UN's New Harassment Policy - You win some, you lose some

A Critical Overview of the 2019 Policy

The United Nations created a new policy on discrimination, harassment, including sexual harassment, and abuse of authority in September 2019 (ST/SGB/2019/8), which replaced a decade old ST/SGB/2008/5. In December 2018, the UN Chief Executives Board (UN CEB) taskforce put out a reasonably robust Model Policy, and the new Policy pretty much follows along those lines. Many international organisations have updated their harassment policies since principles of safeguarding became clearer and more commonly known. Where it has happened, the developments are generally positive. And where it hasn’t, we hope the work in ongoing behind the scenes and eventually all staffers across the UN system will uniformly benefit from improved protections and stronger rights. This review will hopefully bring the UN CEB as well as other UN entities to consider the concerns highlighted here for further improvement towards a more survivor centered approach.

Let's first address a purely technical ambiguity: paragraph 8 states that the Policy came into force with immediate effect and any investigation initiated after 10 September 2019 would be covered by it, and any investigation initiated before this date would fall under ST/SGB/2008/5. Now, where does a complaint made or investigation requested before 10 September, but not initiated until after 10 September fall? One would think under the 2019 Policy, but the lack of clarity on this point has left individual officers to make their own decisions on which policy to apply to such cases.

The new anti-harassment policy is a massive improvement but it is not survivor-centered in parts, leaving scope for much more progress.

WINS

1)      Introduces neutral terminology and recognises range of impact from a single act of misconduct.The Policy uses “targeted individual”, “affected individual”, and “impacted individual” separately. It also explicitly addresses “non- staff personnel”. Effectively it recognizes that the entire team, office, and indeed organisation may suffer as a result of acts of prohibited conduct. Hence, all staff can come forward as complainants. The previous approach burdened the targeted individual with the highly weighted decision of also being a complainant, a burden that can and should be shared by all in a healthy work place. These were gaps that needed fixing.

2)     Big focus on Prevention. Paragraph 3 gets many things right: it recognises a need for internal capacity building for all first responders (para. 3.2); introduces a much broader requirement of “by-stander intervention”; ensures the right messaging is coming from the top (para. 3.3); hints at witness assistance (para. 3.3(i) (iii)); recognises for the first time the very specific harassment that transgender and gender non-conforming individuals face (para. 3.5) e)); and finally requires ALL staff to report prohibited conduct, for which they are to be trained and equipped.

3)     Encourages early intervention. The Policy recognises that a wide range of training will have to be developed and delivered to internalise the purpose and intent of the new Policy to have any real impact in UN workplaces. For supervisors, heads of missions, and indeed, all staff. It encourages screening of new applicants to #stopthemerrygoround that is the usual escape route for known or accused offenders. Even though the Policy still asks affected individuals to directly approach offenders, it accepts that this is only possible in limited circumstances. Impacted persons can seek intervention from their supervisors or the Ombudsperson or staff counselors. However, the language of these provisions (para. 4) only address ‘affected individuals’, while in spirit it addresses all ‘impacted persons’'. This oversight could be a problem in early intervention because we all know managers rarely act beyond what’s strictly mandated of them.

4)      Introduces ClearCheck. It is a system-wide background check for all new applicants on an updated database of current UN employees globally through a piece of software created and managed by INTERPOL. It is also meant to be routinely fed with names of reported harassers from across the UN global community. This is a progress report on its implementation.

5)      Marginally expands rights for complainants. The right to regular progress updates every three months minimum; control over whether an investigation is launched or not; and a commitment that all cases of sexual harassment will be investigated. Access to regular updates is a massive and much needed improvement in a place where routinely complainants are awarded damages by administrative tribunals for inordinate delays.

6)      Greater clarity, accountability, and training for managers. Managers play a very pivotal role in implementing this Policy and it’s a genuine worry that many are not properly equipped – even if they are inclined – to help complainants or to intervene early in a situation or more generally create a supportive, harassment-free work environment. Managers are meant to be trained in effective communication as well to deal with reintegration and work performance issues related to complaints of prohibited conduct. The UN CEB updated its guidance for managers in November 2019, which hopefully is only a good starting point.

7)      Duty of care is a recurring theme. Paragraphs 3, 4.5, and 6 expound on various forms of duty of care owed to a affected person, none of which is made contingent on the facts of the complaint being proven. This starts with providing preliminary but clear guidance on what a formal complaint should contain, extremely helpful in places where information can be centrally controlled by human resource officers.

8)      Centralises data collection and reporting of Sexual Harassment & Abuse (SHA). Paragraph 5.4 requires Office of Internal Oversight Services (OIOS) to be included in all reports, either directly or through the responsible officer, which allows for closer monitoring of SHA prevalence, severity, patterns, repeat perpetrators, action taken, and relief provided. However, OHRM is tasked with compiling data for publishing reports (para. 7), including details on disciplinary measures taken, dissemination of which is crucial for cultural change. Punishments and administrative sanctions send a clear discouraging message. Collecting, then publicizing this information are not only deterrents but also a step towards promoting cultural change.

9)     Addresses false reporting. This old trope of women reporting SHA for glory or money needs to be retired ASAP, and one of the ways to do it is to create a process to track, document, and take actions against credible malicious complaints. The data this generates should also be fully publicized along with other completed cases information. Ultimately, global number show false reporting hovers around 3-5%, so can we please start taking complaints seriously already?

10)  Access to criminal process. The policy for the first time explicitly allows for referral of cases demonstrating criminal conduct to local law enforcement (para. 5.8), clearing previous ambiguity on this topic. It unequivocally states for the first time that the affected person can directly approach criminal authorities at their duty station where the conduct meets local definitions of crime.

 11)  Clarity on interim accommodations. Paragraph 6.8 and 6.10 have great ideas but none of these measures should be instituted by the organisation without the consent of the complainant. It disadvantages the complainant to be moved out or around and seems like a sanction simply for coming forward. Any such move must have full consent of the affected person and/ or complainant before HR actions them.

 12)  Introduces post process review. The Policy (para. 6.12 and 6.13) stipulates the situation is monitored for all parties, particularly to prevent retaliation. Special requirements can include reintegration approaches for any party that has been on leave (admin, annual, unpaid or paid) owing to the process, and not forcing such persons to work in the same office.

LOSSES

1)      Retains the “unwelcome” standard for determining harassment. The corollary of this standard implies that harassment can be welcome, which is obviously a contradiction in terms. Several scholars have commented on the deficiencies of this standard and why it immensely prejudices the complainant. Its origins in American Title VI cases means that it was added as an after-thought to non-discrimination cases where gender had not been originally considered, and hence excluded. The result is an onerous inquiry which places an undue burden on complainants. We already wrote about this issue earlier here.

2)      Removes time limits on investigations. The Policy (para. 5.3) removed (!!) time limits on investigations for formal complaints, which previously were required to be completed in 60 days. Instead you get the right to regular investigative updates every three months minimum (para. 5.5 (g)) and regular status updates through the Conduct & Discipline (C&D) focal points every two months (para. 5.5 (h)). This is truly disastrous and a regressive change. Firstly, if there are no time-limits, experience shows such investigations can drag on, some purposefully, some simply due to staffing shortages. Delaying investigations is a very easy way to protect persons who can secure such intervention. Secondly, delays are a huge part of the anxiety that plagues complainants because delays exacerbate the trauma of narrating and reliving the incidents far further along a path to recovery. Thirdly, a drawn out investigation may also effect the quality of evidence obtained over a longer stretch of time.

3)      Fails to recognize the right of complainants to crucial reports. Paragraph 5.5 (e) only requires that the OIOS inform the complainant and affected individual of the report it submits to the responsible officer, but it does not require the provision of a copy of the report to the complainant. This continues to be something complainants will have to litigate for. Each time they have to prove their need for a full record of the investigation to exercise their right to appeal or to even fully understand and accept the organisation's findings.

4)      Still excludes lawyers! Every survivor has universally conveyed that after mental health care, they wanted legal help. But alas, the Policy overlooks this simple ask. If the UN wants survivors to not have lawyers, it also should not be allowed to use them during the process (para. 6.5). “Equality of arms” necessitate that when legal minds assist and interpret the provisions for one party, the same expertise should be available to the others. Most international organisations have a provision which addresses access to legal representation and states explicitly that the cost of this service shall not be covered by the organisation. But the UN still refuses to play fair?

5)      Ignores staff unions and representatives. Paragraph 3.2 (d) mentions them as persons who should be trained, but they are ignored in the crucial sphere of early intervention, as persons who could guide personnel to their options and rights under this and other policies. Staff representatives have been and remain a huge support system within the big blue machine and one of the few resources that staff have been able to trust. To ignore them seems petty frankly, but also it appears that the UN seeks to keep full control of information flow.

6)      Continues to use online modules as the primary prevention training. There is absolutely no data that these online training modules have worked. Ever or anywhere. In fact research shows that real-life examples of inappropriate conduct through video recreations followed by a discussion on the reactions to the scenes work best in changing attitudes and behaviour. On the upside though, the new policy does tie non-completion of the mandatory online modules to performance appraisal, but this will really be up to HR officers to monitor and enforce.

7)      Oversells the Speak Up helpline. The helpline is described as a place to obtain “confidential advice about possible sexual harassment”. It is of course most helpful to have a one-stop-shop for information and ports of call, which is what in reality the helpline does. Staffed with volunteers, not very well trained, who are tasked simply to give contact details of the persons or offices based on your location, position, and nature of complaint. They are not equipped to provide any advice about sexual harassment nor deal with the potential vulnerabilities of callers, and therein lies the oversell. The UN ought to be open about the helpline’s capacity in this regard, so as to not mislead its employees into narrating their painful stories to yet another person who cannot actually help.

8)      Investigation not always guaranteed. All prohibited conduct but sexual harassment can be investigated by rostered staff trained to investigate, instead of professional investigators. In this respect, it is very disappointing to note that the Secretary General's promise to treat all complaints of sexual harassment and abuse as Category I complaints that are investigated without exception directly by the OIOS does not find a place in the Policy.

9)      Immunity not waived. The SG had made a promise et large that in cases of sexual harassment and abuse, the UN would not invoke immunity to protect the accused from local legal actions. This assurance has also not found a place in the updated policy and effectively turns the access to criminal process a sign board to a dead-end.

 If you found other areas which need improvement, or have thoughts on our review, do drop us a line with your comments. We may add your perspective here, with due credit of course.

FAO – Food and Agriculture organization

IAEA - International Atomic Energy Agency

ICC - International Criminal Court

ILO - International Labour Organization

IMO - International Maritime Organization

INTERPOL

IOM - International Organization for Migration

OECD - Organization for Economic Cooperation and Development

NATO - North Atlantic Treaty Organization

OPCW - Organization for the Prohibition of Chemical Weapons

OSCE - Organization for security and cooperation in Europe

UNO - United Nations Organization Secretariat

UNAIDS - Joint Unirted Nations Programs on HIV/AIDS

UNDP - United Nations Development Programme

UNESCO - United Nations Educational, Scientific and Cultural Organization

UNF - United Nations Population Fund

UNHCR - United Nations High Commissioner for Refugees

UNICEF - United Nations Children's Fund

UNOPS - United Nations Office of Project Services

World Bank

WFP - World Food Programme

WHO - World Health Organization

WIPO - World Intellectual Property Organization

European Bank for Reconstruction and Development

EIB - European Investment Bank

European Parliament

ESO - European Southern Observatory

European Union of Intellectual Property

CDSP Missions and Operations

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Zero Tolerance Must Translate to Zero Tolerance in Action

Limited to no progress towards this promise and no indication that it will be achieved in a reasonable timeframe.

This promise has not been achieved, and although progress is underway, much more work needs to be done. There may also be problems with the actions taken so far that undermine the usefulness of action towards this promise.

This promise has been achieved, or strong positive progress has been made, even if some work needs to be done.

The UN Secretary General, Antonio Guteress, made a slew of promises and assurances on combating sexual harassment and abuse (SHA) in the UN. Guteress accepted that the UN had failed to gain the trust of its staff to come forward against misconduct because it had failed to stand by previous complainants. Over a period of 24 months since late 2016, he called on staff to Speak Up against harassment when they see it and to support staff who report it, while himself committing to stronger policies on reporting, retaliation and investigation, as well as a rapid response system.

When one condenses all the Secretary General’s “Zero Tolerance Must Translate to Zero Tolerance in Action” speeches from late 2016 to early 2019, they can be distilled into 10 key commitments. Since accountability is essential in targeting and addressing prohibited conduct, we tracked how the UN was performing on these promises. The following assessments are based purely on our analysis of the limited information on progress available through public domain material.

This assessment focusses on new commitments, made in the wake of the #MeToo campaign and does not cover policy changes prior (e.g. revising the whistleblower policy and the gender parity policy).

Hire SHA specialised investigators OIOS and train all existing investigators in SHA related skills

Six SHA specialised investigators were appointed globally and report to the OIOS representative in New York. It is UNKNOWN whether all existing investigators were trained on SHA related skills.

This promise seeks to improve internal resourcing to investigate and respond to complaints. Therefore, it is concerning that the Office of Staff Legal Assistance (OSLA) has been ignored. Without legal support, neither the complainant nor the accused can navigate the complex internal justice mechanism. Sadly, complainants are frequently advised that they will not require legal support during the internal investigations. The OIOS has seen over 200% increase in SHA complaints since 2016-17 while OSLA continues to work with 12 lawyers for the UN Secretariat global workforce. A holistic assessment of overall staffing needs would be a useful step for achieving the intent of this promise.

All SHA complaints will be treated as 'category A' complaints and investigated directly by the OIOS

Despite being applied for all new cases, the 2019 anti-harassment policy of UN does not make it part of the promised responses. Also, older cases continue to languish without the 'upgrade'.

The process of reporting and investigating SHA to be streamlined, with 3 months deadline and a victim-centric approach

The 2019 anti-harassment policy has done the exact opposite of this promise by completely removing any time line from the investigation and resolution process. Effectively, the SG has backtracked on this commitment.

Launch a 24 hours helpline

The SpeakUp helpline in New York HQ and can be reached at: +1 917-367-8910.

UN duty stations in Addis Abba, Bangkok, Beirut, Geneva, New York, Nairobi, Santiago, and Vienna can use extension: 78910. Peacekeeping or political mission personnel must dial an addition prefix: 1212-78910.

That said, these numbers are difficult to recall or use, especially for staff not in the United States; the helpline is staffed by volunteers, rather than a trained dedicated team; and volunteers are not equipped for tele-counselling but rather provide directory services for the most appropriate port of help for the caller.

Conduct a system-wide staff survey on sexual harassment

The Safe Spaces Survey was conducted by Deloitte and published in mid-January 2019.

The survey found 1 in 3 women in the UN face sexual harassment, rising to 1 in 2 for interns, consultants and temp staff (i.e. those on precarious, insecure contracts with greater dependency on supervisors for their UN careers). However, no actions have been identified to respond to this finding, particularly considering the escalating use of short-term and insecure employment arrangements partly as a cost-cutting measure.

Revise internal training modules on SHA, retaliation, ethics, etc.

The mandatory training on the SGB on harassment, sexual harassment, discrimination, and abuse of authority has been revised. UNKNOWN whether other training have been updated too.

To improve the impact of preventive measures such training, expert behavioural change trainers need to be involved in the design and delivery of any new training.

Harmonise internal rules, policies, and procedures to address SHA as well as to take similar measures

All efforts and discussion for harmonisation of the anti-harassment policy has met with such great resistance that we don't expect this to ever pass! Even the very basic - a common definition of sexual harassment - cannot be agreed by UN bodies, who believe they are all different & unique and need a fit-for-purpose policy.

Create UN system-wide HR screening database of 'confirmed' perpetrators

Clearcheck is available to all UN bodies internally, and maybe opened up to the development/ humanitarian sector at large if proven useful.

However, it continues to face a lot of resistance and concerns on privacy and data storage grounds. As per the progress report, the database is in use but not widely yet. Time will tell whether it is faithfully updated or referenced.

Rebuild trust in the organisation

Through the IASC Champion on SEA and SH, there are efforts for leadership commitment to rebuild trust by bringing to light cases themselves rather than covering up; worrying less about reputation by focusing on follow up and self-reporting; making disclosure obligations for applicants to prevent rehiring of offenders and waiving immunity. OCHA created a fund of $1 million to support and speed up investigations on SEA and SH. However, noting the grave reputational damage from SEA, it is expected that the primary focus of a "joint" mandate on SEA and SHA will remain on beneficiaries rather than what the UN views as “blue-on-blue” transgressions.

Unequivocal commitment to not invoke immunity for those accused of SHA & develop a code of conduct for delegates to the UN

UNKNOWN when and how immunity will be waived, but it certainly has not happened yet!

In existing and ongoing cases, where the Secretary General had invoked immunity, he continues to stress it to protect the officials accused to shield them from local and/or other legal proceedings.

There is no update on code of conduct for delegates visiting the UN and the latest Handbook does not even mention the anti-harassment policy.