That story didn't make me feel any better about the process. I can see buddy getting fired. But you getting payment? The store as a whole having to issue an apology? Wasting the CEO's time? Every person in the company now gets the pleasure of going through sensitivity training all because of one idiot? The threat of worse because of one bigoted remark?
I imagine a female you breastfeeding on the bus with little regard to anything, just lift the whole shirt off. After all, it's a hot summer day, and it's way hot, so you figure it's your right why not?
In my world, someone would ask "Do you mind covering up a little bit?" and the response is "Sorry, but I can't, it's far too hot for my baby if I do". With the understandng we sympathise with the mother, and even feel a little bad for asking. If someone goes overboard and starts berating her about it, and she is highly disturbed by it, then ya, maybe you do need some sensitivity training. Of course that's a fantasy would with common courtesy and common sense.
In your world (and unfortunately our world) all we need in the same situation is for some old lady to say "You know young lady, in my day we didn't allow ourselves to be seen like that" and the women will respond "Well in MY day we will see you at the human rights tribunal" and before you know it there's a suit against the driver for not controlling the situation and the bus company for allowing it to happen to boot.
In both your and the women on the buses situation though you didn't go nuclear it was only to your discretion and satisfaction that all the people you felt are responsible had payed their dues that you decided to not go forward with a tribunal. Some people would call that settling out of court, but frankly it looks like extortion to me. You might feel that doing these things might compel people to not hold these discriminatory beleifs but for every convert your going to get someone digging in, refusing to change their beleifs, and loosing respect for the court system. Especially one that already has a history of being used as a tool to damage another person (our friend at SFU) with little to no evidience that in the end turned out to be false far after the accusee was wrung thouragly and hung out to drive. A milion well written paragraphs about the oversight and beauty of the system will not unnuclear a nuclear ruling.
In the real world just asking the mother to cover up is discrimination - depending upon the circumstances it may also be harassment.
The case with my partner was not extortion - consider it a needed lesson for both the ex-employee (who learned that there are consequences for her actions) and the employer who hopefully learned to make better hiring decisions and/or provide proper training to staff.
The gift card was simply another species of compensatory damages - just like the bus passes given to the woman from the Victoria bus incident. It is a recognized civil remedy as were the apologies. Getting this bigot fired was more for my personal satisfaction than anything else. And I take issue with the quote "Vengeance is mine sayeth the Lord". I prefer to claim ownership of it myself.
As one of my former law partners once observed - "I would never want to tick you off. You are like a pit bull, you never stop until the other person is on the ground broken and bleeding. And then you continue the attack." As counsel it was a good reputation to have since I was always taken seriously.
I always operate under the principle - Do not get mad... get even and make the **** pay.
Employers are generally responsible for their employees - even the idiots - it is known as vicarious liability. One would hope that the trouble and expense of training current staff would cause the company to change its orientation and training - a good thing IMHO.
Threatening legal action if a matter is not settled is not extortion - if it was debt collection agents would be overflowing the prison system. Perhaps not a bad thing?
I assume your reference is to the Rachel Marsden sexual harassment complaint against SFU swim coach Liam Donnelly. I am quite familiar with the case and have used it as teaching case in administrative law class.
Rachel Marsden seems to be a seriously disturbed individual IMHO who seems to have some sociopathic personality features - she lies incredibly convincingly.
Both parties made counter accusations of sexual harassment and in fact Donnelly reported his allegations of stalking to the police who declined to lay charges against Marsden due to lack of evidence. Remeber at the time sexual harassment policies were still being developed and hearing procedures were in their infancy.
On advice of counsel Donnelly withdrew his claim and declined to participate in the three person internal SFU review panel hearing Marsden's claim - that advice by his counsel was pretty clearly bad advice. Donnelly was notified both verbally and in writing of the possible consequences of his decision to not appear. NOTE - it was not a BC Human Rights tribunal hearing but much less formal and without well formulated rules of procedure at the time.
In the result Marsden's uncontroverted testimony was the only evidence before the internal panel. The panel delivered its report to SFU President John Stubbs which found that Donnelly had violated both section one (general harassment) and section two (sexual harassment) of the policy. The committee recommended dismissal. As required by policy, Stubbs circulated the report to both parties and asked for "submissions."
Donnelly then attempted to present new information to the President, but it was not considered on the advice of the university's lawyer, Anita Braha, who argued that such information had not been provided under oath and had not been subject to examination as had evidence supporting Marsden's complaint. At the same time, Donnelly sought to re-submit the complaint which he had earlier filed, and then withdrew, against Marsden. His request to re-submit came approximately 13 months after his original complaint was filed.
Donnelly's request to re-submit was turned down by the harassment office because it exceeded the policy's time limit which requires that complaints be filed "within six months" of the date of the last alleged incident. Donnelly then appealed to the president for a time waiver, but Stubbs ruled that Donnelly "did not have a reasonable and bona fide cause" for the delay and that such a waiver would not be in the "best interests of justice."
After terminating Donnelly, Stubbs then authorized the payment of $12,000 to Marsden as compensation for the harassment.
Donnelly then discharged his previous lawyer and hired new counsel (Lorly Russell) who immediately moved to challenge the way in which the hearing had been conducted and the manner in which the decision was reached. Questions were raised about the competence of the panel and the fairness of the procedures as well as the secrecy of the proceedings. The internal panel was advised on legal matters by university lawyer Anita Braha, but she was also advising the sexual harassment coordinator, Dr. Patricia O'Hagan. This led to complaints of conflict of interest from several members of the British Columbia legal community who argued that it was wrong for Ms. Braha to advise the investigator (O'Hagan) the internal panel (hearing tribunal) and the President since the President was acting as a single person appeals board in regard to a decision of the panel. The whole process was rife with problems.
An independent mediation and arbitration board, chaired by well-known lawyer and arbitrator Stephen Kelleher, was established to review the dismissal. SFU policy provided for the establishment of such a board in dismissal cases to review "whether the president has exercised reasonable judgement" in formulating his decision. The board's decision would be final and binding on all parties. This was the appeal authority established for such a case.
In the midst of this President Stubbs took a leave of absence. The acting President of the University, Dr Gagan then dropped a bombshell stating publicly that the sexual harassment coordinator, Dr. Patricia O'Hagan had developed a friendship with the complainant, and that Ms. Marsden had been shown the judgment by Dr. O'Hagan before it had been seen by President Stubbs. YIKES.
In addition to Steve Kelleher as chair, the arbitration panel consisted of Fran Watters (nominated by SFU) and Sandra Bannister (nominated by Donnelly). I happen to know all three and they are excellent lawyers, mediators and arbitrators. Marsden was invited to participate, but declined to do so. Given the evidence that Donnelly had assembled to support his case included (according to Mr. Donnelly) explicit photographs and e-mail sent by Ms. Marsden as part of her campaign of harassment, that would not be a surprising decision since I am certain she would not have wanted to be subjected to searching cross-examination.
As a first step the panel was charged to informally try to mediate a settlement under the SFU policy. Donnelly filed his evidence. The arbitration panel reviewed it along with the report of the internal panel, the role of Anita Braha and the actions of President John Stubbs. The arbitration panel found them seriously deficient and said so to the SFU Board of Governors. In the result a hearing was not needed. As a consequence the Board of Governors reversed the decision to fire Mr. Donnelly, gave him his full back pay, and paid his legal bills (up to $60,000). It also agreed to expunge the case from his file and admitted that there were flaws in its procedures.
Dr. Gagan said that "the university regrets what Mr. Donnelly and others have gone through. If we were convinced Mr. Donnelly was guilty of sexual harassment, we would not have reinstated him. We cannot hide the fact that this has done damage to the university's public profile."
The administrative fallout was substantial; SFU President Stubbs resigned after taking medical leave for severe deprtession that developed against the backdrop of the case. The sexual harassment coordinator, Dr. Patricia O'Hagan also resigned. And the entire harassment policy and hearing mechanisms were revised in accordance with the issues and deficiencies that the arbitration panel identified and most Canadian universities followed the lead of SFU changing their policies.
The policies were substantially revised in the wake of the Marsden-Donnelly incident – defines the role of the director of human rights and equity, outlines that person’s duties and responsibilities to the complainant and the respondent, clarifies the need to remain impartial, and sets out strict rules around maintaining confidentiality of information. Here is the current policy:http://www.sfu.ca/po...eneral/gp18.htm
Interestingly the former sexual harassment coordinator, Dr. Patricia O'Hagan would later allege that Marsden had harassed her, claiming to reporters that the student had called her more than 400 times, tracked her down after she'd changed her number, and signed letters, "love from your daughter who loves you a lot." Marsden responded in kind, claiming that she referred to O'Hagan as mother to "set boundaries" with the older woman, who she said had repeatedly hugged and kissed her. "I felt strange," Marsden told the press, "and wondered what her intentions were." O'Hagan's lawyers told the press she "vehemently denie[d]" that she had had "any type of physical relationship" with Marsden.
Clearly the system can be manipulated and Rachel Marsden appears to be a master manipulator but that is no reason to jettison hearing panels and Human Rights tribunals.
To me it seems the system worked - the review authority did what it was intended to do. Part of the problem was Donnelly was withdrawing his complaint not participating in the case against him.
There are very few sexual harassment hearings any longer at SFU. Improved policies, which place an emphasis on mediation or internal processes for resolving complaints, is one explanation. Better education for faculty, staff and students, and a general awareness of where “the line” is when it comes to sexual harassment are also factors. And the fact that more women hold positions of power in universities today has also had an impact.
As always a hearing before a panel or tribunal should be a last resort but it must remain an option in such cases.