As members of Harvard’s graduate student union hit the picket lines on the first day of their strike Tuesday, University negotiators posted a position statement online arguing that the union’s proposed procedure for adjudicating sexual harassment and discrimination complaints may be in conflict with Title IX.
This procedure — along with proposals on compensation and healthcare — lies at the root of the deadlock between the University and Harvard Graduate Students Union-United Automobile Workers. After 28 bargaining sessions since October 2018 have failed to resolve these issues, union members launched their long-threatened, indefinite strike Tuesday.
The union has proposed that student workers be given an option to raise sexual harassment and discrimination complaints through a union grievance procedure — a dispute resolution mechanism outside of current internal Harvard channels, and one that could eventually lead to third-party arbitration in some cases. The University, on the other hand, has insisted that these complaints be handled through Title IX complaints and its Office for Dispute Resolution, and through internal discrimination procedures.
Title IX is a federal anti-discrimination law that underpins Harvard’s approach to handling complaints of sexual and gender-based misconduct.
University negotiators believe that the union’s proposals violate Title IX regulations that require that procedures adjudicating these types of complaints must guarantee involved parties an “equitable resolution,” according to the University’s position statement posted to a website devoted to negotiations.
The University said that according to a U.S. Department of Education Office of Civil Rights Q&A from 2017, an “equitable investigation” is one in which the “rights or opportunities” of one party must be available to the other on “equal terms.”
“Under the HGSU-UAW proposal, the student worker through union representation, would have access to an arbitration process, but other non-HGSU-UAW members of the Harvard community would not,” the statement reads.
Arbitration would also not meet the requirements of an investigation because an arbitrator is not a trained investigator, according to the statement.
HGSU did not respond to a request for comment on the University’s position statement.
The University also argued that the possibility of cross-examination could have a “chilling effect” on reporting, according to the statement. It rejected the union’s argument that arbitration would only occur if the University chooses to pursue it, instead arguing that it would be the prerogative of the union to request arbitration.
In addition to procedural concerns, Harvard’s statement also addresses what it sees as issues with the potential outcome of arbitration processes.
The University argued that an arbitrator would not be able to sanction perpetrators of harassment.
“Under the HGSU-UAW proposal, an arbitrator would have no authority to issue sanctions or punishment on an individual if a violation of the University's Title IX Policy were determined in the outcome of an arbitration hearing,” the statement reads.
William A. Herbert, executive director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions at Hunter College at the City University of New York, said that recent non-discrimination procedures reached at other universities demonstrate that “creative” compromises can be found with regard to discrimination procedures between unions and universities.
One possible compromise is to split up different categories of discrimination and make some of them subject to the grievance procedure, and others not, he said. At American University, for example, only categories of discrimination not covered by federal, state, or local law can be put through the union contract procedure. For cases covered by law, complainants can pursue resolution through government agencies.
University spokesperson Jonathan L. Swain declined to comment on Herbert’s remarks. HGSU representatives did not respond to a request for comment.
Another example of a compromise — currently in place at Brandeis and Tufts — is that discrimination complaints would be investigated by the University according to its own procedures. If the union is dissatisfied with the result, it can choose to take the case to arbitration under its contractual procedure, as opposed to the grievant making the decision of whether the case should go to arbitration.
“These contracts show the creativity that was applied that allows for resolution of the issues,” Herbert said.
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