Skip to content

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.

SHARE

Archive

Search Archive


Search
Generic filters

 
 

The Winds of Change (Part 4): A Review of Rental and Royalty Regimes for Wind Development on Crown Lands: Options for Newfoundland and Labrador’s Economic Wind Policy

August 3, 2022

By: John Samms, Sadira Jan, Paul Kiley, Dave Randell, Alanna Waberski, and Jayna Green As we explained in our July 6, 2022 “Winds of Change” article, the announcement made by Minister Andrew Parsons on April…

Read More

Update on the Economic Mobility Program for Refugees (phase 2): The Economic Mobility Pathways Project (“EMPP”)

August 2, 2022

Included in Beyond the Border – July 2022 By Brittany Trafford; Fredericton   Brief Overview In an attempt to address the Canadian labour market shortages, the Economic Mobility Pathways Pilot (“EMPP”), was introduced in 2018.…

Read More

HR Best Practices When Employing Foreign Workers

July 29, 2022

Included in Beyond the Border – July 2022   By Brendan Sheridan; Halifax Canadian employers are increasingly relying on foreign workers to fill gaps in the labour market and to provide specialized skills. In 2020,…

Read More

Beneficial Ownership Registry Rules Come to New Brunswick

July 28, 2022

By Alanna Waberski, Graham Haynes and Maria Cummings On June 10, 2022, the Government of New Brunswick proclaimed into force Bill 95, which amends the Business Corporations Act (New Brunswick) (the “NBBCA”) to require corporations…

Read More

Recent trends in defined benefits pension plans – a review of public sector plans

July 28, 2022

Included in Discovery: Atlantic Education & the Law – Issue 10 Hannah Brison and Dante Manna Increased financial volatility caused by recent global events has caused public sector defined benefit (“DB”) pension plans to reflect…

Read More

Atlantic Canada offers immigration pathways for workers in Trucking, Health, Construction and Food Service Industries

July 27, 2022

Included in Beyond the Border – July 2022 By Sara Espinal Henao; Halifax It is a well-known fact that Atlantic Canada needs workers. In the aftermath of COVID-19, regional employers in the trucking, health, construction,…

Read More

The winds of change (part 3): Newfoundland and Labrador releases wind energy guidelines

July 27, 2022

By: John Samms, Matthew Craig, Dave Randell,  and Jayna Green On July 26, 2022 the Province of Newfoundland and Labrador (the “Province”) released “Guidelines: Nominating Crown Lands for Wind Energy Projects” (the “Guidelines”). Described as…

Read More

Trends in tenure and promotion for unionized employers

July 25, 2022

Included in Discovery: Atlantic Education & the Law – Issue 10 By Kate Profit    Tenure is a well known and often discussed topic amongst academics. Viewed by unions as a cornerstone of modern universities,…

Read More

Car-Sharing Comes to PEI – Insurance Implications

July 22, 2022

Dalton McGuinty Jr. and Kegan Bradley On May 17th, 2022, Canada’s largest car-sharing company, Turo, brought their platform to Prince Edward Island. The service allows car owners (lessors) to lend out their vehicles to drivers…

Read More

Federal Government announces significant investments in Nova Scotian clean energy initiatives

July 21, 2022

Nancy Rubin & Tiegan Scott On July 21, 2022, the Federal government announced a new investment of up to $255 million for clean energy initiatives in Nova Scotia. The funds will be allocated in two…

Read More

Search Archive


Search
Generic filters

Scroll To Top