Anniversaries offer opportunities for reflection. In 2021, the Asian Development Bank Administrative Tribunal (ADBAT) and the Administrative Tribunal of the Inter-American Development Bank Group (IDBAT) celebrated decennial anniversaries (the IDBAT was established in 1981 and the ADBAT in 1991). The two tribunals invite comparison, since they are of similar age: they are creations of a regional development bank that adopted statutes governing them, and have adopted their own rules and a code of ethics and conduct. They offer international civil servants (and some others) an avenue for the final and binding resolution of employment-related disputes; otherwise, the organizations’ immunities from national jurisdiction would leave these individuals without access to justice. Both tribunals have in recent years improved the information available on the dispute resolution process.Footnote 1 The authoritative source, of course, remains the decisions rendered by the ADBAT and the IDBAT. On occasion, the tribunals have referred to each other's decisions.Footnote 2
At first glance, the two tribunals also appear to have issued a comparable number of decisions (by 31 December 2021, 125 for the ADBAT and 112 cases for the IDBAT). A closer look at the data for the IDBAT, however, shows that 24 of its cases involved withdrawals and/or recorded settlements (obviously without details published).Footnote 3 In contrast to the ADBAT, which has held an oral hearing on only a few occasions, the IDBAT has done so in 96 per cent of the cases, mostly for oral argument, but sometimes for hearing witnesses.Footnote 4
Both courts have been called upon to address claims of discrimination on various grounds. This article, while noting differences in relation to access to the tribunal and the rules on remedies, finds that the two tribunals have faced similar challenges in handling discrimination cases. It suggests a way in which such cases might be addressed more easily in future.
I. A General Principle
Each of the development banks under consideration here have adopted internal policies aimed at promoting equality of opportunity, adapted as needed over time. The law of the international civil service, also referred to as international administrative law, has long held that equality of treatment or non-discriminationFootnote 5 is a general principle of a fundamental nature.Footnote 6 A rule that “employment decisions based on invidious discrimination, either toward the individual or the class to which he or she belongs, are unlawful and will be overturned” constitutes a “substantive rule” developed by international administrative tribunals.Footnote 7 Moreover, “the principle of non-discrimination is a source of law hierarchically higher than the [internal] norm [of an organization]”.Footnote 8 Thus international administrative tribunals have “the authority to strike down and fashion appropriate remedies for any such [discriminatory] conduct”.Footnote 9 Conceptual growth in the analysis of discrimination claims has occurred at both international and national levels over the past several decades.Footnote 10 Furthermore, international human rights instruments – while not directly binding on the organization – may be cited in support of a decision on discrimination issues,Footnote 11 and some commentators have urged greater reliance on such sources.Footnote 12 These observations set a backdrop for a look at the approaches taken to such claims by the ADBAT and the IDBAT.
II. Basic Features of the Adbat and the Idbat
A. Access to the tribunals
Before examining the jurisprudence of the ADBAT and IDBAT on discrimination, one needs to review a few basic features of these tribunals. Under its statute, the ADBAT may hear and pass judgment upon any application by which an individual staff member of the bank, who holds or has held a regular or fixed-term appointment of two years or more, and who alleges non-observance of the contract of employment or terms of appointment.Footnote 13 The statute of the IDBAT also extends to such persons, while containing a more encompassing, but somewhat circular, definition of an “employee”. This term is defined as “any current or former person appointed by the Bank or Corporation in accordance with its employment practices to render services as an employee, and who receives regular remuneration from [it] (including consultants)”.Footnote 14 With this explicit inclusion of consultants, the IDBAT is thus open to a wider range of complainants without a threshold of a minimum duration of contract. The jurisdiction of the two tribunals extends to pensioners of the respective institution.
Both tribunals have adopted and revised their own rules of procedure.Footnote 15 Under the statute and rules of each, an applicant must exhaust avenues for internal review of administrative decisions (these differ somewhat for the ADB and the IDB). Time limits, both for the internal review and for lodging an application with the respective tribunal, also need to be observed. The IDBAT allows 120 days from exhaustion of all remedies available to the bank, while an application to the ADBAT must be filed within 90 days thereof.Footnote 16 Normal bars to the tribunal's jurisdiction, such as a failure to exhaust internal remedies or to respect time limits, will apply in cases of alleged discrimination, as in any other.Footnote 17 Neither the ADBAT nor the IDBAT accept class actions, but both have examined collective claims submitted by a group of individual applicants and may decide to join their claims.
B. Subject Matter Jurisdiction, Sources of Law, and Scope of Review
Under Articles II and VI of the IDBAT Statute, the tribunal is empowered to decide on alleged non-observance of the contract of employment and the terms and conditions of employment, including the agreement that establishes the bank or the corporation, and the rules and regulations and personnel and administrative policies in force at the pertinent time. Similar wording appears in Article II(1) of the ADBAT Statute. Both tribunals have, in addition, referred to general principles such as that of equality, as well as to decisions of international administrative tribunals dealing with comparable situations. The ADBAT, in its inaugural judgment, Lindsey v. Asian Development Bank, laid down the “principal rules of law within the framework of which the facts must be considered” in any case before it.Footnote 18
The law of the international civil service applies stricter scrutiny to administrative actions involving what are found to be “fundamental and essential” conditions of employment (also referred to as “acquired rights”) than it does for what are seen as discretionary decisions of management (such as contract renewals, performance reviews, and promotions). In the ADBAT, the latter are still subject to review, but only in circumstances where the challenged management decision is arbitrary, discriminatory, improperly motivated, adopted without due process, or involves an abuse of power or discretion.Footnote 19 The IDBAT has taken a similar approach:Footnote 20
The work of the Tribunal … can by no means take the place of management in its decisions[;] it is our function to review whether the administrative actions match [their] normative parameters and, therefore, to guarantee the rights and interests of the staff measured against irregular decisions vitiated by illegality.
The phrase “arbitrary, discriminatory or improperly motivated” is often repeated in applications lodged with the ADBAT. But pleadings do not necessarily reflect the distinct elements in this phrase. International administrative tribunals often rely considerably on fact-finding done at “the steps below”,Footnote 21 although they also engage in examination of additional documents and, particularly in the case of the IDBAT, witness testimony. Either way, disclosure of information for comparative purposes has particular importance in the context of discrimination claims, as explored below.
C. Possible Remedies
When the ADBAT or the IDBAT finds an application or complaint to be well founded, the respective statute provides for relief to be granted to the individual. The remedies specified in both tribunals’ statutes entail rescission of the contested administrative decision or specific performance of the obligation invoked, as well as possible compensation; that is, whether to “make whole” or, as an alternative under specific circumstances,Footnote 22 award costs. Both the ADBAT and the IDBAT statutes empower them to award “costs”, including an amount for attorney's fees.Footnote 23
The two statutes diverge somewhat as to possible compensation. In the ADBAT Statute, the level of compensation may not exceed the equivalent of the applicant's prior three years basic salary, but “in exceptional circumstances, when it considers it justified”, the tribunal may order the payment of higher compensation, giving a statement of the reasons.Footnote 24 In 2013, following the Review of the Ethics, Conduct and Grievance Systems of the Inter-American Development Bank, which was conducted two years earlier, the IDBAT statute was amended, to include regard to possible compensation.Footnote 25 Under Article IX of this statute, in addition to making a provision to “make whole” remedies, the IDBAT may award additional compensation not exceeding:Footnote 26
the higher of either one year of the Applicant's annual salary or one year of the median salary of the Bank or the Corporation, as applicable. However, in the case of Tribunal findings involving discrimination based on race, gender, sexual orientation, national origin, ethnicity or other protected status, or retaliation against a whistleblower, monetary compensation may be the higher of either twice the Applicant's annual salary or twice the median annual salary of the Bank or Corporation, as applicable.
The possible reference to the median salary enables the IDBAT to raise the possible compensation payable to a lower-paid employee, or to lower it in the case of a higher-paid one. In addition, where the IDBAT:Footnote 27
determines that discrimination based on race, gender, sexual orientation, national origin, ethnicity or another protected status, or retaliation against a whistleblower, was a contributing factor in the Tribunal's decision, it shall refer the matter to the Ethics Officer for action in accordance with the policies governing that Institution, including policies regarding conflicts of interest and recusal.
Up until now, no reported decision of the IDBAT has referred to this provision and is, so far, unique among international administrative tribunals.
III. Adbat and Idbat Discrimination Cases
A. Discrimination Claims: An Overview
Against this background, we can look at the relevant judgments of the ADBAT and the IDBAT on discrimination issues. The most numerous have challenged differential treatment that involved remuneration (related to policies on reimbursement of national tax or access to certain benefits) or other treatment alleged to be arbitrary when compared to that given to (arguably) similarly situated persons. Another category of claims has involved allegations of sex/gender discrimination, which is also a protected status or ground. While sexual harassment has come to be seen in international law as a manifestation of gender-based discrimination,Footnote 28 harassment claims made to international administrative tribunals need not be framed in terms of discrimination, and are thus not incorporated here.Footnote 29
So far, neither tribunal has issued a judgment based on a finding of discrimination on other grounds by which staff would be protected against discrimination, such as race or religion.Footnote 30 However, in Peroustianis v. IDB,Footnote 31 the IDBAT commented that although bias or prejudice had not been alleged, there had been hints that:Footnote 32
because of his cultural background and personality, [the complainant] did not fit very well in to the Bank with its predominantly [L]atin environment. In this regard, the Tribunal has carefully considered whether this contention could be taken to amount to an allegation that Complainant had become the victim of discriminatory practices on account of his ethnicity.
It found this not to be case. In the ADBAT, the tribunal upheld the bank's application of a phased-in reduction of the retirement age from 65 to 60. Neither the majority nor the dissenting opinion mentioned possible age discrimination, and the applicant had not raised the issue.Footnote 33
In some cases, applicants have alleged discrimination based on other grounds, but then failed to pursue their claims by not supplying evidence. This is illustrated by Severino v. IDB,Footnote 34 in which the IDBAT nonetheless ruled in favour of the applicant on her principal claim of abuse of authority. In Jacques Cook et al. v. IDB,Footnote 35 the IDBAT referred to “inequities suggested but not concretely argued”. In Yamagishi, the ADBAT concluded that the applicant had failed to prove that the underlying incidents had actually taken place, or that they resulted in a decision that was based on “discriminatory or other illegitimate criteria”.Footnote 36
B. Remuneration- and Benefits-related Claims
The principle of equal remuneration for work of equal valueFootnote 37 has featured importantly in several cases brought to the ADBAT and the IDBAT. The outcomes have been mixed.
1. Claims Involving the Issue of National Income Tax
In earlier cases, the ADBAT faced the issue of levels of staff compensation before and after the calculation of national income tax that was owed by staff of certain nationalities, but not by others. Only the highlights of this complicated matter, which involve four successive cases, can be set out here. The first two cases were Mesch and Siy v. ADB Footnote 38 and Mesch and Siy v. ADB (No. 2).Footnote 39 In the 1994 decision, the tribunal found a violation of the bank's obligation to provide equal compensation for comparable work, noting that under the circumstances “the failure to consider the incidence of taxation is inconsistent with the principle of ‘equal compensation for comparable work’”.Footnote 40 However, the practical effect of these rulings in favour of the applicants was short-lived, as the board of directors then changed the policy to preclude tax reimbursement. A staff challenge to this failed; first, on procedural grounds (basically), in a unanimous decision, Mesch and Siy v. ADB (No. 3),Footnote 41 and then in a later case on the merits (by a majority of three to two of the five judges) in Mesch and Siy (No. 4).Footnote 42 The ruling on the merits found that reimbursement of national income tax was not a fundamental and essential condition of employment, and that the board of the bank had the power to unilaterally amend the rule and thus staff members’ contracts of employment. The bank could, therefore, continue to use its new rule that the principle of equal pay for equal work applied to pre-tax salaries only.
In the final case in this series, a vigorous dissent pointed out, inter alia, that the tribunal had in effect reversed its earlier finding on the discrimination claim. This two-member dissent maintained that inequalities in the net earnings of staff breached “the principle of equal pay for equal work” and that tax reimbursement did indeed constitute a “fundamental and essential” condition of employment, citing various authorities.Footnote 43 While the three-member majority had found otherwise, its opinion contained language of wider interest to discrimination claims. The majority referred to implied, non-waivable rights such as the right of employees to be paid “a fair wage, one that assures ‘equal remuneration for work of equal value’”,Footnote 44 but concluded that the obligation to treat employees equally “does not extend to remedying discrepancies created by the conduct of the state of which the employee is a citizen”.Footnote 45
The question of tax reimbursement also came before the IDBAT early in its history, in a case that involved home leave and educational allowances for staff members who were United States nationals. The matters raised in Cook et al. v. IDB Footnote 46 had been pending in the bank for some time, with an initial resort to conciliation and the involvement of outside expertise. The tribunal eventually dismissed the case brought by multiple staff members because no effort had been made to establish particularized financial harm to each, and the tribunal could not act as a legislator or arbitrator.Footnote 47
2. Claims Relating to Salary Conditions and Access to Benefits
The question of the impact of national legislation on remuneration from the Inter-American Development Bank (IDB) also arose in another context. Local members of staff from three country offices challenged the fact that they were no longer able to deposit part of their salaries, in US dollars, with the Federal Credit Union located in the United States. In this case, Cressa et al., Ares et al., Canterbury et al. v. IDB,Footnote 48 were local staff who claimed a breach of the principle of equality of treatment occasioned by the discrimination between them and international staff, who were allowed to use the credit union. The tribunal rejected their claim by a majority of four to three of the seven members. The majority opinion concluded that “there are two different legal regimes” for the two categories of staff.Footnote 49 The ruling held that the bank had not made a substantial adverse change in the essential terms of the employee's appointment, and the complaints were dismissed.Footnote 50
Two judges dissented on the basis of the protective principles of international and national labour law.Footnote 51 Referring to the constitutive agreement between the IDB and its member states, they argued that the bank was under no obligation to follow national law regarding payment of salaries solely in local currency. A third dissenting opinion saw the “substantial adverse changes to salary conditions for local staff in three country offices [as amounting to] de facto discrimination between local staff in different country offices”Footnote 52 rather than between international and local staff. The different approaches taken by the majority and the dissents in this case illustrate the importance of how a discrimination claim is framed.
The distinction between national and international staff also came before the ADBAT. In De Armas et al. v. ADB,Footnote 53 a group of staff of Filipino nationality sought to obtain four types of staff benefits enjoyed by bank employees in the professional category, who were of other nationalities. The ADBAT found that the discrimination in question (regarding education grants, home leave travel, a force majeure protection programme, and severance pay for staff resettling outside the duty station country) was based not on nationality, but rather on the place of service. It stated that a distinction between benefits for expatriates and staff serving in their own country “does not constitute discrimination if such benefits are reasonably related and proportionate to [the] disadvantages” that expatriates face.Footnote 54 Applying this test, and citing Decision No. 35 on equal remuneration, it directed the bank to make some changes in its practice, while dismissing other claims. The decision also noted that prior to the matter reaching the tribunal, the bank had agreed to extend two other types of benefits (group medical insurance and a salary advance for incoming professional staff) to Filipino and non-Filipino nationals alike.Footnote 55
Another issue giving rise to discrimination claims involved currency adjustments. In Etienne v. IDB,Footnote 56 a bank pensioner sought an adjustment of his bank pension in light of the erosion of the value of his local currency. The majority of the IDBAT noted that “the Bank must give equivalent treatment to comparably situated employees”,Footnote 57 but did not find unequal treatment in this instance. Dissenting, one tribunal member took the view that the IDB retirement plan's failure to maintain the value of the retiree's income by adjusting for inflation and devaluation constituted a violation of the principle of equal treatment.Footnote 58
More recently, in Guimarães Altafin et al. v IDB,Footnote 59 local staff in one of the banks’ country offices claimed violation of the principle of equality of treatment in the bank's application of the methodology it used to review the salary scale for local staff in all country offices. The tribunal ruled that the bank was not obliged to meet the criteria for creating a salary structure through a given method, but rather to reach a result. While the method chosen was applied only to this country office, where salaries had decreased, information on comparative salary movements submitted by the bank led the tribunal to find that the complainants had failed to make their prima facie case of discrimination.Footnote 60 In a dissenting opinion, one judge argued that the technical complexity of the facts would have required full clarification; he was of the view that although neither party had put forth conclusive evidence, the complainants had borne their burden of proof.Footnote 61
C. Other Claims of Individual Arbitrary Treatment vis-à-vis Treatment Given to Others Similarly Situated
Several other ADBAT and IDBAT cases have entailed challenges based on comparison between the situation of an individual claiming unequal treatment vis-à-vis others who are arguably similarly situated. For instance, in Schwarzenberg Fonck v. IDB, Footnote 62 the complainant failed to convince the IDBAT that the treatment of another employee in relation to the same issue was an identical precedent; a factual distinction led the tribunal to conclude that the principle of equality was not violated.
In Murray v. ADB,Footnote 63 the applicant alleged that he had been discriminated against because he had not been treated in the same way as other staff members seeking an extension of their fixed-term contracts. The ADBAT held that “[t]he principle of non-discrimination requires that staff members in ‘the same situation in fact and law’ be treated equally”. However, “[e]quality of treatment is not required when the circumstances of the persons concerned are different”.Footnote 64 The tribunal found that to be the case here, denying the claim.
While coming to a different result, the IDBAT took a similar approach in the important decision of Agusti, Vena and Verdejo-Sancho et al. v. IDB.Footnote 65 Multiple complainants, “Former Long-Term Consultants” who had become bank staff, alleged violation of the principle of equality and the principle of equal benefits for equal work because their earlier misclassification had precluded them from opting to purchase credits towards a retirement pension. The tribunal relied on the bank's own documents to support its finding that the individuals concerned had been performing staff-like functions while serving under contracts as long-term consultants.Footnote 66 The tribunal ordered that the official start date of each former long-term consultant was to be adjusted, and that they were to be granted the right to purchase past years of service in the staff retirement plan; alternatively, the bank could compensate each with an amount equal to three years of basic net salary.Footnote 67 In support of its ruling, the IDBAT cited Amora v. ADB.Footnote 68
It appears that in cases involving alleged discrimination in the deciding of promotions or the reclassification of posts, the applicants found it difficult to provide sufficient proof to prevail. In Thompson v. IDB,Footnote 69 the complainant failed to convince the tribunal that his denial of a promotion had been the result of a pattern and practice of prejudice against him. While the tribunal found that there was evidence to suggest that the complainant “was not always treated by his superiors in a fair or considerate manner”, the evidence did not establish that his non-promotion was the “product of discrimination or of any other improper practice or motive … it reveals no pattern of unequal treatment, abusive behaviour or collusion against him”.Footnote 70 This conclusion also found support in the tribunal's own examination and comparison of the performance of the applicant's co-workers who had received promotions.
In Rios v. IDB,Footnote 71 the complainant unsuccessfully challenged the IDB's refusal to reclassify his post despite an increase in the complexity of his position. The majority of the IDBAT found that this exercise of discretionary power had not been tainted by discrimination or a violation of the principle of equality.Footnote 72 In a dissenting opinion, three of the seven judges pointed to the reclassification of two other comparable positions; they took the view that procedural and substantive provisions in the bank's rules and policies had not been followed. This was, in their view, “tantamount to repudiation of the universal principles of equality and equity”.Footnote 73
Sometimes a discriminatory act is part of a wider pattern of behaviour, as illustrated by Ballock v. IDB,Footnote 74 in which the tribunal found a dismissal to have been unjustifiable and an abuse of authority.Footnote 75 Part of the background included making the complainant's continued employment, after she had already worked at the bank for nine years, contingent on passing a language test that had never been imposed on any staff member in that field office. While this discriminatory element paled into insignificance when comparted to the degrading treatment found by the tribunal, it again showed the relevance of comparisons with other members of staff in similar situations.
On occasions, claims of discrimination have been lodged against the bank's response on that point, but not specifically taken up by the tribunal in its judgment. For instance, in Chong v. IDB,Footnote 76 the complainant had been dismissed for misconduct involving, inter alia, outside publications that had relied on bank research assistance, and which had appeared in its working papers. The former staff member argued that many colleagues had done the same. The tribunal found important distinctions, however, since he had not sought permission, had the prospect of substantial financial gain, and acted in violation of the bank's code of ethics and other rules. Although contesting the relevance of a colleague's conduct in the matter, the bank confirmed that this other person had also been sanctioned. The tribunal itself did not comment on this aspect of the case, other than to say that it found no irregularities in due process that would vitiate the decision or the sanction imposed on the complainant.Footnote 77
The ADBAT, in Ms. J v. ADB,Footnote 78 also noted that “one of the elements of due process is fair and equal treatment, and … the imposition of a sanction may not be discriminatory” (citing, inter alia, Bristol v. ADB).Footnote 79 The applicant's employment had been terminated because of her involvement in a fraudulent scheme. Information supplied by the bank in response to the tribunal's request indicated that an equally involved staff member had received a lesser penalty. Since the disciplinary action had been taken for the same underlying reasons, the tribunal found that the bank had failed to exercise its disciplinary sanctions without discrimination, and ordered the rescission of the dismissal decision or payment of compensation,Footnote 80 which was set at a low amount that took into account the individual's own behaviour in the scheme.
D. Claims of Sex/Gender Discrimination (A Protected Ground)
Several cases of alleged sex/gender discrimination have been heard by the ADBAT, and one by the IDBAT, which also addressed related issues in the obiter dicta of two other cases.
In Ms. A v. ADB,Footnote 81 the ADBAT rejected a claim of gender discrimination. Its comments on the burden of proof are interesting. While recalling that the applicant “normally” has the burden of proof, the tribunal noted that she had a reasonable perception that she was the victim of discrimination, and that the bank should thus show that she was not denied a promotion on the basis of gender.Footnote 82 The tribunal later stated, “[e]ven if she had proved a prima facie case of gender discrimination, the evidence shows that the appointee [a man] had at least equal qualifications”.Footnote 83 The tribunal had considered information submitted by the applicant regarding others’ promotions over a seven-year period, and the bank's more granular account of those statistics; it also took into account efforts made by the bank to improve the situation of women there more generally.Footnote 84 The tribunal was not persuaded that the applicant had shown the bank's action to be “a consequence of systemic gender discrimination”.Footnote 85 It did, however, find that the manager's attitude had contributed to a strained relationship,Footnote 86 and awarded her US$5000 in damages, while dismissing the claims.
Earlier, in Patricia Alexander v. Asian Development Bank,Footnote 87 the applicant alleged that the bank's decision not to renew her fixed-term appointment, after four years of service, was based on performance evaluations that were procedurally flawed and “tainted with gender-based discrimination”.Footnote 88 The tribunal noted the strained nature of the interaction between the applicant and her manager,Footnote 89 and further noted that it was not unreasonable for her to have interpreted the manager's behaviour “as a manifestation of prejudice against her”.Footnote 90 Without substituting its own assessment of an employee's performance for that of the bank, “the tribunal has the power to examine that the bank has exercised its discretion in a non-discriminatory manner”.Footnote 91 The tribunal observed that “discrimination is a relative matter, pertaining to the manner in which a staff member's performance has been assessed by his or her superiors in comparison to the assessment of the performance of other staff members by those same superiors”.Footnote 92 The tribunal also noted that it may intervene “if facts disclose that staff members have been assessed in manifestly and unjustifiably differing ways for performing essentially comparable tasks”.Footnote 93 On the disputed facts before it, regarding budgets and timelines, the four-member panel of the tribunal was, however, unable to reach such a conclusion.
The applicant also alleged that her outspokenness, independence, and critical mind were held against her due to gender bias. She had dealt with issues relating to “Women in Development” in her work as an economist, and was an outspoken representative of women on bank-related issues focusing on gender.Footnote 94 After noting the bank's clear policy against gender discrimination, the tribunal stated that proof of discrimination is often difficult, “for it turns upon motives and attitudes which are not always apparent on the surface of behaviour. It is almost uniformly necessary to prove the illicit subjective state of mind by recourse to elements of circumstantial proof.”Footnote 95 (This statement is not in line with contemporary discrimination doctrine, which focuses on effects on the person on the receiving end, rather than the motives of the alleged perpetrator.)
The applicant further claimed that she was a victim of gender stereotyping when not showing “submissiveness or deference to her colleagues”, and that her assertiveness was seen as insubordination.Footnote 96 However, the tribunal found “no evidence that the Manager's attitude toward, or assessment of the Applicant, however negative, was caused by or even related to the Applicant's gender”.Footnote 97 Critiques of her work organization and timeliness had been voiced by men and women co-workers alike.Footnote 98 The tribunal reiterated the bank's policy of “improving the recruitment, retention and work environment for women professionals, which among other things requires the extinguishing of gender stereotypes”, and found that the applicant had failed to prove that the decisions taken had been motivated by gender discrimination.Footnote 99 However, it found that the manager's style had caused some intangible injury to the applicant, and thus awarded her payment of US$5000, while denying the claims.Footnote 100
In Andrieu v IDB,Footnote 101 the claimant questioned a number of actions that had culminated in termination of her employment in the course of the bank's reorganization, starting with the earlier choice to promote a male colleague instead of herself. Using a chart to compare when each employee was born, when each had started with the bank, and when they had attained various grades within the bank, the IDBAT concluded that her career “was not adversely affected by sex discrimination”.Footnote 102 On other grounds, however, the tribunal awarded her payment of two years of her basic net salary.Footnote 103
Gender-based discrimination may reflect societal roles and related prejudicial ideas, as illustrated in the dicta of two cases brought before the IDBAT. In Renart v. IDB,Footnote 104 the issue of discrimination on the basis of maternity/child-rearing arose only indirectly. While certain facts were in dispute – Ms. Renart had alleged that her supervisor had instructed her to inform another employee that the latter would not be assigned to a temporary secretarial post – the reason proffered was that having a young child would detract from the secretary's dedication to the job, and that would make her work less effective. After this message was delivered, the secretary internally challenged the decision as discrimination based on maternity. The supervisor, considering that Ms. Renart had committed “inadmissible indiscretions” in relating their conversation, obtained Ms. Renart's transfer to another unit several days later. In the challenge to this, and other disciplinary measures against Ms. Renart, the tribunal – without endorsing one version of the facts over another – found that the bank's action had constituted a “massive overreaction”,Footnote 105 and afforded her relief. The tribunal made no comment on the inappropriateness of the underlying message of prejudice towards women employees with young children (an issue that was, admittedly, not directly before it).
Recently, in Lovo Parrales v. IDB,Footnote 106 the IDBAT ruled in favour of a supervisor who had been dismissed for misconduct. It found, inter alia, that the decision to terminate the complainant's employment was disproportionate to the misconduct proven, and that the bank had used an improper standard of proof. Among the bank's allegations were that the supervisor had discriminated against an employee when she was pregnant and, later, was later taking nursing breaks. The tribunal found no evidence of this;Footnote 107 rather, the supervisor had had “reasonable business motives for taking actions and decisions characterized [by the bank] as discrimination, abuse of authority, and harassment”.Footnote 108 (This language is reminiscent of the language national courts use, but then went on to ask whether the legitimate business objective could have been achieved in a non-discriminatory manner.) In its discussion of the issue, the tribunal cited the bank's rule prohibiting discrimination based on, inter alia, gender and disability. Here, the IDBAT found no evidence of discrimination being due to the employee's pregnancy or of her being a new mother.Footnote 109 The tribunal dismissed the bank's claim by noting only that “pregnancy is not a disability”,Footnote 110 while not exploring discrimination on the basis of childbearing, which – when proven – can constitute a form of gender discrimination. The decision sends a somewhat mixed message.
IV. Disclosure and Use of Data
As noted, discrimination claims often call upon a tribunal to look into the situation of others who are, arguably, situated similarly to the applicant. This may require disclosure of information that is not within the complainant's possession. In Alexander v. ADB,Footnote 111 the applicant asked the bank to supply statistics on the hiring and promotion of professional staff within her department and division, classified by gender and salary level,Footnote 112 even though she was challenging the non-renewal of a contract and an underlying performance appraisal. Over the bank's objection, the tribunal ordered the disclosure. The Alexander decision does not report details of the statistical picture presented; when ruling on the merits, the tribunal treated the statistical information about the number and position of women in the staff as “useful background”, but not itself sufficient to prove discrimination against the applicant.Footnote 113
The Alexander case suggests an interplay of claims of direct and indirect discrimination. In indirect discrimination, an apparently neutral practice puts a member of a protected group at a particular disadvantage when compared with other persons. The respondent is then called upon to show that the provision or practice was objectively justified by a legitimate aim, using the necessary means to achieve it that are appropriate and necessary.Footnote 114 In some systems, a combination of individual experience and statistical evidence that shows a significant disparity among groups in relation to a prima facie neutral practice can result in the reversal of the burden the proof.Footnote 115 The ADBAT may have hinted in this direction in Ms. A v. ADB, and in a later case, Claus v. ADB,Footnote 116 to which we now turn.
As one of several bases for challenging the non-renewal of a fixed-term appointment, the applicant in Claus claimed gender discrimination. The bank argued against reliance on information concerning any staff member other than the applicant. The tribunal noted that the application had set out “specific allegations that might in other circumstances have called for a shift in the burden of proof to the bank to show that objective considerations other than sex had justified its actions”.Footnote 117 However, the applicant had raised this claim only as an afterthought; she had not mentioned it in earlier statements to the bank about her treatment. The tribunal pointed out that in examining allegations of discrimination it may be required to examine the treatment of other staff members “in order to establish whether or not, by appropriate comparison, an applicant has suffered discrimination on a prohibited ground”.Footnote 118 The IDBAT took a similar approach in Thompson v. IDB, and in Andrieu v. IDB, where it compared the respective complainant's situation to that of other staff.
Cases of blatant discrimination (such as a manager using racial, religious, or sexist slurs) may be unlikely to reach a tribunal because the development bank in question would probably have dealt with the matter well beforehand. For the manager, this would be through measures under the institution's staff rules and code of conduct. When the injured party pursues a claim, it may be dealt with by following the steps below, and/or by a settlement between that person and the institution. However, discrimination is often subtler and sometimes structural in nature.
Given the relatively few cases involving the judgments of these two tribunals on discrimination issues, any conclusions are necessarily tentative. All the same, the claims that have reached the two tribunals have posed some challenges for them. Dissenting opinions are not rare in cases involving claims of discrimination. Some uneasiness may also be suggested in instances where a tribunal concluded that the claim was unfounded, but nonetheless awarded some relief to the applicant (as in Alexander v. ADB and Ms. A v. ADB). Perhaps differing perceptions of sufficient evidence of discrimination may also be playing a role.Footnote 119
Applicants could also present better supported claims through the submission of evidence, rather than simply invoking the word “discrimination”. Where necessary, tribunals can use their own rules to evince documentation relevant to establishing whether or not impermissible discrimination has occurred, and when needed to reframe the appropriate categories used for comparison. And even if a tribunal shifts the burden of proof where the claimant has made out a prima facie case of discrimination, harm to the individual concerned will still need to be shown.
One dilemma for such tribunals in discrimination cases may lie in marrying basic doctrines: first, the principle of non-discrimination or equality of treatment for all, and second, the tribunals’ preoccupation with whether a condition of employment is essential or non-essential, with the resulting wide discretion afforded to what they deem as non-essential. Logically, however, if there is a finding of direct discrimination on a protected ground, whether the condition of employment is essential or not should not matter.
Where indirect discrimination is alleged on a protected ground (sex, race, etc.), the tribunal might proceed by asking whether the prima facie neutral practice in question brought a particular disadvantage for a complainant belonging to the relevant group? If so, can the discrimination/distinction be justified on the basis of a legitimate operational purpose that could not be achieved in a non-discriminatory manner? Whether an essential condition of employment is at stake could well be a relevant factor here, but that characterization would not automatically trump a discrimination claim based on a protected ground. Discriminatory intent by the alleged perpetrator may be relevant in proving a claim; however, it is not required for a finding of either direct or indirect discrimination. What matters is not simply formal equality, but effective equality in practice. This approach dovetails with how international institutions aspire to carry out their missions.
Over twenty years ago, Pangalangan wrote that international administrative tribunals have, while citing the norm of equality, so far “not adopted doctrinal techniques, highly developed in municipal jurisdictions, for applying ‘strict scrutiny’ when the discrimination is based on ‘suspect’ criteria, typically race- or gender-based”.Footnote 120 The more recent decisions in the ADBAT, and the new provisions in Article IX(2) of the IDBAT Statute regarding monetary compensation where discrimination has been found, point to a closer – but not yet full – alignment with overall trends in discrimination law. It is possible that further development will be worth watching.
All views expressed in this article belong the author, who thanks Shin-ichi Ago (President, ADBAT) and Giuliana Cane (Executive Secretary, IDBAT) for comments on an earlier draft.
Open Access publication is provided through the agreement involving the University of Göttingen (George-August Universität, Göttingen).
Anne TREBILCOCK is the Vice-President of the Asian Development Bank Administrative Tribunal, Vice-President of the GAVI Alliance Appeals Tribunal, and associated with the Institute of Labour Law, at the University of Göttingen, Germany.