When Union Demands Run Up Against Legal Obligation

Graduate student unionization efforts need to account for the requirements of Title IX, the federal gender-based anti-discrimination law.

March 27, 2020

Columbia is committed to providing a learning, living, and working environment free from discrimination and harassment and to fostering a nurturing and vibrant community founded upon the fundamental dignity and worth of all of its members. The University does not tolerate any form of unlawful discrimination or harassment, sexual assault, domestic violence, dating violence, stalking, or sexual exploitation and all such conduct is prohibited.  According to the Employee Policy and Procedures on Discrimination and Harassment, “the University strongly encourages those who have experienced, witnessed or become aware of conduct that violates the policy to come forward so that the University can take appropriate steps to prevent such conduct from occurring in the future and to ameliorate its effects.”

This policy and procedures manual, which is consistent with Title IX, a federal gender-based anti-discrimination law, has come up during graduate student unionization because this federal law has an impact on the negotiations.

Q: What exactly is the issue here?

A: Union representatives want graduate students to be able to resolve all disputes related to discrimination and harassment including sexual or gender-based harassment according to the grievance procedures in the collective bargaining agreement, which would include the opportunity to pursue third party arbitration. Graduate Workers of Columbia University-United Auto Workers Union (GWC-UAW) has stated that at the top of their priorities is having the University agree to an independent arbitration process for discrimination and harassment cases. The current GWC-UAW proposal would make available to its bargaining unit members this labor arbitration process as an alternative to the University’s current EOAA process that is required by Title IX.

Q: Why is Columbia opposed to GWC-UAW’s proposal?

A:  This proposal is problematic for three reasons.

First, it creates an inequitable process, inconsistent with Title IX regulations. An arbitration process available to bargaining unit members would give student workers a separate process not available to all others. This means that some students would be able to have their discrimination claim pursued to arbitration by the union while others in the community would not. This is inconsistent with both current and proposed Title IX regulations that require an equitable process, with an equitable investigation conducted by a trained investigator. Arbitration is not an investigation, and an arbitrator is not an investigator.

Second, it does not punish offenders. An independent arbitrator would have no authority to impose sanctions or punishment on individuals found to have violated the University’s Title IX policies. 

Third, it subjects Complainants and Respondents to cross examination. A standard labor arbitration process, as GWC-UAW has proposed, would potentially subject any individual who is a Complainant or Respondent, and witnesses, to a cross-examination setting, whether they are members of the bargaining unit or not. The University and the UAW have both opposed certain proposed changes to U.S. Department of Education regulations, in part, because of concerns over this type of cross examination.

Q: Why has this issue been so difficult to negotiate?

A: This issue presents special challenges for higher education because the union representing the graduate students is asking Columbia to do something that is inconsistent with its legal obligations under Title IX. Title IX applies to all universities that receive federal funding, so Columbia must adhere to its requirements.

Q: What is Columbia’s proposal?

A: The University has policies and procedures in place to ensure that matters related to discrimination and harassment are dealt with appropriately, in compliance with the law.

The University’s proposal reiterates its commitment to providing a learning, living and working environment free from unlawful discrimination and harassment and its policy, in accordance with applicable laws, not to tolerate unlawful discrimination or harassment in any form. The University proposal further expresses its ongoing commitment to provide those who feel that they are victims of discrimination with mechanisms for seeking redress as demonstrated by its existing policies, procedures and available resources.

The University has invited the union representatives to make suggestions on how we can enhance our current process while following federal regulations.