necessary to reduce the likelihood of abuse of the use of offense instrumentally and tactically to confound political enemies. Where asymmetries of power exist, as in the relations between unit administrators and faculty, there ought to be a presumption against offense as a basis for the exercise of disciplinary authority.  Mere offense--grounded in lèse majesté, injured majesty--an offense against the dignity of a reigning unit administrator through opposition, even fierce opposition to administrator desires ought to raise no grounds for action.  Where the offense is personal--ad hominem attacks, for example, then it is not offense at issue but harassment or hostile environment. Any action by an administrator to punish faculty for her personal offense, without more, then violates the spirit and letter of the rules. 

5.  The mechanics of rights protections are heavily tilted toward administrative discretion. The real lesson that emerges form the hypothetical is the difficulty--the heightened costs--for faculty seeking to protect themselves against abuses of administrative power.  As an initial matter it is left to administrative discretion to identify conduct as potentially in violation of Penn State standards, it is easy for administrators to exercise discretion in ways that their own misconduct or unethical behaviors can be veiled (see eg At the Borderlands of Ethics: Soft Retaliation and Unethical Exercises of Administrative Discretion), it is administrators that tend to stand on both sides of the issue (in this case as victims and as enforcers). In our hypothetical there is no really simple and effective mechanism that faculty can use to protect their rights in the face of administrative action. The Penn State rules against retaliation (AD 67), like those of other similarly situated universities, tend to be a crude instrument that tends not to be easily applied in this context. The invocation of Faculty Rights and Responsibilities tends to start a long and sometimes complex process involving lots of time and university resources in which jurisdictional limits may make recourse largely ineffective.

And so what the hypothetical suggests is that while an administrator may violate any number of rules when she invokes claims of harassment or hostile environment in the face of faculty opposition to some plan or action she propounds, there is no real timely and effective mechanism for limiting her recourse to discretionary authority to effectively avoid their sound administration.  For senior administrators this represents yet another large area in need of attention; attention that is unlikely to come anytime soon.

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