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

[Robin Gross]

Agreed.  I was also disappointed in his handling of this matter.  
One lesson learned: don’t go to the ICANN ombudsman with any such complaints in the future.

Robin


> On Apr 21, 2016, at 7:46 AM, avri doria <avri at apc.org> wrote:
> 
> +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
>> 
>> 
>> 
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