[NCUC-DISCUSS] Statement from NCUC executive committee
avri doria
avri at acm.org
Wed Mar 30 23:31:33 CEST 2016
Hi,
good questions. I have some comments inline:
On 30-Mar-16 13:56, Corinne Cath wrote:
>
> 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?
>
>
>
Why is a victim naming her accused a breach of confidentiality. Does
one have to sign a confidentiality document when they enter the
ombudsman office? Does a conversation become sealed on entering the
ombudsman's office? I understand he has a duty to confidentiality. But
others?
> 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?
>
>
>
Given the staff policy, as you mention below, would this be considered
not serious and not subject to zero tolerance (not that I always agree
with notions of zero tolerance - too absolutist for my tastes) according
to staff policy?
> 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?
>
>
>
I should imagine that ICANN would have its rules. Jurisdiction should
only come into if a locale has a higher standard that we do or that they
define something as a crime that we think is ok.
(of course this might mean we should not go to countries with onerous
laws against women or the LGBTQI population)
> 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?
>
>
>
By calling it a breach of confidentiality, he elevates the importance of
protecting the accused over the rights of the victim. I do not think
this was appropriate and that it is unbalanced.
> 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?
>
>
>
Makes sense to address them separately. Especially if they are separate
complaints.
> 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.
>
>
>
Thanks for asking the questions.
avri
> Best,
>
>
>
> Corinne
>
>
>
>
>
>
> On Wed, Mar 30, 2016 at 3:52 PM, Ayden Férdeline <hostime at gmail.com
> <mailto: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
> <mailto: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
> <mailto: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
>> <mailto: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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>>> Ncuc-discuss at lists.ncuc.org
>>> <mailto:Ncuc-discuss at lists.ncuc.org>
>>> http://lists.ncuc.org/cgi-bin/mailman/listinfo/ncuc-discuss
>>
>>
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>
>
>
> Ayden Férdeline
> +44.77.8018.7421 <tel:%2B44.77.8018.7421>
>
>
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