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Law prof fighting for tenure track loses legal battle

Indigenous scholar argues that assessment process was unfair
|Written By Gabrielle Giroday
Law prof fighting for tenure track loses legal battle
Andrew Monkhouse says ‘requests for accommodation need to be sought out as far in advance as possible.’

The British Columbia Human Rights Tribunal has determined that the University of British Columbia did not discriminate when it did not grant tenure to an assistant Indigenous law professor or promote her to associate professor.

The assistant professor, Lorna June McCue, said the university has discriminated against her on the basis of “race, colour, ancestry, place of origin, marital status, family status and sex” after the university did not promote her or award her tenure. 

In 1998, McCue — a member of Ned'u'ten First Nation — was hired at the university’s faculty of law, and she became an assistant professor and director of First Nations legal studies in 2000. Typically, after seven years, an assistant professor will be assessed over their future at a teaching institution, such as being awarded tenure or being promoted to associate professor. However, in McCue’s case, after a time delay for a parental leave, tenure was not awarded. McCue had received earlier notice from a dean that there was concern about a lack of peer-reviewed publications on her part.

However, she argued that the university had not appropriately assessed her scholarly contributions, including oral presentations she had delivered.
“Ms. McCue argues that UBC’s approach to assessing her applications for promotion and tenure and for PSA and Merit Pay were based on preconceived, mischaracterized, and unilateral ideas concerning her personal characteristics as an Indigenous female law scholar,” said the ruling. McCue argued that “the metrics used to measure her work by UBC were culturally inappropriate” and did not recognize the importance of Indigenous oral traditions. 

“She argues that the scholarly activity, teaching, and service she performed at UBC was governed by her choices generated from protected grounds, which required her to ensure that various aspects of her Indigenous scholarly contributions maintained integrity with her Indigenous traditions in order to have credibility and be reputable with both Indigenous and non-Indigenous societies,” it added.

However, the university strongly disagreed, saying they considered her “non-peer-reviewed oral dissemination of knowledge” when making determinations about her suitability for promotion, and they made exceptional efforts to try to help McCue achieve success. They also submitted that there is usually the expectation of five to six peer-reviewed publications by a candidate, but this was not applied as strictly in McCue’s case.

“UBC submits that Ms. McCue has failed to prove that her Indigeneity was a negative factor in how the University assessed her or how it applied its criteria to her. They say that to the extent that her Indigeneity was a factor, it resulted in more favourable treatment,” said the ruling.

“UBC points to what they perceive is an argument by Ms. McCue that unknown, non-expert, Indigenous members of her community are her peers and that their general statements of support and endorsement should be granted an equivalency to publication in peer-reviewed journals. They point to evidence from their witnesses that such statements lacked the objectivity, independence and academic rigour of a peer review process,” it added.

The legal matter included 19 days of evidence, and tribunal member Norman Trerise concluded that the complaint was not justified and that McCue had failed to request accommodation from the university around how to submit materials needed to assess her candidacy.

“The decision, respecting scholarly activity, was based on a significant paucity of information respecting the details of her oral publications which prevented them from being evaluated sufficiently for quality and significance,” said the ruling. “The lack of information to allow evaluation of Ms. McCue’s candidacy did not derive from her choice to publish orally. It derived from Ms. McCue’s lack of interest, for whatever reason, in the process to achieve promotion and tenure.”

Trerise noted that McCue had been cautioned that some peer-reviewed publications were necessary, from about 2004 to 2009.

“She did not articulate any objection to those criteria but, rather, informed the Dean she was complying. Had she requested accommodation she could have had discussions with the Faculty respecting the need to be able to evaluate her material and how that might be accomplished, such as simply recording her oral presentations,” said the ruling.

UBC spokeswoman, Leslie Dickson, said the tribunal’s decision "reflects current tenure practices and policies at universities across Canada."

"UBC carefully considered this complaint, taking into account its many complexities,” she said in an emailed statement.

Andrew Monkhouse, a senior lawyer and founder of Monkhouse Law, says the key takeaway from the ruling was that McCue did not flag her request for accommodation soon enough. Monkhouse says if McCue had issues with the way the information contained in presentations was shared for consideration, her concerns should have been more clearly articulated.

“One, requests for accommodation need to be sought out as far in advance as possible, and to keep it consistent,” he says. “And two, at the end of the day, you have to [be] clear about what you’re asking for, when there’s accommodation.”

The tribunal found that McCue was not sufficiently clear about what she had requested, he says. He says, more generally, it’s important for lawyers to guide their clients to be honest with their employers when it comes to human rights issues, for example, around health limitations considered to be a disability.

“For human rights [issues], even if it might be embarrassing or difficult, it’s extremely important to identify what the issue is and be honest with your employer,” he says.

Editor's note: Comment from the University of British Columbia was added March 13 when it was received after writer's deadline.





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