Universities should protect students, not reputation: Professors call for elimination of confidentiality deals

A University of Windsor law professor is criticizing her employer for remaining silent about a former tenured colleague who was investigated following allegations of harassing students and left the university but has since found work at another school.

Julie MacFarlane has added her voice to a chorus of people calling for the elimination of non-disclosure agreements, or NDAs. She said senior officials at her university should not keep quiet about the allegations against the professor even if it means the school could be sued for breaking the terms of a settlement she believes it reached with him. 

"I think the moral responsibility of an institution like a university has to come above its legal responsibility," said MacFarlane.

"I would say, 'Suck it up,' because the mistake [of settling] was made."

The agreements, which some employers have used to protect the details of financial settlements with individuals who've made claims of harassment or misconduct, were cast into the spotlight by the #MeToo movement.

In academia, non-disclosure agreements can be a way of getting a faculty member to agree to leave a university without the institution risking a costly defamation suit or entering into prolonged arbitration, but some faculty and students say they are unethical, undermine universities' commitment to transparency and leave students vulnerable.

'Climate of intimidation and fear'

MacFarlane said she began hearing complaints about a male colleague in 2013. He was a popular, tenured associate professor teaching in the law faculty at the time who had received several teaching excellence awards.

But the complaints suggested he also displayed favouritism toward some students and fostered inappropriate friendships with others.

MacFarlane said that the complaints prompted her and five other professors in the law faculty to contact the dean of the law school at the time, Camille Cameron, and the university president, Alan Wildeman, who launched a formal investigation.

"[The professor] has created and sustains a climate of intimidation and fear among our students," said a draft copy of a letter the six faculty members sent to Wildeman, provided to CBC News by MacFarlane.

The letter claimed students' complaints indicated that the professor was "cultivating friendships" with some students "that may be highly inappropriate in nature" while "expressing extreme hostility towards others."

MacFarlane later learned that one of her research assistants, who did not want to be quoted when approached by CBC News, alleged she was subject to romantic advances and other forms of sexual harassment by the law professor.

According to MacFarlane and a close friend of the research assistant, the behaviour included repeatedly asking her out and emailing the friend to get information about her.

The friend, whom CBC agreed not to name, said the research assistant expressed concerns at the time that the professor had been pressuring her to go on dates with him and made her feel uncomfortable about their relationship.

Attended parties, made female students uncomfortable

Several law students CBC News spoke with, including some who took classes from the professor, said he repeatedly crossed the line of appropriate student-teacher relationships. They said he would befriend students on social media and show up at student parties.

"There's lots of drinking involved. I was surprised to see a professor at one of those kinds of events," said Chris Rudnicki, a law student who was a member of a student group that clashed with the professor over certain positions it advocated on tuition and student affairs.

Rudnicki, who was a mentor to other students during his time at the university, also heard from other female students.

"One of my students was a first year, and she told me — completely unprompted — that [the professor] has been around her friends and had been making them feel very uncomfortable with the comments that he was saying and with the kinds of suggestions that he was putting to them," he said.

Taught at U of T while investigation underway

In January 2014, the professor was relieved of his teaching duties while the university conducted an investigation into his conduct.

But in September of that year, MacFarlane said, she learned that while still on leave from the University of Windsor, he had secured temporary employment as an adjunct professor in the law faculty at the University of Toronto.

"To fail to notify the U of T law school administration of the situation would be unconscionable," MacFarlane wrote in an email to Wildeman.

Wildeman said he was aware the professor was at U of T but that the administration had to act "within its legal obligations and constraints" when it came to discussing the investigation.

"I would ask that you not have any communication with the U of T on this issue," he wrote.

But MacFarlane said she ignored Wildeman's request and contacted colleagues at the University of Toronto. Weeks later, she said, the professor was no longer at the university.

The University of Toronto wouldn't comment on his time there or the reasons for his departure, citing privacy.

West Indies university received only 'favourable recommendations'

By early 2015, MacFarlane had learned from another colleague that the professor's employment at the University of Windsor had been terminated under a clause of the faculty's collective agreement governing dismissal for just cause and that he had grieved the dismissal.

Under that agreement, such action can only be taken if the president of the school has grounds to believe that failure to do so would "result in appreciable physical or emotional harm to a person associated with or guest of the university."

MacFarlane said she learned that the university, to avoid arbitration, later settled with the professor. The university would not confirm that a settlement was reached, but in April 2017, MacFarlane learned that the professor was teaching in the faculty of law at the University of West Indies in Mona, Jamaica.

MacFarlane said she emailed the dean of the law school, Leighton Jackson, to inform him of the University of Windsor investigation and he said he was "alarmed" at what he was hearing about his new hire.

"I was not able to get any information regarding anything negative in relation to [him]," Jackson wrote in an email to MacFarlane.

"It was on this basis that we hired him, based on the recommendation that came from Windsor and other favourable recommendations that we received."

MacFarlane said that made her think the professor must have signed a non-disclosure agreement with the University of Windsor. The university did not inform the six professors who brought forward the students' complaints of the outcome of the investigation and would not confirm to CBC News whether an NDA was signed.

University cites privacy and labour law

CBC News contacted several members of the University of Windsor law faculty, the former dean of law, the university president as well as faculty and the administration at the University of West Indies, but none, other than MacFarlane, would comment on the case.

In an email to CBC News, Wildeman, said the school does not discuss specific personnel matters. However, he said the university "strives to make as much information available to the public and other employers as it can in the context of relevant collective agreements, employment law and privacy law.

The employer is going to be concerned about making any statement publicly about any employee.- Patrizia Piccolo, labour lawyer

Patrizia Piccolo, a lawyer who specializes in employment law, said while it's in the interest of the employee to keep details of their termination secret, it's also in the interest of the employer to sign an NDA if it helps them avoid the costs of arbitration, which the employer could lose.

"It's certainty versus uncertainty," Piccolo said.

If the University of Windsor, for example, were to breach the settlement it reportedly reached with the professor and reveal details about his departure, he may be able to revive his grievance against the university, Piccolo said.

"There are repercussions of breaching the agreement, which include … reigniting the grievance or having him go and seek further damages because of damage to his reputation," Piccolo said.

"The employer is going to be concerned about making any statement publicly about any employee — in this case, the professor — because they're going to be concerned about being caught in a defamation suit."

NDAs a way to avoid lawsuits

When it comes to serious misconduct that affects students, universities should refuse to sign non-disclosure agreements or similar deals that impose confidentiality, says MacFarlane.

"In the university community, we pride ourselves on this idea that we … try to foster a climate in our schools of openness and integrity and transparency. And what's been done in this case is the exact opposite of all those things."

Stephen Saideman, the Paterson Chair in International Affairs at Carleton University, said that confidentiality almost always only protects the perpetrator and the university, not the student.

He has been vocal about the issue, writing on his blog in 2016 that while he was teaching at McGill University, a political science professor there who was alleged to have harassed a student was, in effect, being protected by the school administration, which enforced confidentiality in his case.

"Their job is not to protect their reputation. Their higher priority is to protect their students."

More recently, 150 faculty members at McGill signed an open letter criticizing the "lack of transparency" around how sexual misconduct complaints involving faculty are handled and calling for an external investigation. The letter came in the wake of student criticism of how allegations of abusive behaviour and sexual misconduct in the Faculty of Arts were handled.

'We need better options'

The nature of how confidentiality is enforced in cases of alleged harassment makes it difficult to establish what exactly a university's ultimate determination was in any one case and prevents both students and teachers from ever learning how the matter was resolved.

Charlene Senn, a professor of women and gender studies at the University of Windsor, said the preferable outcome is to have the perpetrator gone and the details of the dismissal publicly available. Still, if the school has to make a choice, it's better to have a non-disclosure agreement than to rack up hefty legal fees justifying an employee's dismissal in court and possibly have to pay damages, she said.

"It may be that currently, there are several bad options and that you have to choose from the bad ones. In the long run, we need to work on it more ... we need better options," Senn said.

When asked about the ethics of non-disclosure agreements at universities, Tanya Blazina, a spokeswoman for the Ontario Ministry of Advanced Education and Skills Development, would only say that the board of governors of each institution is responsible for how it addresses student complaints against staff

MacFarlane says the way her university handled the law faculty case is a black mark on an otherwise honourable institution.

"I am proud of my law school, and I am proud of the work that my colleagues do, and I am proud of my university," she said.

"But in this respect, I think they have failed miserably."

If you have any information you wish to share on this topic, contact lori.ward@cbc.ca, mark.gollom@cbc.ca or via CBC Secure Drop