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Client Update: Untenable tenure: discrimination complaint from Indigenous professor dismissed

Chad Sullivan

Overview

An Indigenous law professor filed a human rights complaint against the University of British Columbia claiming the university discriminated against her in failing to consider her less traditional scholarly work as akin to traditional peer-reviewed scholarly work.

Ms. McCue argued that the concept of “peer review” had no application to her as an Indigenous female scholar and the university had an obligation to consider her work which was oral in nature and which included service to her Indigenous community, when considering whether to grant her tenure.

The Human Rights Tribunal (“Tribunal”) ultimately dismissed the claim, holding that the work had to be capable of assessment by conventional peer review.

Background

In McCue v. The University of British Columbia, an Indigenous professor, Lorna June McCue, made a complaint to the British Columbia Human Rights Commission against her employer, UBC, alleging discrimination on the basis of race, colour, ancestry, place of origin, and sex after UBC denied her tenure, promotion, performance salary adjustments (“PSA”) and merit pay.

Four years after being placed on tenure track at the rank of Assistant Professor, the Dean wrote to Ms. McCue and cautioned her that she had not yet published peer-reviewed contributions at the expected rate to be granted tenure. In order to assist Ms. McCue in this regard, the Dean removed her administrative responsibilities and reduced her teaching load. The Dean wrote several more letters over the years and repeatedly reminded Ms. McCue that she needed to focus on her publishing efforts in order to be considered for promotion and tenure. During this time, Ms. McCue repeatedly assured the Dean that she was working on articles for publication. At no time did she raise any human rights issues and she never requested any accommodations.

Ms. McCue filed a human rights complaint after her application for tenure was denied.

The Complainant’s position

Ms. McCue claimed that UBC’s approach to assessing her scholarly work was based on “preconceived, mischaracterized, and unilateral ideas” concerning her personal characteristics as an Indigenous female law scholar. She argued that the metrics UBC used to measure her work were “culturally inappropriate” and led to discrimination in that UBC failed to attach sufficient weight to her Indigenous scholarship, teaching, and community service. She insisted on a broad interpretation of the Collective Agreement so that her oral conference presentations would be considered scholarly activity equal to written peer-reviewed publications.

The university’s position

UBC argued that Ms. McCue was not entitled to challenge the standard set out under the Collective Agreement and further argued that each time Ms. McCue was reminded about the expectations under the Collective Agreement, she told UBC that she was working on publications. At no time did she ever suggest that her Indigeneity was a barrier to her work performance until the parties were engaged in the tenure candidacy evaluation process which was 6 years after the Dean first warned Ms. McCue about the publication expectations.

UBC argued that that it evaluated all the work Ms. McCue submitted – but it could not assess her oral work because it was not recorded in any way. Further, the work it could assess did not meet the high standard of quality and significance required for tenure.

Tribunal’s decision

The Tribunal held that did not have jurisdiction to entertain an appeal of UBC’s tenure and promotion process or to review UBC ’s academic decisions. The Tribunal’s sole task was to determine whether the process resulted in discrimination against Ms. McCue contrary to the provisions of the Human Rights Code. In other words, were Ms. McCue’s Indigeneity and/or sex factors in UBC’s denials of tenure, promotion, PSA, and merit pay?

While Ms. McCue alleged that UBC did not consider her scholarly activity, the evidence showed otherwise. The Tribunal found that UBC took a broad approach under the Collective Agreement and searched for evidence of scholarly activity in all of the work that Ms. McCue put forward.

The problem was that the material Ms. McCue provided to UBC for review was largely incapable of evaluation. The majority of the content of her CV consisted of a list of invited presentations, conferences, and a small selection of non-refereed publications. This provided no information regarding the quality or quantity of work. The Tribunal also noted that the space for peer-reviewed publication was empty in Ms. McCue’s CV.

The Tribunal rejected Ms. McCue’s suggestion that UBC had a duty to inquire into her cultural traits in order to explore why her behaviour was at odds with their expectations. Given the fact that Ms. McCue repeatedly told UBC that she was working on publications, this reinforced UBC’s expectations that she was working toward traditional scholarship.

The Tribunal held that Ms. McCue did not raise the issue in a timely manner. If she had raised this issue earlier, there would have been time to explore different approaches to Indigenous scholarship. UBC would have been obligated to work with Ms. McCue if she had informed UBC that she was pursuing scholarship by oral tradition.

The Tribunal found that there was no nexus between Ms. McCue’s Indigeneity or sex and UBC’s decision to deny her tenure or promotion. For that reason, the Tribunal dismissed Ms. McCue’s complaint in its entirety.

What this means for colleges and universities

This case examines cultural issues within the context of academic tenure and promotion. Based on the Tribunal’s comments regarding less traditional forms of scholarship and Indigeneity, colleges and universities may have to consider alternate forms of scholarly work in the peer review process when assessing professors of Indigenous heritage. There were specific reasons why that did not happen in Ms. McCue’s case. In the future, colleges and universities should be prepared for the possibility that some Indigenous faculty members may request accommodations and/or consideration in the tenure process based on non-traditional forms of scholarly work.

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