Welcome Harassment?

Why do we need to prove "unwelcomeness" when we report sexual harassment?
Investor Founder Sexual Harassment

When I started AAPC, I knew it would mean hours, days, weeks, and months of anguishing and infuriating research on every single aspect of the law on sexual harassment. I would have to find relevant case-law, relevant academic writings, relevant policies, relevant activist positions, so on and so forth. I would also have to pour over several hundred stories of pain, suffering, trauma, and retaliation. I also expected to read of a few victories, where justice was done and the survivors who stood up and spoke out were validated through a re-traumatising legal process. This I was prepared for.

What I was less prepared for was the level of frustration I would experience with the law itself! Time and again, I found the language of the very definition of 'sexual harassment' grating on my being. Across international organisations, corporations, and indeed even countries, the only standardised part of the definition includes some permutation of the phrase "any conduct or behaviour that is unwelcome...". This subjective standard causes several layers of problems that essentially run afoul of a survivor-centered approach. Firstly, it places on the complainant/ target the burden of demonstrating that the conduct they reported and formed the basis of their complaint was not in fact welcomed by them. Secondly, that they conveyed such unwelcomeness to the perpetrator clearly and unambiguously. Finally, that both these aspects can be proven in a court of law with clear and consistent evidence on a balance of probabilities. Together these form a significant part of the deterrent effect inherent to the legal process.

After suppressing my gut instinct to delve into this peculiar phrasing for months, being a sole founder of a global legal start-up with way too many priorities to begin with, I finally could not move past it. Over the next few months, I started tracking down the origin, import, and continued use of this phrase. I discovered that the genesis of the phraseology was from American jurisprudence (which at the time of its coinage was a revolutionary step towards creating safe workplaces for women). Over several inter-disciplinary scholarly papers, from behavioral psychologists, data analysts, legal practitioners and academics, I became convinced of the need for it to be removed and replaced with some alternative, more appropriate wording. Unfortunately, I have not gotten far enough to actually propose such alternative definitional language for consideration yet.  I hope eventually to critique the validity of its import from American law into international civil service law. More importantly, I intend to put forth arguments on why this dubious standard places an unnecessary and untenable burden on complainants within the legal regime of international organisations. Finally, I hope to analyse the impact of this standard on UN policies and on the judicial assessment of complaints before the UN and ILO administrative tribunals.

Ultimately though, this is where I now stand - once a claim of sexual harassment has been brought, the burden of proving the 'welcomeness' of the conduct should lie with the alleged perpetrator, who should be required to prove that the alleged conduct was a result of their belief that it was welcome, provided the very occurrence of the conduct is not itself in dispute. This would be akin to most sexual consent laws, where increasingly legal standards are shifting towards enthusiastic consent.

Before I get to fully explicating my positions, I decided to share those readings that have most informed my views in advance in order to welcome your perspective on the topic. Have a read:

All of these publications are also, of course, American. While the process of legal updating in US maybe slow in relation, specifically, to gendered laws, these pieces are telling of the growing frustration with the continued use and application of the existing standard in court rooms with predominantly male judges and juries.

Internationally, it would seem that the trend of the law - and hopefully with it the arc of justice - has begun to bend towards discarding the utterly dated and irrelevant 'unwelcome' legal standard. The ILO Violence and Harassment Convention 2019 (No. 190), also called ILO Convention C190, has presciently moved in this direction by using the term "unacceptable" which mandates a more objective inquiry of the conduct than the subjective 'unwelcomeness' standard. In Article 1, the definitions for the purpose of the Convention state:

  • (a) the term “violence and harassment” in the world of work refers to a range of unacceptable behaviours and practices, or threats thereof, whether a single occurrence or repeated, that aim at, result in, or are likely to result in physical, psychological, sexual or economic harm, and includes gender-based violence and harassment;
  • (b) the term “gender-based violence and harassment” means violence and harassment directed at persons because of their sex or gender, or affecting persons of a particular sex or gender disproportionately, and includes sexual harassment

The only domestic harassment law to my knowledge that actually adopts this approach, i.e., requires the accused to prove that their conduct was reasonable, is the recently updated sexual harassment act in Singapore. Have a look at the 'acceptable defence' provisions under Sections 2 through 7 of Protection from Harassment Act 2019. Hopefully, more States will follow suit, prompting employment lawyers to advice employers of all sizes and spread to discard the old subjective test in favour of something more appropriate, maybe along the lines of the ILO Convention C190. The aim as always should be the principle of do-no-harm and to keep the survivor at the center of all policy considerations.

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.