Observations Regarding Sexual Harassment Cases

We describe our observations of the process here in the interests of helping anyone else, whether as an individual or an enterprise, involved in such cases to understand that the pursuit of justice comes at an emotional price. However, if justice is your objective, you have no choice but to hold your course, no matter what kinds of pressure might be brought to bear on you.

Cultural Context

The actions taken by the board to handle this case were driven by our values.

Our values document, written collaboratively by the entire team some years ago, gives practical expression to our culture and the team that lives it:

We are driven by our mission and our metrics.

We build tools that we believe have palpable meaning for our users.

We believe that everyone has the right to their voice, from our users to our staff.

We will give ourselves the autonomy to be radical, but provide the structure and clarity to know what is each of our responsibilities.

We recognise that through communication and documentation we can achieve the trust in our teammates that allows for flexibility in our work styles.

We know that diversity in backgrounds and opinions leads to better products and a better workplace.

We believe that good ideas and great talent can come from anywhere.

We are committed to transparency and openness in the world, starting with ourselves.

We are committed to an excellence that will justify our audacity to challenge the status quo.

We learn from the success or failure of our own work and the work of others. We reflect upon the lessons and evidence that emerge from our work and use them to evolve our future activities

Ushahidi was born out of a project designed to enable marginalised people to raise their voices and for those who serve them to listen and respond better. Inherently, therefore, we also encourage people to raise their voices internally as a way to surface tensions or issues, and applaud those, like the employee who brought the instance of sexual harassment to our attention, who do.

We are a mission-driven company. Everyone works at Ushahidi because of our social purpose and the values we uphold as individuals and as an organisation. We trust one another as a team, because we share the same values about social justice. 

Gender equality has always been critical to us. Ushahidi was founded by two women and two men. For our first eight years, our Executive Directors were women. Of our 28 employees, nearly half (13) are women. Six are in leadership positions. And our board consists of two women and two men. This is not happenstance; it is the outcome of proactive gender-focused decisions.

Based on this culture and our belief systems and operational approach, therefore, Ushahidi is not a company at which one would expect sexual harassment to occur. We didn’t expect it either. Certainly, in our nine years of existence, the HR team or board have never been made aware of any other internal human rights violations. 

Policy context

Even though we did not expect harassment to occur within our own ranks, we had taken steps to deal with it. To fortify our culture, we had put in place internal policies that made it clear that rights violations of any kind would not be tolerated. Sexual harassment is specifically highlighted in several sections of our HR Manual, which all employees receive before signing a contract. In addition, as a recipient of funds from institutional donors such as the US State Department, we have to meet a high bar of governance and policy compliance. To ensure that we have best practice in place, we improve our financial, governance, and compliance policies and procedures via multiple third-party audits every year. As just one example, in 2016-2017 we went through three self-imposed audits.

And yet, this year, we were confronted with a case of sexual harassment. Seemingly, we are the first company in Silicon Savannah in which such a case has been reported. Thanks to the bravery of the employee who reported it, we are the only company in Silicon Savannah, and the most prominent in Kenya, to the best of our knowledge, to have dismissed the accused. The fact that he was a senior executive demonstrates that we acted without fear or favor in pursuit of justice.

The case not only sets an example, but sends a clear message to offenders everywhere that the consequences of crossing an unambiguous line are severe.

Observations

Perpetrators of sexual harassment are not instantly recognisable. They can be people with whom you have worked comfortably for many years.

No matter how strong your policies against sexual harassment are, perpetrators will pursue their own interests regardless. No matter how much you would wish to, you can make no promises about ‘never letting it happen’ or ‘never letting it happen again.’ What you can do is:

Be clear about how you define it as an organisation and what the consequences are of it happening.

Conduct prevention training for your team.

Have processes in place to allow whistleblowing.

Protect your employees once someone is accused by minimizing the accused’s interaction with anyone.

Follow due process in search of justice, and communicate how the process will work and expected timelines both before and during.

And, once guilt is established, act unequivocally and legally to rid the company of the perpetrator.

Best practice in terms of handling sexual harassment cases is readily available; even so, it is still an extremely difficult and challenging process for all those involved because every case is unique. We have a zero tolerance policy that clearly defines sexual harassment; we have a whistleblower procedure that enables an employee to safely raise an issue. We followed best practices when designing our policies and processes. However, best practices are, by nature, guidelines only. They cannot specifically outline every detail of how a case will be handled and how long the process might take, because each case is different in terms of what happened, how it happened, the nature of the evidence, the nature of the complaint (legal or internal), and the nature of the organisation.

While adhering to policies and best practice, every company dealing with a sexual harassment claim will still have to forge its own path in terms of the detail of the way the case is investigated. Whether that’s through a legal process, internal mediation with a legal firm, or through the internal HR department.

As a result, there is no specific timeframe in which a victim can expect resolution. This can be desperately bruising to the victim.

The lack of a specific timeframe can also be traumatic for someone who has been wrongfully accused.

To ensure that justice is served, the company must maintain objectivity and insist on evidence and due process.

Each company must do its best to protect the victim and employees, regardless of whether the allegations against a perpetrator prove to be true or not. In our case, we immediately placed the accused executive on leave and ensured that there was no contact between him and his accuser. He was told not to attend meetings or go to the office. In certain specific circumstances, when he was required to hand over certain tasks for which only he had the necessary authority or relationships, his exposure to other members of staff was strictly curtailed.

Both parties can be unpleasantly surprised at the protracted and complex nature of the legal process. The direct experience of this kind of process is extremely difficult for all involved. Providing upfront as much information as possible about how these kinds of processes unfold may help to some degree to alleviate stresses, set realistic expectations, and help those involved psychologically prepare. All parties can benefit by knowing, that:

The process requires that all communication be conducted through lawyers, and that silence might have emotional effects.

The various sets of lawyers have to agree among themselves about the steps of the investigation. They have to ratify such agreement with their clients. This takes time.

If lawyers or their clients are away, travelling or on leave, the time can be extended further.

If a party chooses to change legal representatives during the preparation for the inquiry that must take place, the time can be extended again.

Once all the parties are in possession of all relevant information, a time-consuming process in itself, they must be afforded the time to prepare for the inquiry.

The provision of evidence to the company and to the accuser is not always immediate.

The evidence itself must be examined and verified by the company and the accuser.

An important reality of justice is that people are innocent until proven guilty. The fundamental rights of the accused to the benefit of the doubt, access to legal counsel, and the opportunity to defend oneself are at odds with the importance of showing compassion to and providing care for the victim. Nonetheless, until the inquiry is held and a verdict rendered, one side must remain a putative victim only and the other a putative perpetrator. Justice can be upheld only by treating both sides equally. To have voir dire, juries and judges cannot be other than unbiased and fair – and we have a right to expect them to be so. That said, it is extremely hard on the victim to be treated with such dispassion or for the perpetrator’s word to be given equal weight to his or her own. Ultimately, however, the objectivity and fairness of the process is what makes the verdict truly believable, valued, and trustworthy and, in the long run, a verdict that will support that victim’s truth for years to come.

The legal processes to be followed in a sexual harassment case are, of necessity, extremely clinical. This is in sharp contrast to the highly emotional nature of the trauma of the event. Also, people who are not directly involved react very emotionally and with legitimate outrage to news of a sexual harassment case being investigated. An emotional response is understandable as history has taught us that cases of sexual harassment are often mishandled, ignored, or suppressed. The public at large doesn’t automatically assume that justice will be served. At the same time, the public is not privy to the formal process that must be followed to indeed ensure that justice is served and the fact that such a process usually imposes silence on the parties.

The privacy of all parties is essential, and in many cases, legally required.

The legal process itself must not be jeopardized, regardless of public pressure. There is no other way to ensure that justice is served and the verdict is indisputable. 

Even if the case is leaked before the process is complete, as a board you cannot influence the outcome by commenting.

The accuser, accused, and the company can all be taken aback by the clinical nature of the inquiry, which is conducted like a courtroom trial.

For the victim, the inquiry is often the most emotionally damaging part of the process.

Having to confront the accused and/or the accused’s legal team can be frightening and intimidating. To obviate as much trauma as possible, we never allowed the accused and accuser to be in the same room together

It can be particularly traumatic for the victim. The two opposing sets of lawyers will, in defence of their own clients, attack the opposing person. The company cannot intervene in this process, which is indeed brutal.

For the company, it is extremely painful to have to maintain its distance and stay silent when colleagues are under such duress.

It is the responsibility of each legal counsel to prepare their clients thoroughly for cross-examination.

The silence imposed on all parties by the legal process is a cause of deep distress for all. The silence is imposed in order to ensure that no party unduly influences another or exposes itself unwittingly to further litigation. Designed to protect the parties, it extends beyond the organisation to funders, partners, and even staff – and can be broken by the organisation only if someone is at palpable risk.

The silence imposed on the board will cause the accused, the accuser, and the staff to feel isolated and alone.

It is also traumatising for employees of the company, who might have friendships with both parties, to be summarily cut off from contact.

Details of the case might be leaked prior to completion, exacerbating the distress for innocent bystanders such as fellow employees. As a company dealing with a case, you will not be able to prevent it from mushrooming to the detriment of everyone. Protecting the privacy, dignity and the rights of the parties is your responsibility, but the means to do so can be taken out of your hands.

If the details are leaked, the court of misinformed public opinion will cause additional emotional trauma for all involved, particularly for bystanders such as other employees, who simply care for their colleagues and the organisation they work for.

The silence required of the organisation will allow the public to speculate freely as to the actual process and to the motives of the various parties.

Uninformed outsiders, perhaps members of the media looking for a sensational headline, maybe someone with an existing issue with the organisation or someone employed there, or maybe a competitor looking to gain advantage, might use the situation to suit their own objectives. This will cause further harm to the victim, staff, and those involved.

Everyone will be severely tested: accuser, accused, other employees, business partners, and those tasked with conducting the investigation and acting on the conclusion reached.

There is no magic wand. There is no way to remove the pain from the situation.

But, if you hold the line on justice, truth can prevail. If fairness is maintained, the very objectivity of the process, uncomfortable as it is, will validate the outcome. Sexual harassment is intolerable. No one deserves to be harassed. The only acceptable response to it is a trusted, fair process focused on serving justice. This validates the victim’s courage and reasserts their rights. It ensures that the perpetrator is removed from the organisation and their potential for further violations is curtailed. It also gives all employees at the organisation and within the wider industry the confidence of knowing that if they find themselves in a similar situation, either as accuser or accused, they will be afforded the same rights to privacy, legal representation, due process, and ultimately, justice.

Next

This has been a traumatic experience for Ushahidi staff. We are taking time to heal and reflect. We are thankful for the kind words, emails, and phone calls of those who care for the people here at Ushahidi. We can’t tell you how much that has meant. Issues such as sexual harassment set off emotional triggers for everyone and so we are focused on talking about these issues as a team and healing through those conversations. 

At Ushahidi, we evolve continuously. It’s part of our DNA and it’s why we are able to innovate to the benefit of the communities our products serve. Evolving is built into the agile processes we use to continuously improve not just what we do but the way we do it. So, we will continue to research and track global developments in the human resources and legal approaches to sexual harassment. Where they can enhance our policies and practices and limit trauma and distress to parties, we will incorporate them. Some initial thoughts from experts we are talking to include regularly hosting training for staff members and documenting in detail the specific legal processes that will be followed if another case were to ever surface.

Our experience of the sexual harassment case has made us even more determined to help marginalised people raise their voice. It has made very clear just how vital platforms like Harassmap.org, Safecity.io, takebackthetech.org, and iamnirbaya.org are as tools for powerful communities of women and other organisations that are focused on social good. We will continue to improve these platforms and create others to deepen the ability of ordinary people to better their lives.

We thank our employee for raising her voice and reminding us of why we work at Ushahidi. We know that her bravery will help us better serve our communities.