[NCUC-DISCUSS] CIS Response to the ICANN Ombudsman's Office
Mueller, Milton L
milton at gatech.edu
Fri Apr 22 00:36:35 CEST 2016
Agree with Stephanie. The CIS statements have not been balanced or convincing. The ombudsman statement also had some problems but I have not heard any convincing arguments against his key point that this was not a highly serious incident. I do believe the ombud erred in not continuing the investigation, but find it understandable in that it is difficult for him to take responsibility for conducting an impartial investigation when the accuser chooses to go to the court of public opinion and publicizes all the email exchanges.
I would encourage everyone involved to take a balanced approach to this issue and not play politics with it. Recognize that these kinds of issues are easily exploited by people (on both sides) to create a polarizing identity politics that draws lines based on generic categories. What matters are the facts and an appropriate response to the facts. We need to respect the individuality of each case and each person and not respond based on symbols and preconceived categories.
Milton L Mueller
Professor, School of Public Policy
Georgia Institute of Technology
> On Apr 21, 2016, at 16:01, Stephanie Perrin <stephanie.perrin at mail.utoronto.ca> wrote:
>
> I think it is unfair to the Ombudsman, and the other party involved, to accept the position of one side. The Ombudsman is unable to discuss details of the case because of confidentiality.
> I recommended that the complainant go to the Ombudsman, and I still regard his office as the first recourse. May I remind you all that he is always at the conferences, are we going to start staffing a separate office/travel for the Harassment Officer? I am assuming that the head of HR does not have a general need to attend ICANN face to face meetings.
>
> Who here has actually dealt with harassment in the workplace, had to discipline people, ever investigated it, etc? Got the training, done sensitivity training etc.? I am just wondering what our experience level is. Just a question. Lot of work coming to get everyone to a common understanding of what kinds of conduct are objectionable under the two policies.
> cheers stephanie perrin
>
>
>> On 16-04-21 2:55 PM, avri doria wrote:
>>
>>> On 21-Apr-16 12:02, Corinne Cath wrote:
>>> But where should we go?
>> in the meantime and since the current episode,
>>
>> I have been told that Diane Schroeder VP of Global HR is one possible
>> contact point.
>> https://www.icann.org/profiles/diane-schroeder
>>
>> don't have her email, but i am sure it is not hard to come up with.
>>
>> avri
>>
>>
>>> As it is inevitable that something like this will happen again
>>> (unfortunately).
>>
>>
>>
>>> On Thu, Apr 21, 2016 at 4:07 PM, Robin Gross <robin at ipjustice.org
>>> <mailto:robin at ipjustice.org>> wrote:
>>>
>>> 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
>>> <mailto: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.”
>>> >>>
>>> >>>
>>> >>>
>>> >>>
>>> >>>
>>> >>>
>>> >>>
>>> >>>
>>> >>>
>>> >>> _______________________________________________
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>>> >>
>>> >>
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