Howard Levitt: Toronto Metropolitan University has a problem that no diversity statement can solve

Toronto Metropolitan University has a problem that no diversity statement can solve.

Its own independent review, headed by a former Ontario Court Of Appeal Justice, contains evidence that Jewish faculty members, staff and students have become afraid to be visibly Jewish at work.

Many participants told investigators that they had experienced antisemitic incidents and feared for their physical safety, while several said they had gone “underground” for fear of being identified as Jewish.

Stop there for a moment.

Imagine an employee at any major Canadian institution telling an independent investigator that members of her community have gone underground because they no longer feel safe identifying themselves.

Would we call that an inclusion problem?

A communications problem?

A disagreement over politics?

Or would we ask whether the employer had created a workplace that had become intolerable?

That is the question Toronto Metropolitan University has to confront and long ago should have.

The external review, conducted by former Justice Mary Lou Benotto and Margot Finley, was not commissioned by a newspaper columnist or an advocate looking for ammunition. It was commissioned by TMU itself to examine the university’s handling of an increasingly bitter campus conflict involving Israel, Palestinians, Jewish students and faculty, protests, free expression and campus safety.

The reviewers heard from people on all sides.

And what emerges is not a picture of a university successfully managing an extraordinarily difficult debate. It is a picture of an institution where trust collapsed.

Some Jewish faculty and staff told the reviewers they were withdrawing from campus life. Some were reluctant to identify themselves publicly as Jewish. Some were afraid to speak about Israel or antisemitism. Some no longer knew whether they could safely raise concerns with administrators.

Those are not people engaged in an energetic academic debate.

They are the words of employees retreating from their workplace.

And there is another passage in the report that is, in some ways, even more revealing.

TMU considered whether the opposing camps should be brought together for dialogue. That would seem like an uncontroversial proposition at a university, a rather obvious first step toward reconciliation and healing.

If two groups cannot stand each other, perhaps they should talk.

If Jewish students believe pro-Palestinian activism has long crossed into antisemitism, and pro-Palestinian students believe accusations of antisemitism are being used to silence Palestinian advocacy, perhaps the university should create a forum where they can dialogue with, even challenge, each other directly. That is what universities are supposed to do.

But the report records serious resistance to the idea.

Students for Justice in Palestine and others made clear that they did not want to engage with Students Supporting Israel.

And Professor Joshua Sealy-Harrington, who now is tenured at Windsor law school, went further.

He argued against dialogue, warning that it could itself normalize Zionism.

“Promoting dialogue is not neutral. As Zionism continues to collapse, ‘dialogue’ initiatives have already become an intentional strategy of pro-Israel activists who are seeking to normalize Israel during an unprecedented period of its belatedly recognized abnormality as a modern settler colonial — and thus, genocidal state.”

You might question how most Jewish students would react to having him as their instructor.

This is an extraordinary position for a university to have to confront.

Not because Professor Sealy-Harrington is forbidden from holding it. He is not.

Academic freedom protects professors precisely because universities should contain people with controversial views.

But consider what the position means for the institution.

One side says, in substance, we do not want to sit down with the other side. A professor supporting that side tells the university that even promoting dialogue between the groups is not neutral.

Meanwhile, Jewish members of the university community are telling the reviewers that they no longer feel safe identifying themselves as Jewish.

And TMU is supposed to maintain a functioning academic workplace in the middle of all this. Fat chance of that!

This is not an argument that TMU should force Palestinians to embrace Zionists or force Jewish students to embrace anti-Zionists.

It is an argument that the university has a responsibility to maintain an environment in which people can disagree without one group effectively disappearing from public life.

That is particularly important for professors.

Students can graduate. Professors (and staff) remain. They return to the same classrooms, the same faculty meetings, the same committees and the same colleagues every day.

They cannot simply log off.

And that brings this from campus politics into employment law.

Constructive dismissal is one of the most misunderstood concepts in employment law.

An employer does not have to say, “You’re fired.”

The Supreme Court of Canada has recognized that an employer can fundamentally breach the employment relationship without formally terminating the employee. The question is whether the employer’s conduct has fundamentally altered the employment relationship or created circumstances in which the employee could reasonably regard the employment relationship as at an end.

The law does not require the employer to make the termination explicit.

That is the whole point.

To the extent that TMU staff are unionized, constructive dismissal itself may not apply, and they would have to look for any protections under their collective agreements and the human rights code.

The obvious objection to the report may be that TMU did not create every hostile comment, every protest or every ideological disagreement. An employer is not automatically liable because somebody says something offensive.

But that is not the legal test.

The legal question relates to the cumulative impact of the environment which the university has allowed to fester.

What happens when an employee belongs to a protected group, repeatedly reports that the workplace has become hostile, sees the conflict continuing, loses confidence in the institution’s willingness to protect them and ultimately suppresses their own identity to remain at work?

At some point, “this is just a political controversy” is a remarkably inadequate human and legal response.

TMU’s report itself says that the university has not applied its existing policies consistently or decisively. It has not enforced its own policies. It identifies serious problems with the university’s complaint processes. It records a lack of confidence among members of the community that complaints will actually produce meaningful action.

An employer’s obligation is not fulfilled because it has a 40-page harassment policy as well as many others sitting on its website.

Employees do not work inside policies. They work inside the reality those policies create.

And the reality described by TMU’s independent reviewers is deeply troubling.

Jewish employees say they cannot safely identify themselves and are afraid to speak.

And this at a university whose very purpose is supposed to be the fearless exchange of ideas.

There is an almost unbearable irony here.

Universities and certainly this one regularly lecture about the importance of inclusion. They teach courses about discrimination. They conduct research into workplace equity. They issue statements about creating spaces in which marginalized people can bring their whole selves to work.

Then their own independent reviewers hear Jewish employees saying that they cannot safely be openly Jewish.

If that happened at a law firm, a bank or a corporation, the employer would not get away with saying, “Well, there are strong political feelings on both sides.”

Why should a university have such a dramatically lower standard?

Would this university have tolerated this if it had been any other group than Jews?

None of this is an argument that criticism of Israel is antisemitism. Nor is it an argument that pro-Palestinian advocacy should be prohibited.

A university must protect legitimate political expression, including expression that many people find offensive.

But as the report noted: “Freedom of speech is not an unlimited right. It carries corresponding responsibilities toward others in the university community, and conduct that interferes with the ability of others to speak or participate in lawful university activities falls outside its protection.”

The report also concluded that two misconceptions were common in their review: “First, the misconception that protest rights exist without corresponding responsibilities. The frequent narrative is that protestors are sanctioned because they are protesting, not because of their conduct. Nothing could be further from the truth. The protected right is peaceful protest, not violence or the threat of violence, both of which must be met with zero tolerance.

“Second is the misconception that discriminatory, intimidating and harassing words and conduct are protected. The University has both a legal and institutional responsibility to protect students, faculty, and staff from intimidation, discrimination and harassment.”

Protecting political expression does not require protecting discrimination. And by not enforcing its existing policies, that is exactly what TMU appears to have done.

Academic freedom does not mean that Jewish professors are required to tolerate a workplace in which they feel they must hide their identity.

The university’s responsibility is not to decide who is right about Gaza, Israel, Hamas or Palestinian statehood.

Its responsibility is simple.

Make sure the people who work there can work there.

That means a Jewish staff member should be able to say, “I am Jewish,” without wondering what professional and personal consequences will follow.

She should be able to discuss antisemitism without wondering whether doing so will make her a pariah or result in her being assaulted.

He should be able to express a view about Israel without fearing that his colleagues will regard him as politically contaminated.

And Jewish employees should not have to go underground in order to remain employed.

The Benotto report does not declare that TMU has constructively dismissed anyone. That was not its mandate.

But that is precisely why TMU’s lawyers should be reading it very carefully.

The report supplies evidence. Testimony. Institutional admissions.

And it supplies something employers rarely receive before litigation begins: a warning.

A constructive dismissal lawsuit would ultimately require a court to decide whether the circumstances amounted to a fundamental breach of the employment relationship.

There is a profound difference between an employee saying, “I disagree with what is happening here,” and an employee saying, “I can no longer safely identify who I am or be safe in this environment.”

The first is workplace disagreement. The second is a workplace crisis.

Howard Levitt is senior partner of Levitt LLP, leading his teams of labour lawyers in Ontario, Alberta and British Columbia. Howard has appeared in more Supreme Court employment law cases and provincial appeals than any lawyer in Canadian history. A bestselling author, he discusses current workplace issues on the podcast, At Work with Howard Levitt.