Six months into contract negotiations — and three months after Harvard and its graduate student union have agreed on a tentative proposal — a union-proposed grievance procedure for sexual harassment and discrimination complaints remains the center of contention.
HGSU has proposed that in instances of discrimination or harassment against members of its bargaining unit, the University must respond to the grievance within a set period of time. If the union deems the University’s response unsatisfactory, it can allege that the contract has been violated and request to move into third-party arbitration to resolve the matter.
The union has argued that Harvard’s current Title IX procedures — the processes by which Harvard enforces the federal anti-discrimination law — cannot be objective because the investigative office is affiliated with the University. They also argue their proposal would protect student workers from a wider range of discriminatory behaviors.
The University has rejected the union’s proposal, maintaining that student workers should pursue complaints through the University’s internal procedures. A third-party grievance procedure would create “adversarial processes for HGSU-UAW members,” University Provost Alan M. Garber ’76 wrote to Harvard affiliates in an emailed bargaining update last week.
At the heart of the conflict is whether third-party arbitration would necessarily require cross-examination between the person alleging discrimination and the alleged perpetrator, and whether Harvard could enforce findings or decisions made by an outside party.
Shelley B. Kroll, the legal counsel for HGSU, wrote in an emailed statement that the proposed grievance procedure would not necessarily require “face-to-face confrontation.”
“The Union could request sequestration when the survivor testifies, and if Harvard is concerned for the survivor, they could agree,” Kroll wrote. “If Harvard would not agree, the arbitrator would make the decision.”
Sequestration can take on many forms, but broadly involves avoiding face-to-face confrontations.
Former National Labor Relations Board Chairman William B. Gould IV said that while arbitration typically “requires both examination and cross-examination,” there has been a “great deal of dispute” when it comes to university union grievance procedures.
“It's quite possible that some kind of modification could be fashioned to deal with this problem,” Gould said. “This is really new, uncharted territory. The general rule is, you have the right to confront your accuser.”
Gould said that arbitrators can choose to sequester witnesses, but this typically occurs to ensure the “authenticity of individual witnesses,” not because of the case’s sensitivity.
Vice President of Labor, Employment and Elections at the American Arbitration Association Ann S. Lesser said that standard arbitration procedures do typically include cross-examination.
Still, she said labor grievance procedures are customizable to each contract and that HGSU could avoid cross-examination by requesting meditation instead of arbitration, for example.
“It all depends on what the parties have agreed to,” Lesser said.
The Harvard Union of Clerical and Technical Workers — which represents more than 5,000 Harvard employees who primarily work in libraries, labs, and faculty offices — uses a grievance process involving binding mediation rather than arbitration, according to its contract.
HUCTW President Carrie E. Barbash said that her union believes arbitration is not “productive for actually resolving the issue.”
“We definitely don't use cross-examination in our procedure, and we feel like our procedure has been very effective,” Barbash said.
University spokesperson Jonathan L. Swain wrote in an emailed statement that HGSU has not proposed “anything like” mediation.
Harvard has also raised concerns about its inability to be governed by third-party arbitration. University President Lawrence S. Bacow said in an interview earlier this month that a third-party arbitrator would have no legal authority to discipline anyone outside of the union’s bargaining unit.
HGSU bargaining committee member Ege Yumusak ’16 wrote in an email that HGSU’s proposed grievance procedure is not meant to discipline the accused party, but rather to hold the University accountable to non-discrimination policies.
“If an arbitrator finds that Harvard has maintained a discriminatory work environment, or if the arbitrator finds that a student worker has been subjected to harassment, then the arbitrator can order a change to the work environment to ensure that, going forward, the student worker can work and study in an environment free from harassment or discrimination,” Yumusak wrote.
Several university student worker contracts across the country include discrimination grievance procedures, including the University of Connecticut and the University of Washington.
David K. Parsons, president of UAW Local 4121, the graduate student union at the University of Washington, said his university did not “kick up a big fuss” about discrimination grievance procedures during initial contract negotiations in 2004.
“They also acknowledge that this is a process that is fair, it doesn't have to be at the exclusion of other internal university processes,” Parsons said.
University of Connecticut Graduate Employee Union President Mary H. Bugbee said that her union had to work to convince its university to agree these grievance procedures, but they ultimately did.
Swain wrote that, despite other schools’ contracts, Harvard does not believe grievance is an “appropriate” way to pursue discrimination and sexual harassment claims.
“Not all contracts between universities and graduate students unions allow for grievance and arbitration of sexual harassment and discrimination claims – including not all UAW contracts,” Swain wrote.
Swain also wrote that the University’s internal procedures are “specifically designed to meet the legal obligations the University has under Title IX.”
“It is not at all clear that the arbitration process proposed by HGSU-UAW would be the sort of prompt and equitable resolution process that Title IX requires universities provide,” Swain wrote.
—Staff writer James S. Bikales can be reached at firstname.lastname@example.org. Follow him on Twitter @jamepdx.
—Staff writer Ruoqi Zhang can be reached at email@example.com. Follow him on Twitter @RuoqiZhang3.