Being accused of sexual harassment during your employment in an international organization can injure your reputation and harm your career. However, you are presumed innocent and entitled to due process. This article summarizes your rights if you are accused of sexual harassment or harassment during your career in an international organization.
Nothing in this article is legal advice. When in doubt review the relevant rules of your international organization, as rules vary, and seek legal advice.
What is sexual harassment?
Sexual harassment is defined as unwelcome conduct of a sexual nature that is offensive or humiliating, when such conduct interferes with work, is made a condition of employment or creates an offensive work environment. It may occur in the workplace or in connection with work. It can be either a single incident or a series of them, both inside and outside of the workplace. Most organizations state that they consider the perspective of the person who is the target of the conduct when reviewing an allegation.
Sexual harassment, along with harassment, discrimination and abuse of authority, is a form of staff member misconduct. International organizations are generally obliged to investigate allegations and may take disciplinary action against staff members found responsible.
Examples of sexual harassment
International organizations and UN entities define sexual harassment broadly. Examples from policies of international organizations include:
- Attempted or actual sexual assault, including rape;
- Sharing or displaying sexually inappropriate images or videos in any format;
- Sending sexually suggestive communications in any format;
- Sharing sexual or lewd anecdotes or jokes;
- Making inappropriate sexual gestures, such as pelvic thrusts;
- Unwelcome touching, including pinching, patting, rubbing, or purposefully brushing up
- against another person;
- Staring in a sexually suggestive manner;
- Repeatedly asking a person for dates or asking for sex;
- Rating a person’s sexuality;
- Making sexual comments about appearance, clothing, or body parts;
- Name-calling or using slurs with a gender/sexual connotation;
- Making derogatory or demeaning comments about someone's sexual orientation or gender identity.
As mentioned above, international organizations examine sexual harassment allegations from the perspective of the person who was allegedly targeted. This means that even if an accused person did not intend to offend, the organization may nevertheless find the person targeted by the behavior felt embarrassed and the behavior was not appropriate under the international organization’s standards of conduct. If both are well founded, an international organization may find a staff member to have committed misconduct.
Types of evidence used to prove sexual harassment
The following evidence is used to examine allegations of sexual harassment:
- Witnesses: Relevant witnesses have usually observed the conduct in question or have knowledge of it. They may also work closely with the individuals involved and know the work environment.
- Documents and emails: Documents and emails that shed light on the allegations will be sought during the investigation. The investigators may search your work email account and email archives for information about the allegations. Searches may lead to the discovery of problematic emails that are not directly related to the initial investigation.
- Physical Evidence: Investigators may seek physical evidence from the work environment, including computer hard drives, items from work offices or other material.
- Forensic Evidence: Investigators may conduct forensic analysis of office computers or in rare instances seek fingerprints to prove allegations against employees accused of misconduct.
Your rights as a “subject” during a sexual harassment investigation
If you have been accused of wrongdoing resulting in an investigation, investigators normally refer to you as the “subject” of the investigation.
The investigation must be honest, impartial and independent. It must be completed in a confidential manner with careful handling of sensitive and confidential information. You are also entitled to due process and presumed to be innocent.
Right to be informed about the allegations before an interview
You have a right to be informed about the nature of the allegations against you before being interviewed by an investigator. In many international organizations, a staff member is informed that they are the subject of an investigation only a few days (or even less) before being interviewed by investigators. At this time, the investigators should also identify themselves.
Some organizations may inform you of the identity of the complainant before an interview, but many choose not to do so. Others may provide staff members accused of sexual harassment, harassment or other misconduct with an opportunity to review a staff member’s complaint against them and provide comments before an investigation begins. The process is more fair when the identity of a complainant and a copy of the complaint is shared with an accused before they are interviewed. Unfortunately, many international organizations do not follow this approach.
The document notifying you about the investigation may state that you should not speak about it to other people. While you should not take any action that might be perceived to interfere with the investigation or breach its confidentiality, you may seek help and clarification about the process.
It is recommended to confidentially seek assistance from your organization’s staff association or from a lawyer before being interviewed in an investigation. In addition, most international organizations allow subjects of investigations to bring an observer to an interview and some may allow legal counsel to be present.
Investigations must pursue all relevant evidence, especially exculpatory evidence
When staff members are investigated for sexual harassment and other misconduct, the investigation must pursue all relevant evidence. This includes exculpatory evidence, which is evidence favorable to the person accused of misconduct and absolving them of blame. The investigators must also take note of mitigating circumstances, which do not absolve one of fault but reduce the seriousness of the matter.
Staff members accused of misconduct should provide exculpatory evidence and the names of witnesses which support their version of the events, ideally before an investigation is completed.
Obligation to cooperate with an investigation
International organizations generally require their employees to fully cooperate with investigations, including by making themselves available for interview and by fully and honestly answering questions. In addition, many organizations consider non-cooperation with an investigation to be misconduct.
UN agencies, such as the United Nations Secretariat and the International Labour Organization, do not recognize a “right to remain silent” during an interview conducted as part of an investigation. This means that individuals accused of misconduct may be invited to make self-incriminating statements during interviews. Reactions or statements made while under stress can be misinterpreted as self-incriminating statements or as dishonesty. Staff members accused of wrongdoing who choose not to respond to such invitations can be deemed as having “not cooperated” with the investigation.
Staff Lawyer believes the right to remain silent (privilege against self-incrimination) is fundamental to due process. Employees should not be compelled to choose between testifying against themselves during workplace investigations or committing misconduct for not cooperating.
The European Patent Office has recognized a staff member’s privilege against self-incrimination or the incrimination of a spouse and other relatives in workplace investigations. Staff Lawyer recommends staff associations to advocate for this right in their organizations.
Sanctions for committing sexual harassment
If the allegations are proven against you following a disciplinary process, they can result in severe sanctions, up to and including the loss of your job.
25 United Nations entities recently committed to participate in “Clear Check”, a centralized database of information on individuals terminated from employment due to sexual harassment. This means that staff members who are found to have committed sexual harassment also may be de facto black-listed from further employment in these UN entities.
Take the allegations seriously
If you have been accused of sexual harassment or harassment, take the allegations seriously. Document your interactions with those that may be involved and write down everything that you can remember about possible incidents.
Be careful about the tone of communications you may have with others, especially anyone who may be involved in the matter. It is a good idea to hit “save” instead of hitting “send” on emails written under stress because they can be taken out of context.
Ask the organization what process will be followed to determine whether the allegations in fact occurred. This helps you better understand the organization’s procedures and determine if your employer can conduct the investigation fairly. The organization’s process for handling such allegations may also be written in a policy.
Can a lawyer help if you have been accused of sexual harassment?
You may benefit from the advice of an employment lawyer who understands and has dealt with cases in United Nations system entities. A lawyer can assist you to choose the best course of action and protect your rights. During either an investigation or a disciplinary process, a lawyer can help you better understand it and present the best evidence to support your claims or defenses.
If you need assistance, please contact Staff Lawyer.