ICANN Ombudsman Blog Creating Dialogue Affirming Fairness

March 30, 2016

Filed under: Uncategorized — Chris LaHatte @ 12:38 am

Office of the Ombudsman

Case 16-00054

In a matter of a Complaint by Padmini Baruah Report dated 30th March 2016

Introduction

This investigation began as an enquiry about sexual harassment policy at ICANN 55 at Marrakesh. The enquirer, Ms Baruah, expressed surprise that there was no specific policy about sexual harassment, nor any points of contact in the event that there was an adverse incident. She indicated that she felt although a few inappropriate remarks were made, that she did not know who to approach. I suggested that she visit the office and discuss these issues. The appointment, after a brief postponement, was on 6th March 2016, when she attended at the office and had a general discussion with me and with Herb Waye about her opinion that there was a need for such a policy. She also made a specific allegation that an incident had taken place. The allegation was that she had a relatively brief discussion with a man, which she found derogatory and which she considered was sexual harassment. The description was that he leaned towards her and took her ICANN identification tag. There was a general discussion about the food, and she said that he made the comment, “you can go make me a cheese sandwich”, I was very recently provided with a fuller explanation of the comments and more of the conversation.

I have omitted his name to respect his confidentiality, and although he has been named by Ms Baruah in her published statements, I will not repeat the breach.

Facts

The essence of the complaint is a suggestion and complaint that the comments made were sexual harassment, in the context of ICANN not having a specific sexual harassment policy for ICANN meetings.

Investigation

To undertake this investigation I have undertaken an inquiry as to the facts of the case. This has been by an interview with Ms Baruah and the other party. Ms Baruah was able to provide the basic details, and I then sought out the other party to tell him about the allegations. I was careful to protect the identity of the parties although the subsequent events have made this futile. I was anxious in the investigation to ensure that each party understood the process and the confidentiality of the complaint, and explained this to each party. I also wanted to make sure each party was fully aware of the details.

In the meantime, Ms Baruah used the public forum at the ICANN meeting to make public statements about the issue and her assertion that the existing standards found at https://meetings.icann.org/sites/default/files/icann-standards_of_behavior-jul14.pdf,

were inadequate. I also became aware that there was a certain amount of speculation and rumour as to the identity of the person, although the other party was not specifically identified in public. One other person with a similar name became concerned to the extent where he visited my office to ask if he was the person named. It was obvious that he was not, and I became concerned about the extent to which confidentiality was being breached. In the meantime I had sought detailed particulars of the incident. Unfortunately Ms Baruah did not respond to my request for those details until well after the ICANN meeting and everyone had returned to their homes. This meant the other party could not specifically address the allegations, which was unfortunate.

This was then overtaken by Ms Baruah then issuing a document more recently and some time after the ICANN 55 meeting, which she called a press statement which actually named the other party. Up to this point she had not addressed the queries I raised about certain matters, but chose to simply publish the details and circulate these widely. Some of those details were matters which I have asked Ms Baruah to provide, to enable me to put these to the other party to obtain his response and comment. But by this stage he had been named, which seriously compromised any impartial investigation.

On discussing this particular issue with him, he was able to provide comments on the latest details, which left me uncertain as to the facts. This added to my concerns following the failure to respond, and the naming.

I take the issue of confidentiality very seriously as this is a central tenet of the practice of an ombudsman. I maintain confidentiality until I have an express waiver from a party. Of course, I cannot control the position where a party chooses to waive confidentiality, but it is disappointing that the other party’s confidentiality has not been respected in this case.

As part of the investigation, I have sent a copy of my draft report to both of the parties in this matter. Ms Baruah eventually responded with a 14 page submission, and has asked that this be included as part of my report. I do not believe this adds to the report which I have prepared but cannot control what she does.

I have attempted to navigate a course of fairness between the parties in this matter to ensure that procedure meant both of them could have an opportunity to be heard. Ms Baruah has chosen to make public much of the material before I could complete any examination of the issues on a factual basis, which she is entitled to do, but regrettably has failed to see that this has caused unfairness to the other party by doing so before he had an opportunity to see the full details of what is alleged.

The 14 page submission contains the full description that I had sought from Ms Baruah from an early stage. She also expresses concern that the file that I kept does not have a full description of her original complaint. The first meeting was primarily about the lack of policy, but it did include a brief

description of the incident. The first issue was to correctly identify the other party, which became increasingly important because a number of other persons were named unfairly and incorrectly. So to investigate fairly I needed to first find out the correct identity of the other party. I then hoped to have a more detailed discussion but of course the other party could not recall the incident. So that I could obtain more identifying details to put to the other party, I sought the details which come in the full description for the first time in the 14 page submission. This was a frustrating because those details could have been provided very much early. She also provided the name of a witness, but this was only given after the substantial publicity and after the other party was named.

Ms Baruah suggests a number of definitions of sexual harassment which she asserts should have been used in my investigation. The point she may have overlooked is that there was no opportunity to test any such definitions, because of the way the investigation was compromised. But she understates the difficulty of defining sexual harassment, because of the jurisdictional issues which apply to behaviour which takes place, not in the United States nor India but in the Kingdom of Morocco. I have not had to consider that aspect of jurisdiction, perhaps fortunately, but in the development of any policy with regard to sexual harassment, there must be clear thinking on definition anchored to an appropriate jurisdiction. The work which Ms Baruah has undertaken to date, I recognise as a starting point, and if the ICANN community determines that such a policy should be developed, then I am confident she will provide some useful input.

Jurisdiction

This is a matter where I have jurisdiction as any such allegations are a matter of unfairness under Bylaw V. This is not accepted although I did not fully understand why, except that my gender was considered inappropriate to receive such complaints.

Reasoning

The situation is that there are two parties each with a different version of events, and with one denying any such incident took place. The role of the ombudsman is not that of imposing discipline on parties for breaches of the ICANN standards of behaviour. My role is to make recommendations based on an investigation of fact with a neutral perspective. I would usually try mediation to resolve issues or shuttle diplomacy. I have made some suggestions along these lines, but the publication and naming of the other party makes such steps impractical.

In this complaint, 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.

However any chance of discussing the comments has been compromised by the decision to identify the other party before my investigation could be completed, and for the parties to have had a full opportunity to consider the alternative versions. 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.

It may be the position that there should be a discussion on policy about harassment, and whether the ICANN standards of behaviour are sufficient. Certainly a reference to treating other members of the community with respect and civility would in the view of some, be sufficient to cover harassment. But if the community wants to adopt a specific policy, then the policy development procedure can be used. I should note for completeness that ICANN, for internal staff purposes and for the board has a specific zero tolerance policy for sexual harassment.

The way this issue has evolved is unfortunate. My view is that there should be, as there is for ICANN for internal staff and board purposes, a zero tolerance policy for sexual harassment. I respect Ms Baruah’ s views and her advocacy on this most important issue. But there may have been a better way to approach this.

Result

I have not been able to make a definite factual finding as a result of my investigation. The details which I had sought at the time to put to the other party have only been fully described in the 14 page submission. The other party simply denies that this incident took place. But because he has been identified and named before I could reach any conclusion, my investigation was compromised. As a result of this investigation, I consider that I cannot investigate further because of the compromises to confidentiality and procedural fairness.

It is unlikely that some form of restorative justice proceeding would assist, although that would be my preference if the facts had been established and not in dispute. I have adopted the Wikipedia definition which says

“Restorative justice is an approach to justice that focuses on the needs of the victims and the offenders, as well as the involved community. This contrasts to more punitive approaches where the main aim is to punish the offender, or satisfy abstract legal principles. Victims take an active role in the process. Meanwhile, offenders are encouraged to take responsibility for their actions, “to repair the harm they’ve done – by apologizing, returning stolen money, or community service”.[In addition, the restorative justice approach aims to help the offender to avoid future offences.”

I record this as my preferred approach. I regret I could not use this.

Chris LaHatte

Ombudsman

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