[NCUC-DISCUSS] Statement from NCUC executive committee

Wed Mar 30 19:56:16 CEST 2016

Dear all,

I welcome the statements made by the Ombudsman on the necessity for opening
a conversation about developing an anti-harassment policy, but am quite
surprised by some of the wording in his blog.

I feel it leaves several questions unanswered, which I am sharing with you
below.

1. Why is the breach of confidentiality presented as a reason to being
unable to further investigate the alleged harassment case? Why does/should
such a breach impede the Ombudsman from further investigating?

2. “The matters alleged cannot be considered serious by any standard. If in
fact the action and statement were made, it may have been a lapse of good
manners and insensitive to gender. Such issues need to be taken in
proportion, and best practice is not to debate this in a public forum where
the issues are not yet clear. I note Ms. Baruah does not agree with my
view.”

Why and how was this assessment of the seriousness of the alleged
harassment made? What standards has the Ombudsman looked at or taken into
consideration when making this judgment?

3. Why is the issue of jurisdiction mentioned in the blog? How is the issue
of jurisdiction addressed in the anti-harassment policy for the board and
the ICANN staff? What would have been the outcome of this case if it had
been weighed according to the internal anti-harassment policy?

4. Does the overall language in this blog strike a fair balance between the
gravity of the alleged harassment case and the breach of confidentiality?

5. How has the Ombudsman weighed these two issues (alleged harassment and
the breach of confidentiality)? And to what extent should they be separated
and addressed individually?

I look forward to hearing your thoughts and comments on this important
matter and I hope that as the NCUC we can be part of the process to develop
the necessary policies and procedures.

Best,

Corinne

On Wed, Mar 30, 2016 at 3:52 PM, Ayden Férdeline <hostime at gmail.com> wrote:

> Hello, all-
>
> Shared without comment: Chris LaHatte, the Ombudsman, has published a post
> on his blog in relation to the alleged incident.
>
> https://omblog.icann.org/index.html?m=201603.html
>
> Kind regards,
>
> Ayden
>
> On Thu, Mar 24, 2016 6:36 AM, Padmini pdmnbaruah at gmail.com wrote:
>
>> Dear Stephanie
>> You are very spot on when you say more work needs to be done. I do
>> believe there is an absolute vacuum on procedures for sexual harassment
>> that are impartial, diverse and reflective of fairness. Therefore, on
>> issues like say privacy, confidentiality, definition alone, there are
>> significant lacunae. That is what I meant.
>>
>> Padmini Baruah
>> V Year, B.A.LL.B. (Hons.)
>> NLSIU, Bangalore
>>
>> On Thu, Mar 24, 2016 at 11:03 AM, Stephanie Perrin <
>> stephanie.perrin at mail.utoronto.ca> wrote:
>>
>> ICANN's expected standards of behaviour are not fulsome, I agree, but
>> they do cover inappropriate conduct.
>> https://www.icann.org/resources/pages/expected-standards-2012-05-15-en
>> In particular, the following (bullet 3) section covers how we treat one
>> another at ICANN (including at meetings):
>>
>> *Treat* all members of the ICANN community *equally,* irrespective of
>> nationality, gender, racial or ethnic origin, religion or beliefs,
>> disability, age, or sexual orientation; members of the ICANN community
>> should treat each other *with civility* both face to face and online.
>> [emphasis added]
>>
>> Not a great deal of detail, but "equally", particularly when accompanied
>> by the following recital, goes a long way to addressing gender bias and
>> inappropriate behaviour, as does the expression "with civility".   The
>> redress mechanism is the Ombudsman.  The 2005 RMAF
>> https://www.icann.org/en/system/files/files/rmaf-08feb05-en.pdf
>> (Results-based Management Accountability Framework) details how the model
>> is expected to work.  You might not think it is adequate, fair enough, but
>> it is not accurate to say there is nothing, in my view. We need more,
>> that's all.
>> I am not criticising here, just trying to provide background documents.
>> As the statement says, more work on policies and procedures needs to be
>> done, and we in NCUC will help with that work.
>>
>> Cheers Stephanie
>>
>> On 2016-03-24 1:05, Padmini wrote:
>>
>> Thank you for this clear statement, and the support for many of the
>> issues I raised.
>> I would just like to put on record that the phrases “*substantive due
>> process*” and “*evidentiary burden being met*” have been echoed by me
>> vocally and repeatedly throughout the entire process, both to the ombudsman
>> and to many of you. I am a student of the law, and have these principles,
>> including natural justice well drilled into my head. If there wasn't a
>> failure of process, and such a short time span to engage with the issue at
>> the site of the cause of action arising itself [given that the conference
>> was in Marrakech for 5 days], I might not have taken these steps that I
>> felt constrained to later.
>> Just pointing out, there is no trial, no court, and my statement is my
>> own, which I can back up with evidence. I do not understand why issues of
>> unfairness of procedure are being raised when there is *no procedure in
>> the first place*.
>> I would really appreciate it, generally, if that were acknowledged.
>>
>> Thanks everyone.
>>
>> Padmini Baruah
>> V Year, B.A.LL.B. (Hons.)
>> NLSIU, Bangalore
>>
>> On Thu, Mar 24, 2016 at 10:26 AM, Stephanie Perrin <
>> <stephanie.perrin at mail.utoronto.ca>stephanie.perrin at mail.utoronto.ca>
>> wrote:
>>
>> Thank you very much for publishing this statement.  I think it is very
>> helpful, and indeed crystallizes some of the issues.
>> Stephanie Perrin
>>
>>
>> On 2016-03-23 22:44, Rafik Dammak wrote:
>>
>> STATEMENT OF THE NONCOMMERCIAL USERS CONSTITUENCY EXECUTIVE COMMITTEE
>> (NCUC-EC) ON SEXUAL HARASSMENT
>>
>> Accusations of sexual harassment at ICANN 55 raise two issues, which must
>> be kept distinct. One is whether this particular incident constituted
>> sexual harassment and if so, what would be an appropriate response. The
>> other is whether ICANN needs to be better prepared to handle situations
>> like this with well-defined policies and procedures. We believe that these
>> two issues are being confused.
>>
>> With regard to the alleged incident, there is very little objective
>> evidence, and the community is grappling with this issue in the absence of
>> a clear, commonly accepted definition of sexual harassment.* We hope that
>> this question is resolved fairly and proportionately through further
>> investigation and verification rather than through allegations in public
>> forums and email lists.
>>
>> With regard to the second issue, we strongly agree that action needs to
>> be taken and look forward to assisting the staff and the board with the
>> development of appropriate policies and procedures. Since NCUC is a
>> rights-focused stakeholder group, the Executive Committee takes a
>> principled stance toward the issue and requests that any sexual harassment
>> policy must:
>>
>>  a) be developed in an atmosphere of impartial, open discussion in which
>> all viewpoints can be heard and respected;
>>  b) be based on clear, unambiguous definitions of sexual harassment that
>> can be readily understood and applied by all ICANN participants;
>>  c) respect the privacy, procedural and substantive rights of both the
>> accuser and the accused
>>
>>
>>
>> * A typical definition of SH from U.S. law is: “Unwelcome sexual
>> advances, requests for sexual favors, and other verbal or physical conduct
>> of a sexual nature constitute sexual harassment when submission to such
>> conduct is made either explicitly or implicitly a term or condition of an
>> individual's employment, submission to or rejection of such conduct by an
>> individual is used as the basis for employment decisions affecting such
>> individuals, or such conduct has the purpose or effect of unreasonably
>> interfering with an individual's work performance or creating an
>> intimidating, hostile, or offensive working environment. (29 C.F.R. §
>> 1604.11 [1980])
>>
>>
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>>
> Ayden Férdeline
> +44.77.8018.7421
>
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