[NCUC-DISCUSS] CIS Response to the ICANN Ombudsman's Office

[Norbert Klein]

Thanks, CIS.

Norbert Klein
Cambodia

=

On 04/20/2016 06:25 PM, Sunil Abraham wrote:
> *_CIS Statement on ICANN55 Sexual Harassment : A response to the ICANN
> Ombudsman’s Office  _*
>
>
> On March 30, 2016, the Ombudsman’s Office at ICANN released its final
> report (Report) in the matter of the complaint filed by Ms. Padmini
> Baruah (Complainant). The Complainant had alleged that she had been
> subjected to conduct that amounted to sexual harassment by a member of
> the ICANN community attending ICANN 55.
>
> We would like to state for the record our extreme disappointment with
> the Ombudsman’s Report. The Report bases the inability to carry on any
> further investigation in this regard on the claim that confidentiality
> of proceedings was breached. The breach of confidentiality, if an
> issue, must be treated as a separate matter and nothing prevents the
> Ombudsman from pursuing it independently. However, this does not
> prevent an investigation into the incident of sexual harassment, itself.
>
> Further, we find that the tone of the Report is problematic. It
> completely disregards the Complainant’s detailed account of events,
> and fails to even acknowledge them in the final Report. Further, many
> parts of the statement are completely misleading. For example, in
> describing the event, the Report says that “There was a general
> discussion about food” but as per the accounts of the Complainant as
> well as the witness to the incident, this is completely untrue. The
> Complainant’s account to the Ombudsman does not speak of any
> discussion prior to the incident in question whatsoever and to claim
> otherwise is to dilute the complaint significantly.
>
> There have also been lapses in procedure throughout this process.
> First, during ICANN55, the Complainant was given no interim relief,
> with the alleged perpetrator freely walking around the conference
> venue, and as per the Complainant’s account, at one instance even
> staring at the her. Second, the Ombudsman failed to contact a witness
> who, according to the Complainant, was referred to by her both at the
> meeting and through email after ICANN55. In spite of the witness being
> put in direct correspondence with the Ombudsman on 24th March, 2016,
> as of 5th April, 2016, the witness has still not been contacted or
> asked to provide a statement. This shows an utter lack of seriousness
> in dealing with this issue. Another failing has been that the
> Ombudsman provided no clarity to the Complainant with respect to the
> powers and mandate of his office, leading to a situation of no
> alternative forum and no clear signal. Please find our specific
> objections to the Report:
>
> 1. What constitutes sexual harassment?
>
> In his Report, the Ombudsman states that “the matters alleged cannot
> be considered serious by any standard.” He further goes to say that if
> “in fact the action and statement were made, it may have been a lapse
> of good manners and insensitive to gender.” The Report does not
> clarify if the Office of the Ombudsman has used a standard or a
> definition of what constitutes sexual harassment to arrive at the
> conclusion that the conduct in question was merely “a lapse of good
> manners and insensitive to gender,” nor is there any reasoning for why
> he considers the matters alleged as not “serious by any standard”.
> Without going into questions of fact, we find the levity with which
> the Report deals with the alleged conduct extremely problematic and
> inconsiderate of globally recognised principles on what constitutes
> sexual harassment.
>
> Article 11 of the Convention for the Elimination of All Forms of
> Discrimination against Women (CEDAW) defines sexual harassment as
> including:
>
> /“such unwelcome sexually determined behaviour as physical contact and
> advances, sexually coloured remarks, showing pornography and sexual
> demand, whether by words or actions. Such conduct can be humiliating
> and may constitute a health and safety problem; it is discriminatory
> when the woman has reasonable grounds to believe that her objection
> would disadvantage her in connection with her employment, including
> recruitment or promotion, or when it creates a hostile working
> environment.”/
>
> Further, the Employment Policy of ICANN itself includes within the
> scope of sexual harassment “verbal, physical and visual conduct that
> creates an intimidating, offensive or hostile working environment, or
> interferes with work performance.” The policy goes on to state:
>
> /Harassing conduct can take many forms and includes, but is not
> limited to, the following:
>
> 1. Slurs, jokes, epithets, derogatory comments, statements or gestures;
>
> 2. Assault, impeding or blocking another’s movement or otherwise
> physically interfering with normal work;
>
> 3. Pictures, posters, drawings or cartoons based upon the
> characteristics mentioned in the first paragraph of this policy.
>
> Sexually harassing conduct includes all of the above prohibited
> actions, as well as other unwelcome conduct, such as requests for
> sexual favors, conversation containing sexual comments, and unwelcome
> sexual advances.”/
>
> The alleged conduct involved physical contact with the victim,
> offensive remarks and behaviour that made the victim extremely
> uncomfortable, and falls within the scope of both definitions
> mentioned above. The Ombudsman’s Report states at a later stage that
> “ICANN, for internal staff purposes and for the board has a specific
> zero tolerance policy for sexual harassment.” While we appreciate the
> difficulty of the Ombudsman’s office that the Internal Policy for
> ICANN staff is not applicable in the immediate matter, we are
> extremely puzzled why an unspecified metric for determining sexual
> harassment so divergent from not only globally accepted standards but
> also ICANN’s own internal policy was relied upon.  
>
> 2. Confidentiality
>
> While this entire process has, according to the Ombudsman’s report,
> boiled down to the question of a breach of confidentiality, it remains
> to be shown how a breach in confidentiality nullifies an allegation of
> sexual harassment. It is forseeable that the question of
> confidentiality becomes a separate matter, but to make it the deciding
> factor is a distinct investigation is completely ridiculous. While
> breach of confidentiality may be damaging to the reputation of the
> alleged perpetrator, how does it have an impact on the facts and
> questions that the Ombudsman is seeking to address?
>
> Section 3 of Article V of the Bylaws for ICANN provides that the
> Office of Ombudsman shall comply with ICANN’s confidentiality
> policies. This mandate applies the Ombudsman’s office and not on the
> Complainant. As per the Complainant, she had, at no instance, been
> asked to maintain confidentiality of the event.  
>
> According to the Complainant, the lack of a clear policy and the
> intent of the Ombudsman to close the investigation left her with
> little choice than to go public. The Complainant decided to go public
> in the absence of processes on which she could put faith upon, and in
> the absence of a clear indication of the expected course of action.
>
> The next issue is whether revealing the name of the alleged
> perpetrator compromises the procedural fairness of the investigation,
> and to what extent. In what ways does it compromise the perpetrator’s
> ability to defend himself and the ombudsman’s ability to come to an
> impartial assessment? There are three recognised rules of procedural
> fairness. First, the parties must be provided with a right to fair
> hearing (the Hearing Rule). Second, the decision-maker must be an
> impartial body (the Bias Rule). Finally, the decision must be based on
> logically probative evidence and not on mere speculation or suspicion.
> (the Evidence Rule). The Ombudsman’s Report seems to suggest the
> Hearing Rule has been compromised on account of the Complainant
> revealing the name of the alleged perpetrator in her public statement.
> The Report states that
>
> /“The other party has been publically named without an opportunity to
> make any comment or denial of the incident. It is also part of my role
> as the ombudsman to ensure that standards of procedural fairness are
> met, and the premature publication regrettably does not meet the
> standards of natural justice, because the parties have a right to be
> heard before this occurred.”/
>
> The Hearing Rule requires a decision-maker to inform a person of the
> case against them or their interests and give them an opportunity to
> be heard. Procedural fairness is often said to be breached in cases
> where there is a legitimate expectation that a decision-maker will act
> in a certain ways and does not. Further, the Hearing Rule mandates
> that parties are given reasonable notice, adequate time to prepare for
> a meeting, entitlement to a hearing and an opportunity to respond to
> adverse materials. We understand that revealing the  alleged
> perpetrator’s identity in a public statement can cause damage to his
> reputation, and there may be separate remedies available to him to
> address the same, either within the ICANN framework or outside of it.
> The parties have a right be a fair hearing in front the decision-maker
> (in this case, the Office of the Ombudsman), which should be in no way
> impacted by a public statement. There could be an argument that in
> some cases, a trial by media and overwhelming public opinion can
> compromise juries and the scales of justice. Such a concern, we feel,
> may not be pertinent, in the immediate case, owing to the presence of
> a judicially trained decision-maker and limited press coverage of the
> incident in question. Therefore, we completely fail to understand how
> the public statement compromised the Hearing Rule, so much so that the
> only recourse that the Ombudsman’s office could imagine was to arrive
> at a conclusion of his inability to be an impartial adjudicator and
> refuse to investigate further. It is worth noting that the
> Complainant, a final year law student, has time and again, emphasised
> the importance of procedural fairness in her interactions with the
> Ombudsman’s office and has sought satisfy the Evidence Rule, through
> her testimony and that of a witness, who—it cannot be emphasised
> enough—was never approached by the Ombudsman’s office.
>
> In conclusion, we also want to state that we found the tone of the
> Ombudsman’s Report extremely surprising in that it seemed to place
> much more value in the reputational damage to the alleged perpetrator
> than the need to comprehensively investigate and address the sexual
> harassment complaint of the Complainant. This balance is, in our
> opinion highly skewed, and while we do appreciate the value for
> confidentiality to the accused, we find issue with an adjudication
> process which seems to make this its priority.
>
> 3. Ombudsman’s role, powers and duties
>
> In our opinion, the role played by the Ombudsman’s office in this
> matter leaves a lot to be desired. We state our specific objections
> below:  
>
> a. The question of jurisdiction
>
> It was conveyed to the Complainant as well as clearly stated in the
> Ombudsman’s Report that this was a matter in which he had
> “jurisdiction as any such allegations are a matter of unfairness under
> Bylaw V.” However, a reading of Article V of the ICANN Bylaws reveals
> the following:
>
> “The principal function of the Ombudsman shall be to provide an
> independent internal evaluation of complaints by members of the ICANN
> community who believe that the ICANN staff, Board or an ICANN
> constituent body has treated them unfairly. The Ombudsman shall serve
> as an objective advocate for fairness, and shall seek to evaluate and
> where possible resolve complaints about unfair or inappropriate
> treatment by ICANN staff, the Board, or ICANN constituent bodies,
> clarifying the issues and using conflict resolution tools such as
> negotiation, facilitation, and "shuttle diplomacy" to achieve these
> results.” (emphasis added)
>
> According to the above clause, only complaints against ICANN staff,
> Board and ICANN constituent body fall within the jurisdiction of the
> Ombudsman. If this is the case, then we wonder on what basis did the
> Ombudsman’s office undertake the investigation in this matter, let
> alone, recommending shutting down of the complaint. We also feel that
> it would have been the duty of the Ombudsman’s office to very clearly
> spell out the extent of their authority, and the kind of redressal
> they could offer to the Complainant, at the very outset. If the
> Complainant was made aware of the lack of authority on the Ombudsman’s
> part, she could have immediately explored other avenues to pursue her
> complaint at ICANN 55 rather than relying on a process which had
> ultimately proved fruitless.
>
> b. The manner in which the complaint was dealt with.
>
> We find various issues with the manner in which the complaint was
> dealt with by the Ombudsman’s office. According to the Complainant, on
> March 15th, 2016, she received an email from the Ombudsman stating
> that he was inclined to shut down the case because: a) the alleged
> perpetrator had not conceded or admitted to the incident, and b) he
> had apparently left Marrakech on 10 March, 2016, putting him outside
> the territorial jurisdiction of the conference. We believe that the
> neither of the two factors mentioned should have any bearing on
> whether the Ombudsman chooses to proceed with the investigation. The
> alleged perpetrator had been a part of the ICANN community for many
> years, and his leaving Marrakech did not in any way curtailed the
> Ombudsman’s powers to censure and sanction him. With regard to the
> first matter of the alleged perpetrator denying the incident, we feel
> that there were a number of things that the Ombudsman’s office could
> have by way to trying to reconstruct the events of March 6, 2016, most
> importantly seeking an account from the witness. Another reason for
> shutting down the case provided by the Ombudsman was the delay in
> receiving some details from the Complainant. The Ombudsman’s office
> was aware that the Complainant had been travelling back to India after
> ICANN 5 in the past few days, and the haste in wanting to close the
> investigations is odd, to say the least. This raises questions about
> the seriousness with which the Ombudsman viewed and pursued the matter.
>
> Further, no records were kept of the Complainant’s interview during
> her meeting with the Ombudsman. According to the Complainant’s
> account, she asked for the same and was told the meeting was being
> electronically registered.  According to her, she was told that she
> would be provided a written account of her complaint but this was not
> done for as long as 19 days after the meeting.  On March 25, as per
> the Complainant’s account, she received a response with the screenshot
> about her complaint which contained a single line – “Complaint that
> there is no sexual harassment policy for ICANN meetings” However, this
> did not capture her individual complaint. We believe that by making
> the Complainant repeatedly seek information and failing to properly
> address her concerns, the Ombudsman’s office made the process
> extremely difficult for the Complainant. The Ombudsman's office and
> any authority investigating a sexual harassment complaint is expected
> to be sympathetic to the Complainant and without compromising
> procedural fairness, make the process as painless for them. In this
> respect, the Ombudsman has clearly failed. The lack of record-keeping
> also reflects in the narration of the events in the Ombudsman’s Report
> which is inaccurate according to the accounts of both the victim and
> the witness, as narrated to us.
>
> It is worth noting that it was in light of these factors that the
> Complainant felt compelled to release a public statement on this
> matter on March 19, 2016. Had the Ombudsman’s office acted more
> responsibly and not made her question her faith in the fairness of the
> process, the Complainant may not have felt the need to resort to
> alternate avenues to seek justice.
>
> c. Factual divergence
>
> The Ombudsman’s Report says the the Complainant “provided the name of
> a witness, but this was only given after the substantial publicity and
> after the other party was named.” While this in itself should not have
> prevented the Ombudsman from seeking an account from the witness
> before adjudicating on the matter, we are even more concerned about
> the divergence in facts as presented by the Ombudsman and the
> Complainant. The Complainant in her account is extremely clear about
> having mentioned the existence of a witness and her name to the
> Ombudsman a number of times during her meetings with the Ombudsman at
> Marrakech. As there are no written records of these meetings, we have
> no way to ascertain the veracity of the two accounts, but we find this
> extremely disturbing
>
>
> 4. Clarifications to previous statement
>
> CIS published a Statement on this issue on March 21, 2016. Following
> this, a few complaints and disagreements have been levelled on social
> media and mailing lists. We think it important to clarify some
> important concerns expressed by the ICANN community.
>
> a. In our ask for “Gender sensitization” of the ICANN community, we
> were merely reflecting the requirement under India’s sexual harassment
> law. This was in no way to offend or accuse the community.
>
> b. In discussing the Ombudsman’s office and the lack of diversity, we
> used the term “white male” to demonstrate how the office was simply
> not equipped to deal with such a sensitive matter. This was not to
> demonize a particular demographic, but instead to point out to the
> vast cultural and gender differences on understanding invasion of
> space and discomfort due to sexual harassment. The stark difference in
> approach and seriousness of this issue is evidenced from the course of
> events that have taken place since the 6th of March, where the
> Complainant’s case of sexual harassment has been reduced to a “lapse
> of good manners.”
>
>
>
>
>
>
>
>
>
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