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Sexual harassment (827,-666)
You searched for:
Keywords: Sexual harassment
Total judgments found: 14
Judgment 4579
135th Session, 2023
Global Fund to Fight AIDS, Tuberculosis and Malaria
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to discharge him.
Judgment keywords
Keywords:
case sent back to organisation; complaint allowed; disciplinary measure; reinstatement; sexual harassment;
Judgment 4207
129th Session, 2020
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the Director General’s decision to endorse the conclusion of the Office of Internal Oversight Services that it was unable to make a conclusive determination on her sexual harassment claim and to reject her related request for damages.
Consideration 9
Extract:
[T]he IAEA takes the position that having regard to the OIOS’s operational independence, as provided in the OIOS Charter, the Director General was constrained by the findings and conclusions of the OIOS Report and by the standard of proof necessary to establish harassment identified by OIOS, namely, beyond a reasonable doubt. It is convenient to address this submission at this point. It is observed that the operational independence of OIOS, as provided for in the OIOS Charter, concerns the independence of its internal operations. It does not in any way constrain or implicate the Director General’s decision-making authority nor does it preclude judicial review of the OIOS’s findings and conclusions underpinning a Director General’s final decision. Accordingly, this submission is unfounded.
Keywords:
final decision; harassment; inquiry; investigation; sexual harassment;
Judgment keywords
Keywords:
complaint allowed; decision quashed; en banc review; plenary judgment; sexual harassment;
Consideration 14
Extract:
A claim of harassment and a report of misconduct based on an allegation of harassment are distinct and separate matters. A claim of harassment is a claim addressed to the organization the resolution of which only involves two parties, the organization and the reporter of the harassment. In contrast, a report of alleged misconduct, based on an allegation of harassment, triggers the Appendix G procedures, a process that is directed at the culpability of the staff member in question and potentially the imposition of a disciplinary measure. In this process, the two parties are the organization and the staff member in question. In this process, the reporter of the misconduct, a potential victim of the harassment, is a witness and not a party in the proceedings.
Keywords:
disciplinary procedure; harassment; misconduct; sexual harassment;
Consideration 15
Extract:
It is observed that there are no specific provisions in the IAEA’s Staff Regulations and Staff Rules that articulate a comprehensive procedure to deal with a claim of harassment of the type first discussed in the preceding consideration. In the absence of a lawful comprehensive procedure within the IAEA’s Staff Regulations and Staff Rules to deal with a claim of harassment, the IAEA had to respond to the complainant’s claim of harassment in accordance with the Tribunal’s relevant case law. It is well settled in the case law that an international organization has a duty to provide a safe and adequate working environment for its staff members (see Judgment 2706, consideration 5, citing Judgment 2524). As well, “given the serious nature of a claim of harassment, an international organization has an obligation to initiate the investigation itself [...]” (see Judgment 3347, consideration 14). Moreover, the investigation must be initiated promptly, conducted thoroughly and the facts must be determined objectively and in their overall context. Upon the conclusion of the investigation, the complainant is entitled to a response from the Administration regarding the claim of harassment. Additionally, as the Tribunal held in Judgment 2706, consideration 5, “an international organisation is liable for all the injuries caused to a staff member by their supervisor acting in the course of his or her duties, when the victim is subjected to treatment that is an affront to his or her personal and professional dignity” (see also Judgments 1609, consideration 16, 1875, consideration 32, and 3170, consideration 33). Thus, an international organization must take proper actions to protect a victim of harassment.
Reference(s)
ILOAT Judgment(s): 1609, 1875, 2524, 2706, 3170, 3347
Keywords:
applicable law; case law; harassment; sexual harassment;
Consideration 18
Extract:
The Tribunal concludes that the IAEA could have and should have given the complainant a decision regarding her complaint of harassment within a reasonable time following the completion of the investigation [...]. Rather than reacting promptly in relation to the complainant’s claim of harassment, the Administration held this claim in abeyance pending the completion of the Appendix G procedure and a determination as to whether misconduct was committed. The fact that the Appendix G procedures were still ongoing did not in any way preclude the IAEA from responding to the complainant’s claim of harassment.
Keywords:
harassment; inquiry; investigation; misconduct; reasonable time; sexual harassment;
Consideration 21
Extract:
Taking into account the OIOS’s conclusion that based on its findings [...] that the complainant’s complaint of sexual harassment was credible and made in good faith; that no finding was made regarding the credibility of Mr A.’s denials; that a decision was made that Mr A. would be warned about his “behaviour”; and notwithstanding the fact that there was no independent witness present during the incidents, which is not uncommon and does not undermine the credibility of the complaint, the Tribunal finds that the complaint of sexual harassment is substantiated.
Keywords:
harassment; sexual harassment;
Consideration 20
Extract:
Having regard to the distinction mentioned in consideration 14 [of the judgment] between a claim of harassment and a report of misconduct based on an allegation of harassment, the DDG-MT’s decision concerning the complainant’s claim of harassment is fundamentally flawed. The DDG-MT proceeded on the assumption that an allegation of harassment by the aggrieved staff member must not only be borne out by specific acts, the burden of proof being on the reporter of the harassment, but must also prove that the alleged perpetrator of the harassment acted with intent. This in turn resulted in the DDG-MT incorrectly applying the “beyond a reasonable doubt” standard of proof in his consideration of the complainant’s claim of harassment. It is noted that the Tribunal has specifically rejected this assumption that intent on the part of the alleged perpetrator is required in order to establish harassment (see, for example, Judgments 2524, consideration 25, 3233, consideration 6, and 3692, consideration 18, and the case law cited therein). The Tribunal’s case law states that the applicable standard of proof for a finding of harassment in a case such as this is not “beyond a reasonable doubt” but a less onerous standard (see Judgment 3725, consideration 14).
Reference(s)
ILOAT Judgment(s): 2524, 3233, 3692, 3725
Keywords:
harassment; intention of parties; sexual harassment; standard of proof;
Judgment 3640
122nd Session, 2016
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the disciplinary measure of his summary dismissal in the wake of a sexual harassment complaint filed against him by one of his colleagues.
Judgment keywords
Keywords:
complaint dismissed; disciplinary measure; en banc review; plenary judgment; sexual harassment; summary dismissal;
Consideration 9
Extract:
As far as the IOS investigation is concerned, the complainant’s main contention is that this service lacks the requisite expertise, because it has little experience in dealing with sexual harassment cases. But the mere fact that the annual number of investigations which IOS has to conduct in this field is indeed very low does not justify such criticism. In this case, [...] the investigation was entrusted to an investigator who was specialised in harassment cases, and there are no grounds for doubting that person’s competence in this field.
Keywords:
inquiry; investigation; sexual harassment;
Consideration 14
Extract:
[T]he complainant submits that the facts considered in these proceedings should have been confined to those directly concerning Ms M. and that it was therefore wrong also to take account of allegations related to his behaviour towards other persons. However, contrary to what the Appeals Board seems to believe, in the context of an inquiry into a sexual harassment complaint, it is by no means abnormal that the investigations conducted with a view to ascertaining the truth of the statements contained in the complaint should be widened to encompass other similar behaviour on the part of the alleged harasser. In fact, that is often the best means of corroborating the allegations of the complainant in an area where [...] it may be impossible to produce material evidence. More generally, it should be recalled that the question of whether or not harassment has occurred must be determined in the light of a careful examination of all the objective circumstances surrounding the events complained of by the alleged victim (see Judgments 2553, under 6, in fine, 3166, under 16, in fine, or 3233, under 6).
Reference(s)
ILOAT Judgment(s): 2553, 3166, 3233
Keywords:
evidence; harassment; inquiry; investigation; sexual harassment;
Consideration 15
Extract:
In addition, although the other acts taken into consideration had not led to the lodging of harassment complaints – in many cases this may be explained by the inherent risks of making an accusation against a supervisor – this did not pose a legal obstacle to their being taken into account. All that mattered here was that these acts had actually occurred, irrespective of the action which might have been taken on them at an earlier stage. The fact that they did not lead to the lodging of a complaint does not make them any less relevant as evidence corroborating the allegations of Ms M. (see, in respect of this latter point, Judgment 2521, under 10, in fine). The reprehensible conduct of an international civil servant may well give rise to a disciplinary measure taken by the employing organisation on its own initiative, regardless of whether one of his or her colleagues files a complaint. Item 11.3 of the Human Resources Manual, on disciplinary procedure, expressly provides for such a step, and in this connection the defendant organisation rightly points out that item 18.2, paragraph 5(d), of the Manual makes the management of UNESCO responsible for “resolving all instances of harassment as soon as it becomes aware of them, even if there are no formal complaints”. Since, in the instant case, acts of harassment concerning persons other than Ms M. had been expressly mentioned in the memorandum of the Director of the Bureau of Human Resources Management of 3 November 2011 notifying the complainant of the charges against him, in this respect the procedure followed bears no criticism.
Reference(s)
ILOAT Judgment(s): 2521
Keywords:
evidence; inquiry; investigation; sexual harassment;
Considerations 17-21
Extract:
[T]he complainant contends with greater cogency that he was never provided with the full content of the witness statements forming the basis of the accusations against him, nor was he informed of the witnesses’ names. It is true that the witness statements were not appended to the report drawn up at the end of the investigation and, as mentioned in a footnote in that document, the identity of the witnesses was deliberately not disclosed. [...]
[T]his strict observance of confidentiality by UNESCO might be seen as departing from the Tribunal’s established case law according to which “a staff member must, as a general rule, have access to all evidence on which the authority bases (or intends to base) its decision against him” and, “under normal circumstances, such evidence cannot be withheld [by this authority] on the grounds of confidentiality” (see Judgment 2229, under 3(b)), to which Judgment 3295, under 13, refers). [...]
[W]here disciplinary proceedings are brought against an official who has been accused of harassment, testimonies and other materials which are deemed to be confidential pursuant to provisions aimed at protecting third parties need not be forwarded to the accused official, but she or he must nevertheless be informed of the content of these documents in order to have all the information which she or he needs to defend herself or himself fully in these proceedings. As the Tribunal has already had occasion to state, in order to respect the rights of defence, it is sufficient for the official to have been informed precisely of the allegations made against her or him and of the content of testimony taken in the course of the investigation, in order that she or he may effectively challenge the probative value thereof (see Judgment 2771, under 18).
In the instant case, the investigation report contained an extremely detailed description of all the instances of unwelcome behaviour by the complainant towards the 21 women identified as victims of his conduct, and their names were given in almost all cases. The complainant was therefore plainly apprised of the content of all the testimony taken during the investigation and of the e-mails which he had not been allowed to see. Furthermore, although, as stated above, the identity of the witnesses was not revealed to him, it is obvious that most of the information recorded in the report could only have come from the 21 persons concerned themselves. The complainant was therefore given a real opportunity to dispute the various items of evidence gathered in the course of proceedings against him. Moreover, it is clear from the above-mentioned comments which he submitted to the Organization on 18 November 2011 to rebut the charges of which he had been notified, that he had in fact been able to prepare them without any particular difficulty. Indeed, he himself described these comments as “clarifications and objections to the accusations of sexual harassment against [him], based on the whole file, and in particular on the IOS investigation report”.
Reference(s)
ILOAT Judgment(s): 2229, 2771, 3295
Keywords:
adversarial proceedings; confidential evidence; disciplinary procedure; due process; evidence; harassment; inquiry; investigation; right to be heard; sexual harassment; witness;
Considerations 29-31
Extract:
The disciplinary authority within an international organisation has a discretion to choose the disciplinary measure imposed on an official for misconduct. However, its decision must always respect the principle of proportionality which applies in this area.
In the present case, the Tribunal considers that the acts of sexual harassment of which the complainant was accused are undeniably serious on account of their nature and their repetition. Moreover, it is clear from the evidence in the file that their gravity is exacerbated by two particular circumstances which must be emphasised here. First, it appears from the investigation report, inter alia, that many of the persons subjected by the complainant to the unwelcome behaviour in question were young women who did not hold a permanent appointment and who were therefore in a precarious situation which made it difficult for them to protest, let alone report it, especially as the complainant often had the power to influence the progress of their career. Secondly, it is plain from the file that, [...] after protests from several of his colleagues, the complainant had received various warnings about the inappropriate nature of his conduct. Thus, even assuming that the complainant had not instinctively realised it, he could not thereafter have been unaware that his behaviour towards the women who had to work alongside him was perceived by them to be improper, offensive and extremely unpleasant. This did not, however, prevent him from repeating his reprehensible conduct on many occasions, since further incidents occurred [...].
Having regard to these various considerations, and even though the complainant’s record of service with the Organization was otherwise excellent, the Tribunal finds that, in this case, the Director-General did not adopt a disproportionate disciplinary measure when she decided on the complainant’s summary dismissal for serious misconduct.
Keywords:
disciplinary measure; proportionality; sexual harassment; summary dismissal;
Judgment 3413
119th Session, 2015
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant successfully impugns the decision to dismiss her appeal against the rejection of her sexual harassment complaint.
Consideration 10
Extract:
Sexual harassment of a staff member in the workplace is a serious violation of her or his rights and is all the more egregious if the harassment is by a senior staff member. An apparently bona fide complaint of sexual harassment has to be investigated promptly and thoroughly. Equally it has to be reinvestigated if circumstances warrant further investigation. In the present case, the IAEA’s failure to reinvestigate involves a serious breach of its duty towards the complainant. Even if the sexual harassment had not occurred, the pursuit of the allegation would doubtless have been traumatic for the complainant. The trauma would have been compounded by the failure to reopen the investigation as she requested. Of course if the sexual harassment had occurred then almost certainly the trauma caused by the failure to reopen the investigation is likely to have been significant. In the Tribunal’s view, the complainant is entitled to moral damages of substance. They are assessed in the sum of 20,000 euros.
Keywords:
moral injury; sexual harassment;
Judgment keywords
Keywords:
case sent back to organisation; complaint allowed; decision quashed; sexual harassment;
Judgment 3400
119th Session, 2015
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant successfully challenges the decision in relation to the FAO's response to her harassment claim and her performance appraisal for 2009.
Consideration 7
Extract:
Whether behaviour is improper or not depends on the content of the behaviour, not intention. At least ordinarily, whether the behaviour is directed at and whether it is offensive to another person does not, again, depend on intention or at least an intention to harass. Also the definition allows for the possibility that the person engaging in the improper behaviour did not know it was offensive but ought reasonably to have known. At least in this latter circumstance, intention would be irrelevant. These comments broadly correspond with the jurisprudence of the Tribunal on the question of mobbing (see, for example, Judgment 2524, consideration 25).
Reference(s)
ILOAT Judgment(s): 2524
Keywords:
harassment; intention of parties; sexual harassment;
Judgment 3142
113th Session, 2012
Energy Charter Conference
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 10
Extract:
As the complainant does not directly challenge the findings of the ad hoc board, it is unnecessary to say more than that, in the absence of findings as to the specific conduct involved, a finding that a supervisor neither “knew [n]or ought to have known” that his conduct was unwelcome, even though that conduct is “assumed” to be improper and was directed to a subordinate who found it unwelcome, raises more questions than it answers. More particularly is that so as the test is not whether a person ought to have known, as stated by the board, but whether he “ought reasonably to have known” – a test that requires an objective evaluation of the conduct involved. However, it must be noted that the board did not find that the complainant made false allegations. Indeed and although it did not find that her claims were true, it did not find that any of them were false. And subject only to the question whether her supervisor knew or ought reasonably to have known that his conduct was unwelcome, his alleged statements as to the complainant’s clothing and appearance were capable of being categorised as sexual harassment.
Keywords:
harassment; sexual harassment;
Consideration 15
Extract:
Quite apart from the wrongful linking of the renewal of the complainant’s contract to the outcome of her complaint of harassment, the report of the ad hoc board did not justify the course taken. There is nothing to suggest that the complainant withdrew any of the specific claims made by her on 25 July 2009 and, as already noted, some of those claims were capable of being categorised as sexual harassment. Moreover, the board did not find that any of the claims were false. Further, although the board stated that it had come to the conclusion in its interview with the complainant that she “was withdrawing her claims of sexual harassment”, its ultimate conclusion was that “she did not pursue” these claims, a course which is entirely explicable in view of the absence of any reference to “sexual harassment” in the Terms of Reference. So far as concerns the claim of harassment generally, the Secretary-General committed an error of law in treating the situation as “serious” on the basis that there had been a finding that harassment had not occurred. It is entirely proper to treat as serious a situation where it is subsequently found that an allegation of harassment has no factual basis. In that situation, there has been a false accusation. In the present case, the ad hoc board found that there was a factual basis to the complainant’s claim, albeit without identifying the precise conduct involved. It found that there had been no harassment solely on the basis that the complainant’s supervisor neither knew nor ought to have known that his conduct – conduct that the Secretary-General said that he deplored – was unwelcome. And it did so simply on the basis that she had not told him so. Where behaviour is such as to satisfy all the elements in the definition of “harassment”, save knowledge on the part of the perpetrator, it is entirely proper for a staff member to make a claim of harassment. And a decision not to renew that staff member’s contract on the ground that a complaint of harassment, although properly made, was not sustained because the perpetrator neither knew nor ought reasonably to have known his conduct was unwelcome gives rise to an inference of retaliation. More particularly is that so where, as here, the contract of the person who engaged in the conduct concerned was renewed quite independently of the outcome of the investigation and the only real criticism that could be made of the person whose contract was not renewed was that she did not make her feelings known and did not make an “earlier attempt to resolve difficulties [...] in a less confrontational manner”.
Keywords:
fixed-term; non-renewal of contract; retaliation; sexual harassment;
Judgment 3085
112th Session, 2012
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Judgment keywords
Keywords:
complaint allowed; decision quashed; fixed-term; non-renewal of contract; performance evaluation; retaliation; sexual harassment;
Considerations 29, 30 and 33
Extract:
As to the complainant’s allegations of sexual harassment, the Panel found that there was insufficient evidence to support a finding of sexual harassment. The Director-General accepted this finding; however, she elaborated further in connection with an incident that occurred at a team meeting to discuss an upcoming training session that would involve a condom demonstration. According to the complainant, when she enquired whether a wooden model would be available for the demonstration, Dr V. replied that she could demonstrate on him. The Director-General noted that the incident occurred in a relaxed friendly atmosphere and that Dr V.’s comment was not directed at the complainant or at anyone else. However, in her view, the comment was in poor taste, showed a lack of good judgement and had no place in a working environment. She added that she would deal with Dr V. in a separate letter to him.
Whether the complainant’s account or Dr V.’s account as to what transpired at the meeting is accepted, the comment by any standard was offensive and goes beyond being simply a matter of poor taste and bad judgement and amounts to sexual harassment for which the complainant is entitled to moral damages. [...]
She is also entitled to moral damages for the affront to her dignity occasioned by AFRO’s conduct during the course of her probation and for the incident of sexual harassment referred to in considerations 29 and 30. For these matters the Tribunal will award a global amount of 20,000 dollars.
Keywords:
moral injury; sexual harassment;
Judgment 2771
106th Session, 2009
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 14
Extract:
"In support of his argument that he was denied due process by the [Investigation] Panel the complainant relies on Judgment 2254 where it was said that, "before deciding a disciplinary sanction, an organisation should inform the person concerned that disciplinary proceedings have been initiated and should allow him ample opportunity to take part in adversarial proceedings, in the course of which he is given the opportunity to express his point of view, put forward evidence and participate in the processing of the evidence submitted in support of the charges against him". That statement relates to the situation where disciplinary proceedings have been initiated. However, and as its name suggests, the function of the Panel was to investigate. Contrary to the arguments of the complainant, the requirement that it "assess the reliability of the source or sources of information and the evidence submitted" does not render it a judicial body. The assessment of the reliability of evidence is a function that is properly described as "judicial" only when reposed in a judicial body."
Reference(s)
ILOAT Judgment(s): 2254
Keywords:
appraisal of evidence; disciplinary procedure; evidence; evidence during investigation; inquiry; investigation; sexual harassment;
Consideration 2
Extract:
The first two charges of harassment upon which the finding of unsatisfactory conduct was based related to events which, according to the subordinate, occurred during a mission which she and the complainant undertook in Latin America in November 2003. The subordinate claimed that, during the mission, the complainant began complimenting her on her clothing and physical appearance, arranged hotel reservations so that they would have rooms on the same floor, suggested on most evenings that she join him in his room for a drink and alluded most mornings to the fact that she had slept alone. She claimed that, on 16 November 2003 in San Salvador, the complainant became agitated when he did not find her in her room, arranged for hotel staff to open her room and shouted at her in the hotel lobby in front of everyone. The second event occurred, according to the subordinate, in Honduras on 18 November 2003 when the complainant embraced and kissed her in the hallway of their hotel. [...]
Keywords:
evidence; sexual harassment;
Judgment keywords
Keywords:
case sent back to organisation; complaint allowed; decision quashed; disciplinary measure; sexual harassment;
Consideration 5
Extract:
Before dealing further with the complainant’s arguments, it is convenient to refer to the content of the Policy. The Policy defines “harassment” as meaning:
“any improper behaviour by an FAO staff member […] that is directed at, and is offensive to, another individual and which that staff member knew or ought reasonably to have known would be unwelcome. It comprises objectionable conduct or comment made on either a one-time or continuous basis that demeans, belittles, or causes personal humiliation or embarrassment to an individual.”
There are then set out examples of harassment, including “degrading public tirades by a supervisor or colleague”. Additionally, the definition sets out what is included in the notion of “sexual harassment”. It is unnecessary to refer to those examples as it is clear that, if the incident in the hallway of the hotel in Honduras occurred, it constitutes sexual harassment. However, the complainant challenges the finding in relation to the incident in San Salvador on the basis that the FAO held a single incident to constitute harassment, whereas the definition refers to “public tirades”. This argument must be rejected. The definition allows that harassment may consist of a single objectionable act that demeans or causes embarrassment. The alleged incidents in the hotel lobby in San Salvador and in the hallway of the hotel in Honduras satisfy that test.
Keywords:
evidence; sexual harassment;
Consideration 23
Extract:
As is usual in relation to events of the kind alleged to have occurred in the hallway of the hotel in Honduras, the only direct evidence was that of the subordinate herself. The charge in relation to this matter depended on her credibility and that of the complainant. To some extent, the subordinate’s credibility was bolstered by evidence that she reported the incident to her husband in a telephone call the next morning. That evidence, albeit that there were no independent witnesses, was sufficient to support the finding of sexual harassment.
Keywords:
evidence; sexual harassment;
Judgment 2706
104th Session, 2008
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Judgment keywords
Keywords:
complaint allowed; decision quashed; sexual harassment;
Considerations 3-7
Extract:
Contrary to the Organization’s assertions, the evidence on file shows that it has been established that the acts of sexual harassment which the complainant denounced while she was working in the Finance Division between September 2001 and March 2003 did in fact take place.
Paragraph 25 of the Appeal Board’s report indicates that the reality of these acts had been corroborated by the testimony of four other persons who were interviewed by the Board, and that it is also clearly borne out by documents placed in the personal files of the complainant and her former supervisor by the Human Resources Management Department. Moreover, in imposing a disciplinary sanction on the complainant’s supervisor on account of these acts of sexual harassment, the Organization necessarily acknowledged that they had occurred. Consequently, it cannot now dispute the merits of the complainant’s accusations in this respect without completely contradicting itself and casting major doubts on whether its own decisions regarding its staff are taken in a responsible manner in such a sensitive area as that of discipline. Given the nature and seriousness of the acts in question, the Organization’s reaction to the complainant after she had denounced this sexual harassment was not at all consonant with the duties of any international organisation towards its staff. Firstly, it must be emphasised that, as the Tribunal held in Judgment 2524, an international organisation has a duty to provide a safe and adequate environment for its staff. In the present case, the complainant was plainly not provided with such an environment during the period in which she was the victim of her supervisor’s advances. In addition, as the Tribunal pointed out in Judgments 1609 and 1875, an international organisation is liable for all the injuries caused to a staff member by their supervisor acting in the course of his or her duties, when the victim is subjected to treatment that is an affront to his or her personal and professional dignity. It must be noted that the complainant in this instance has not received any form of compensation from the Organization for the injuries caused by the acts of sexual harassment in question. Secondly, the Tribunal can only express its astonishment at the administrative action taken by the Organization in response to the denunciation of these acts. The sanction imposed on the supervisor against whom the allegations of harassment were primarily directed – which, as was stated above, was confined to a verbal reprimand and the placing of a note in his file – was clearly not commensurate with the seriousness of his misconduct. What is more, after this sanction the person in question retained his duties with no questions asked. Furthermore, the Organization does not dispute the fact that this supervisor’s performance appraisal covering the period during which he was subjected to disciplinary action was favourable in all respects, including his conduct. The Organization’s behaviour towards this official shows little regard for the duty of care that it owed to the victim of the acts of which he was accused, and the Organization’s argument that it could not have written a less favourable report without punishing the person concerned twice for the same acts bears the mark of bad faith. Lastly, the Tribunal cannot fail to be struck by the contrast between the extreme indulgence thus shown to the
complainant’s former supervisor and the rather harsh attitude adopted at the same time towards the complainant. Not only did she not receive any form of compensation, as was stated above, but after the meeting called by the
Director General on 10 March 2003 it was cavalierly decided to transfer her to another service. It was therefore she who bore the brunt of the adverse practical consequences of the situation created by the case against her supervisor. As the Tribunal stated in Judgment 2067, it is incumbent upon any international organisation to treat staff members with dignity and to avoid causing them unnecessary injury. It is clear from the foregoing that when the complainant denounced the sexual harassment of which she was the victim, WIPO failed in its duty towards a member of its staff.
Keywords:
sexual harassment;
Judgment 2645
103rd Session, 2007
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Judgment keywords
Keywords:
complaint allowed; decision quashed; fixed-term; non-renewal of contract; sexual harassment;
Consideration 9
Extract:
According to the case law, “[a]ny organisation that is serious about deterring sexual harassment and consequential abuse of authority by a superior officer must be seen to take proper action. In particular victims of such behaviour must feel confident that it will take their allegations seriously and not let them be victimised on that account” (see Judgment 1376, under 19).
Reference(s)
ILOAT Judgment(s): 1376
Keywords:
sexual harassment;
Consideration 5
Extract:
[T]he complainant, in her appeal to the Director-General, the rejection of which prompted her to submit the matter to the Appeals Committee, merely requested that the disciplinary measure of suspension be revoked and that she be reinstated in the Organization. In her appeal she asked the Committee to rule that the penalties imposed on her were unlawful. It would therefore appear that during the internal proceedings she filed no specific claim for damages for an injury due to the sexual harassment she claimed to have suffered, although she dwelt at length on her allegations of sexual harassment and attributes the reprisals by her supervisor to her having reported them.
The Tribunal therefore considers that any claim for damages for the injury that the complainant allegedly suffered as a result of sexual harassment constitutes an extension of the scope of the claims filed during the internal appeal proceedings and is therefore irreceivable pursuant to Article VII(1) of the Tribunal’s Statute inasmuch as the complainant has not exhausted the internal means of redress (see, inter alia, Judgement 1380, under 12).
Reference(s)
ILOAT Judgment(s): 1380
Keywords:
moral injury; new plea; sexual harassment;
Judgment 2642
103rd Session, 2007
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 17-20
Extract:
The evidence which the Grievance Panel considered in relation to the question whether there was a pattern of harassing behaviour included the statements of and interviews with Ms X and Ms Y. To a large extent the Panel
accepted their version of events but held that it did not constitute harassment. Ms X, whose consultancy was coming to an end, gave an account to the effect that she had been asked by Mr A. to telephone him at his home on a particular evening when she returned from a mission. When she did so, she was asked to go to his apartment. No other person was present when she arrived. After some time she was asked to sit closer to him and he thereupon held her hand for what she said was a prolonged time. Mr A. admitted that he held her hand but said that he “did not intend anything thereby”. Ms X claimed in her written statement that he also tried to kiss her in an intimate way. In her interview, she said that she felt that he wanted to kiss her in an intimate way but that she tried to make it into a “general kiss”. Mr A. said that he kissed her goodbye “in the customary way”. The Panel accepted that Ms X found the incident discomforting and offensive and was “confronted with a situation that she experienced as vulnerable”. However, the Panel considered that her vulnerability was conditioned by an external factor, namely whether or not she should tell her husband about the incident. According to the Panel, that was not something about which Mr A. could “reasonably be expected to have been aware”. So far as concerns Ms Y, her evidence was that in the period between 1998 and 2000, during which Mr A.
was, for a time, her second-level supervisor, he frequently suggested that they should meet after work or came into her office, closed the door and asked for a kiss. She said in her interview that she managed her interactions with
him by sitting down or physically disengaging if she felt uncomfortable with an embrace. She indicated that she did not object verbally or protest. The Panel noted that she did not claim “that any of these embraces or kisses was
ever lascivious or overtly sexual in nature, but rather that they were ‘ambiguous’”. Mr A. was asked if Ms Y might have “perceived his gestures as other than ‘brotherly’”. He replied that he did not know and said that she had never told him to desist. The Panel accepted that Ms Y “might well have found herself in a position where, despite having been offended or made uneasy […], she did not feel a sufficient sense of security to object openly”.
However, it concluded that Mr A. “did not clearly do wrong to act as he apparently did, and cannot therefore be held responsible for the corresponding vulnerability that Ms [Y] claims to have experienced”. Moreover, it noted that she “could have ended [his] unwelcome behaviour at any time by objecting to or protesting to him about his actions”. The Grievance Panel further noted in relation to both Ms X and Ms Y that their “vulnerability” did not result in the loss of job-related benefits or entitlements or the threat of any such loss. Nor, in its view, did the circumstances constitute “a hostile, intimidating or abusive work environment”. It is notable that this finding is expressed in terms of an “abusive work environment”, rather than an “offensive work environment”, as used in the definition of “harassment”. There can be no doubt that actions of the kind described by Ms X and Ms Y are capable of giving rise to an offensive work environment and that those persons found that they did. Moreover, it is significant that the definitions of “harassment” and “sexual harassment” require only that the conduct in question interfere with work. Further, the Panel had regard to irrelevant considerations, namely whether Ms Y objected to or protested against the conduct which she experienced and whether, in either case, the conduct resulted in the loss of job-related benefits. The findings in relation to Ms X and Ms Y involve errors of law and cannot stand. Because those findings were used by the Grievance Panel to found its conclusion that there was no pattern of harassing behaviour on the part of Mr A., so, too, that conclusion cannot stand. And because that conclusion was critical to its finding that the complainant was not sexually harassed, that finding, which involved a further error insofar as the Panel considered that a warning as to verbal behaviour did not extend to physical conduct, cannot stand. It follows that the Director-General’s decision of 14 February 2006 must be set aside.
Keywords:
sexual harassment;
Consideration 25
Extract:
Because various incidents were, to a large extent, not disputed, the Tribunal is able to substitute its own decision for that of the Director-General. In this regard, it is convenient to note that the Grievance Panel found that Mr A. exhibited “a pattern of behaviour” that, although not properly characterised as “clearly inappropriate or sexually harassing”, could be characterised as “a more than usually personal approach to management and to relationships in the workplace”, and said that it “did appear to some as ambiguous and open to differing interpretations”. Clearly, Mr A. had made remarks to her that could be characterised as “flirtatious”, as could the remark to her secretary, Ms Z. In that context, it was not unreasonable to take Mr A.’s remark that he would be happy to give her a five-year extension after two years “if [they got] on well” as having a sexual sub text. Moreover, it is not disputed that the complainant said something to Mr A. to indicate that she found his remarks offensive. And in this, her actions were entirely reasonable: “flirtatious” remarks made in the workplace by a male supervisor to female staff inevitably diminish their professional standing. Having made clear to Mr A. that she found his remarks offensive, he should reasonably have known that she would also find inappropriate physical contact offensive. The complainant’s claim of inappropriate physical contact, whether it be described as “stroking” or an “up-and down motion” – a distinction which is, at best, elusive – was supported by her near contemporaneous account to the Human Resources Officer who described her as exhibiting a mixture of anger and fear. Given the undisputed accounts by Ms X and Ms Y of the behaviour of Mr A., the overwhelming weight of the evidence requires a finding that the complainant was sexually harassed.
Keywords:
evidence; sexual harassment;
Judgment keywords
Keywords:
complaint allowed; decision quashed; sexual harassment;
Judgment 1619
83rd Session, 1997
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"When a staff member makes charges as serious as sexual harassment an organisation must do its utmost to afford protection. But it must at the same time carry out a full and proper inquiry that respects the rights of the accused. Here the WHO obviously failed to do so. Instead it originally preferred to let the Tribunal rule without adducing evidence that might have proved material. It thereby erred, and the complainant is entitled to redress on that account."
Keywords:
adversarial proceedings; inquiry; investigation; moral injury; organisation's duties; respect for dignity; right to reply; sexual harassment;
Judgment 1609
82nd Session, 1997
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 16
Extract:
An organisation will of course not be liable for private misconduct of an employee that has no link with the
performance of duty. But misconduct in the context of employment is another matter. When someone whom the
organisation has appointed to act as supervisor or director commits an abuse of authority, the subordinate who
suffers injury thereby is entitled to damages. Such is the complainants' case. Without having to go through all the
evidence before it [...] the Tribunal holds that each of the complainants suffered treatment that was an affront to her personal and professional dignity. It was inadmissible for one of its officers, in this case a man, to make a habit of addressing women subordinates in language that was blatantly coarse and lascivious. What is more it offended against [an ILO circular], which seeks to ensure - to use its own words - a safe and healthful working environment free from sexual harassment and intimidation'. The whole drift of the evidence before the tribunal is that someone on whom the ILO had conferred much authority saw rough language and rough behaviour as not incompatible with his exercise of it. They were therefore part and parcel of the performance of his duties, and on that account the Organization is liable.
Keywords:
condition; conduct; injury; liability; misconduct; moral injury; organisation; respect for dignity; sexual harassment; supervisor;
Judgment keywords
Keywords:
complaint allowed; liability; sexual harassment;
Judgment 1376
77th Session, 1994
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 19
Extract:
"Any organisation that is serious about deterring sexual harassment and consequential abuse of authority by a superior officer must be seen to take proper action. In particular victims of such behaviour must feel confident that it will take their allegations seriously and not let them be victimised on that account. In this case the WHO has utterly failed to protect the complainant's rights."
Keywords:
abuse of power; bias; breach; misuse of authority; moral injury; negligence; organisation's duties; right to reply; sexual harassment; staff member's interest; supervisor;
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