[NCUC-DISCUSS] Statement from NCUC executive committee

Thu Mar 31 05:15:44 CEST 2016

To clarify, there are misrepresentations and inaccuracies in that statement
by the Ombudsman which I pointed out in the 14 page response he mentions. I
asked him to make it public but he thinks it isn't relevant. I await
clarification on confidentiality and publication. But the blog has many
factual errors. Putting that on record
On Mar 31, 2016 03:47, "Remmy Nweke" <remmyn at gmail.com> wrote:

> Dear Corinne
> I must thank you for sounding this off the blog, because I was thinking
> same after going through the Ombudsman piece.
>
> In addition to serving the Ombudsman with the questions you raised for an
> official or formal response, it is important to also add or ask him why he
> choose to retire the case as serious as this with such levity which may not
> have basis in practical terms, especially using the alleged breach of
> procedure to exonerate his office from further action as far as this case
> is concerned.
>
> If my reading of Ms Baruah's submission to the forum is correct, I think
> she was trying to put the records straight from her own perspective,
> therefore naming the alleged suspect, was not and should not be seen as out
> of place. Because for me for instance, if she did not include that in her
> submission to the forum, definitely I should have joined those doubting her
> story in the first instance and now using that as an alibi to hands off the
> case technically does not solve the problem.
>
> One should have expected the Ombudsman to also note from her complaint
> that having undergone an alleged sexual harassment in the hand of a
> suspected male participant, and the ombudsman happens to be yet another
> male too puts her in a tight corner. Literally, there is ego in every human
> being and its like telling an African man to report to an ombudsman (a
> woman) that his wife slapped him. To a lot of African men, it would be a
> kind of double tragedy. Therefore naming her suspect in the case of Ms
> Baruah could be pardonable.
>
> Also, in the part that Ms Baruah did not respond to the ombudsman set of
> inquires until after everyone has gone home, may be straightened in that if
> there was a follow up/ reminder to that effect before the end of Marrakesh
> meeting, including via telephone number if acknowledgement was not received
> within 24 hours as urgent as sexual harassment, considering there could be
> a serial sexual harasser (abuser) around unknown to participants of
> opposite sex.
>
> This may also be a call for the office of ombudsman to be diversified to
> ensure gender balance at all times, which in this case should have availed
> the appointment of similar gender with the complainant to handle such a
> case, given the remark Ms Baruah made on the ombudsman office ab nitio,
> which for me means dissatisfaction from the outcome of the little
> interaction with that office, hence resulting to public forum to purge
> herself of the annoyance.
>
> Frankly, I was disappointed and would like to add that since he the
> ombudsman has ruled out further amelioration, we (NCUC) may also solicit he
> hands-off this case entirely for further investigation to commence and
> ICANN should engage another person preferably a private investigator(s) or
> team of Alternative Dispute Arbitrators to finalise the job to give every
> party a level playing ground, because even the tune of the blog shows the
> office of ombudsman has compromised in this case.
>
> Whichever way we -NCUC- may be looking at this, we ought to join forces
> with Ms Baruah and push for the sexual harassment policy to be enacted in
> ICANN beyond the staff and board with very clear definitions.
>
> For now, the ball is in the court of NCUC and we must not wait for
> physical contact or further abuse before we wake up.
>
> I rest my case for now.
>
> ____
> REMMY NWEKE,  Lead Strategist/Group Executive Editor,
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> On Wed, Mar 30, 2016 at 6:56 PM, Corinne Cath <corinnecath at gmail.com>
> 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?
>>
>>
>>
>> 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])
>>>>
>>>>
>>>> _______________________________________________
>>>> Ncuc-discuss mailing listNcuc-discuss at lists.ncuc.orghttp://lists.ncuc.org/cgi-bin/mailman/listinfo/ncuc-discuss
>>>>
>>>>
>>>>
>>>> _______________________________________________
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>>>>
>>>>
>>>>
>>>>
>>>>
>>> Ayden Férdeline
>>> +44.77.8018.7421
>>>
>>> _______________________________________________
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>>>
>>>
>>
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