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

[avri doria]

+1

A very well worked out reply.

I must personally add my apology to this thread as one of those who
thought the Ombudsman could help.  While he is formally defined just for
investigating complaints with ICANN Board and Staff, I had seen him act
in situations involving ICANN Participants in the past, in an even
handed way.  I agree with those who think he missed that mark in this case.

avri

On 20-Apr-16 07:50, Norbert Klein wrote:
> 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.”
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> _______________________________________________
>> Ncuc-discuss mailing list
>> Ncuc-discuss at lists.ncuc.org
>> http://lists.ncuc.org/cgi-bin/mailman/listinfo/ncuc-discuss
>
>
>
> _______________________________________________
> Ncuc-discuss mailing list
> Ncuc-discuss at lists.ncuc.org
> http://lists.ncuc.org/cgi-bin/mailman/listinfo/ncuc-discuss



---
This email has been checked for viruses by Avast antivirus software.
https://www.avast.com/antivirus