A “Boys will be Boys” Judgment casts doubts about the UNDT’s interpretation of the United Nations’ zero-tolerance policy on sexual harassment and the cost of perpetuating the Boys’Club culture of impunity.

“Your breasts look like mountains….”

“The water jets in the pool could be pleasurable between a woman’s legs….”

Let me show you a picture you’ll find amusing: a picture of a penis on my phone.

These are a few examples of a male #unitednations staff member’s comments and actions toward his female colleagues during a United Nations retreat. 

If you’re reading this and you’re already shocked, don’t be…yet.

In a UNDT/2022/026 judgment issued in 2022 in the above-mentioned case, the Judge considered that:

“the facts under scrutiny cannot be considered severe, as they were made in jest and without the aim of harming or harassing anyone”

and that such 

“acts are to be evaluated in the factual circumstances, where colleagues were having a rest in a pool during a retreat; it seems they were euphoric jokes and quips, “boutades” by an elated person (like a boy in a school trip) with no intention to harm or harass or humiliate.“

As to the charge of the offending picture, the Judge found

“no evidence of any shocking content of the meme and that the meme undisputedly contained only a sexually explicit (but not pornographic or prurient) picture. Showing it was certainly inappropriate, but it was in a framework of humour amongst colleagues in moments of relaxation in the office, without sexual advances and in no targeted way.”

The Judge further considered that

“some mitigating factors must be taken into account, such as the Applicant’s unblemished work record, his admission to certain allegations, the cooperation from the outset of investigation, his apology to one of the victims.”

Finally, the Judge decided that the sanction of termination for misconduct should be replaced by the disciplinary measure of a written censure and that the offender must be paid two years’ salary as compensation for his unlawful termination!

Well, now, our regulatory framework fails to provide sufficient protection and justice for the victims/survivors of #sexualharassment, and the UN justice system is intent on taking it a step further: encouraging perpetrators to continue their rampant sexual harassment.

What could have caused the UN Judge to make such an assessment and to reach such an erroneous decision?

I argue that the cultural beliefs and values of the Judge in the case mentioned above were crucial factors impacting his final decision.

In a 2007 Duke Law Research Paper, Jennifer Zimbroff considered that 

“studies of sexual harassment perception are not intended to answer whether any specific plaintiff’s circumstances satisfy the legal criteria for sexual harassment. 

Rather, they serve to demonstrate the potential differences with which victims, alleged perpetrators, judges, and juries perceive and consider appropriate handling of unwelcome sexualized approaches. Such studies may demonstrate how the cultural affiliations of different judges and jurors will influence their perceptions of whether sexual harassment occurred and, if so, was responded to appropriately.”

As regards the UNDT judgment, the Administration made the correct and timely decision to appeal to UNAT. 

Bolstered by the UNDT Judge’s decision in his case, the perpetrator responding to the Appeal and defending his actions, argued that there were degrees of severity to sexual harassment misconduct: 

“a passing suggestive glance or remark, for example, is not the same offence as a violent sexual assault or even an inappropriate touch, and neither are the examples of misconduct at issue in the instant matter. Accepting rationally that there exists a gradation in sexual harassment offences, it is appropriate that such graded misconduct be met with a gradation of imposed sanction. The Administration’s reliance on a zero-tolerance policy to circumvent this requirement, and sustain this unjust result, should not be countenanced.”

Don’t despair yet…there is some good news. Thankfully, the Secretariat has a two-tiered system of justice. Earlier this week, the UNAT issued its final judgment No. 2023-UNAT-1311 vacating the UNDT judgment in its entirety and upholding the termination decision.

The UNAT held that 

“all individuals are entitled to be free of this kind of puerile behaviour in the work context. Making unwelcome, suggestive, sexual comments or innuendos to colleagues and showing them photographs of genitalia is unbecoming and disregarding of sensibilities, it violates the obligation of an international civil servant to uphold the highest standard of integrity and naturally would undermine professional confidence. Persons of mature character would know this.”

The UNAT sent an unequivocal  reminder of the UN’s zero-tolerance policy concerning sexual harassment and considered that

“the Organisation is entitled and obliged to pursue a severe approach to sexual harassment. The message needs to be sent out clearly that staff members who sexually harass their colleagues normally should expect to lose their employment. “

More righteous and unbiased Judgments, such as this recent one from UNAT, will contribute to steering the Organization’s moral compass in the right direction.