The overlords in the World Bank, who are protected by absolute immunity from lawsuits, do not realize that racial discrimination is not all about rejected positions and denied promotions. It is a traumatic experience because it chips at people's human dignity. It costs lives.
Despite my doctor's advice to avoid stress, I read a stressful draft article titled "Black mothers literally dying for their children in the World Bank." [Article appears next in this issue -Editors] The article subtitled "A call for the resignation of World Bank President Jim Yong Kim" carries overwhelming evidence to justify its call for the president's resignation or forced ouster. No CEO in corporate American can remain in office for one more week under similar circumstances.
The article mentions a late African colleague who succumbed to cancer while fighting racial discrimination at the World Bank. It noted that she was advised by her colleagues to leave the Bank and focus her energy on her health. Her answer was that, "The Bank will cancel my G4 visa. I cannot uproot my children from their school and friends."
I was one of her colleagues who gave her such advice. She chose to "stick it out." I was not able to understand her thinking at the time. Little did I know that the advice I dispensed to her would return back to me like a boomerang. Faced with the same situation I ignored my own advice and chose to "stick it out."
Unbeknownst to the person who sent me the draft for my "comments and inputs", the draft reached me as I was preparing for mastectomy.
It put my emotions afire like a TNT stick that is lit up on both ends. In the end, I decided to write a complementary article to add my voice to the chorus of protest so no other Black mother, wife, sister or daughter will ever have to say "I will stick it out."
My late colleague's and my stories are by no means isolated anomalies. The article I read provides a number of cases of Black women who are (were) subjected to the vagaries of racism and cancer simultaneously, some of whom are no longer with us.
The link between racial discrimination and cancer is not a wild speculation. There is a large body of scientific research in reputable institutions linking racial discrimination and cancer - most particularly breast cancer.
Though the debate whether sustained stress, steaming from institutional discrimination, causes cancer is far from settled, there is a general consensus that if someone already has cancer, stress plays a significant role in leading to a more rapid progression of the disease. For those of us on the receiving end the distinction between "caused by" and "aggravated by" is a distinction without a difference.
The overlords in the World Bank, who are protected by absolute immunity from lawsuits, do not realize that racial discrimination is not all about rejected positions and denied promotions. It is a traumatic experience because it chips away people's human dignity, and degrades their humanity. The evil of racism goes beyond costing human lives. It stains humanity.
In 2013, I wrote to President Kim, pleading for a provisional relief after my wrongful termination in retaliation for registering a formal racial discrimination complaint.
I pleaded: "Dear Dr. Kim, I write to you as a victim of racial discrimination and as one inflicted by breast cancer at a young age without any family history of cancer... I am currently in Paris waiting for a surgery and I have been out of work for six months without any resource or recourse... I write to you to ask for a provisional relief and to once again plead with you to resolve my case through external arbitration."
I explained the need "to avoid going through a stressful litigation process before the Bank’s widely discredited Tribunal that never rules in favor of victims of racial discrimination."
As difficult as writing this article has been, pushing the send button to submit my plea for President Kim's sympathy was far more excruciating. It was utterly humiliating. But at the time my focus was to make sure that my daughter, who was in school in the US, had a place to stay, as I was falling behind my bills.
My plea did not even get so much as an acknowledgment, let alone a provisional relief.
It took a lot of energy to file a complaint with the Tribunal. The General Counsel (Anne Marie Leroy) and her Chief Counsel (David Rivero) employed their common delay and drag procedure, including filing preliminary objection that added over six months to my stress. It took 18 months to receive the Tribunal's standard judgment: "The Application is dismissed."
In order to dismiss my claims the Tribunal (i) systematically suppressed all the material evidence I submitted to substantiate my racial discrimination allegations; (ii) willfully suppressed my evidence to undermine and ultimately dismiss my retaliation claims; and (iii) used its judgment that has been condemned as "apartheid justice" as a precedent.
SYSTEMIC SUPPRESSION OF MATERIAL EVIDENCE
According to the Tribunal, “discrimination takes place where staff who are in basically similar situations are treated differently.” A staff filing racial discrimination claim must establish a prima facie case, showing that she was treated differently from her colleagues who are in the same situation.
With a PhD and 12 years of work experience, I joined the World Bank as a short-term consultant in 2001. I was trapped in the Bank’s consultancy roster for many years, despite excellent performance record and recommendations by my immediate supervisors to convert my status to a term staff.
In October 2008, I applied for a Senior Technical Specialist position that was advertised for “a three year renewable term appointment.” I was interviewed in November and was informed of my selection for the position in the first week of December.
On January 25, 2009, before my official offer letter was issued, I was diagnosed with an aggressive form of breast cancer. I promptly informed the Bank of my diagnosis.
The following week, I was informed that my position had been downgraded from a three-year renewable regular staff term assignment to an extended term consultancy assignment for two years. This meant significant salary cuts and benefits reductions, including losing a disability leave. Meanwhile, the title and the job descriptions for the position were maintained as advertised.
At the time, the department was hiring 12 technical experts. Five Blacks and seven non-Black candidates were selected to fill the advertised positions. All the seven non-Sub Saharan Africans were given staff position as advertised. In contrast, only two of the five Sub-Saharan Africans were given staff positions and the remaining three including myself were downgraded to extended term consultancy assignments.
In my complaint I provided a table that showed "different treatment between Blacks and non-Blacks both in 2009 and also in 2011/2012."
The table showed that all seven non-Black candidates were given regular staff positions in 2012 upon completion of their three-year term assignments. Only one of the two Blacks who was on a three-year term was given a regular position. By comparison all three of us who were downgraded in 2009 were once again downgraded to a short-term consultancy upon completion of our two-year extended term consultancy assignments.
Though my primary case was the Bank's decision to close my consultancy contract in July 2013, it was important to establish the pattern of discriminatory treatment I endured since 2001, with particular emphasis on what happened in 2009, 2011 ad 2012.
The Tribunal dismissed all my evidence, stating: "Not having raised them before and not having taken them through administrative review, the Applicant cannot now incorporate these earlier decisions by the Bank as part of a ‘pattern’..." It was difficult to prove my case based on the July 2013 incident alone, without establishing a pattern.
The exclusion of such critical evidence is inconsistent with the Tribunal's jurisprudence. For example, in CH. v. World Bank (2014, Decision No. 489), the Tribunal judgment stated: "The Tribunal finds that the Applicant’s actions do not constitute a single act of isolated misconduct, but, having continued for many years, amount to a pattern of misconduct."
Similarly, in CG. V. World Bank (2014, Decision No. 487) the Tribunal highlighted: "The Tribunal finds that the repetition of the Applicant’s conduct virtually on a daily basis created a pattern of misconduct through various short term consultant contracts over many years."
If a staff member's misconduct over many years is used by management to establish a pattern, why can't management's discriminatory actions over many years be used by aggrieved staff to establish a pattern? It was this long-held lack of impartiality that had led me to request for external arbitration in the first place.
By ruling the pattern of discrimination inadmissible the Tribunal denied me due process. The Bank's general counsel's official position is that "Allegations of due process violations by the Tribunal are not cognizable" under the Bank's justice system and, therefore, carry no legal weight.
THE TRIBUNAL SUPPRESSED MY EVIDENCE TO UNDERMINE AND ULTIMATELY DISMISS MY RETALIATION CLAIMS
In my application I provided evidence that I had excellent performance record for 12 years before I complained about the race-based differential treatment. Six months prior to finishing my two-year extended consultancy assignment my immediate supervisor filed in my personnel record:
“["Jane's"] technical skills are excellent. She has an exceptionally solid and deep understanding of all technical issues. She is an essential asset for the Bank.... As her second-year consultancy assignment will come to an end it will be important for the program to offer her a term position to continue the excellent work by the team and maintain the emerging leadership of the Bank [in the area].”
Instead of acknowledging my contributions and rewarding me with a term staff position, the Bank downgraded me from extended term (full-time) consultant to a short-term (part-time) consultant.
I had neither the energy nor the wherewithal to fight the decision. I continued to focus on my work and health. In July 2012, one of the Sector Leaders wrote to me a note stating:
“["Jane'], I want to let you know that I received your contribution to [the country report]. You are the first consultant to send in your report. The report responds fully to my expectations and I would like to thank you for a great work. Keep on that level of performance and Task Team Leaders will be always happy to work with you.”
In the same month, I was randomly selected to join a group of staff and consultants to meet with President Kim. This was supposed to be a candid session for us to share our opinions. I shared with him the issue of racial discrimination in general, and my own encounter with it.
Within a month, in September 2012, my managers said that my work was not satisfactory and closed my consultancy contract on the grounds that I was “not the right person" to do the job. My consultancy contract was further reduced to 35 days.
From that point on my career took a downward spiral, which culminated in closing of my consultancy contract in July 2013. That is when I reluctantly filed a complaint with the Tribunal.
With respect to retaliation claim the standard for a prima facie case is set in the World Bank Staff Rule 8.02. The Rule in essence states that a staff must establish a reasonable case that her filing a formal complaint was a contributing factor in the Bank's subsequent adverse employment action.
This means that the only way an applicant can establish retaliation is by providing evidence that there is significant difference in the way she was treated before and after she filed racial discrimination complaints against management.
My application showed that the retaliation started within a month after I complained to President Kim in July 2012. The Tribunal looked at only on what happened in July 2013 as an isolated incident and disregarded what happened in 2012. It was difficult to establish a pattern.
THE TRIBUNAL USED ITS JUDGMENT THAT HAS BEEN UNIVERSALLY CONDEMNED AS GROSS INJUSTICE AS A PRECEDENT
The Tribunal used AI, Decision No. 402  as a precedent. The judgment stated: "With respect to allegations of discrimination based on race, gender, or other prohibited grounds, the Tribunal has affirmed that it will not hesitate to invalidate such decisions. AI, Decision No. 402 , para. 39."
The AI case refers to Yonas Biru's case that has been condemned by over a dozen independent reviewers as a manifest miscarriage of justice. Some have called it "apartheid justice." Indeed, the Tribunal could as well have used a precedent from apartheid courts of last century.
Dr. Biru's case that started in 2009 and is currently on its sixth appeal before the Tribunal is best summarized by the Government Accountability Project (GAP): "Two attorneys familiar with the Bank’s hiring, promotion and retention practices who could not speak publicly, told GAP unequivocally that Dr. Biru’s was the worst case of racial discrimination they had ever seen."
GAP's findings were consistent with the findings of the Bank's Senior Advisor for Racial Equality who documented his "candid opinion" in two areas: "The injustice that Mr. Biru was subjected to was profoundly beyond the pale" and "Mr. Biru was failed by the Tribunal’s judgment."
A joint memo by the US Treasury Department and the office of the US Board of Directors to the World Bank stated: "Following an extensive review of [Mr. Biru's] supporting materials from the record we believe that [his] request for external arbitration seemed warranted."
The Staff Association Executive Committee was less legalistic and more candid compared to the carefully coached statement of the US government. It stated that "[Mr. Biru's] case shows that a number of aspects of the internal justice system are broken."
Below I will highlight two issues that are relevant to my experience.
INHUMANE AND CRUEL TREATMENT
In 2009, while in litigation with the World Bank, Dr. Biru was told by his doctor and a specialist that he may have cancer and needed to go through a battery of tests, including biopsy. This came as he was preparing for an extended business travel to four countries in three continents.
Noting that there was no urgent deadline with the trip and that his biopsy was only 10 days away, he informed the Bank that he could not travel before his tests and medical procedure. His managers used this as one of their excuse to put him on probation, documenting that "there were no issues standing in your way to delay your mission [travel]."
Dr. Biru filed a request for provisional relief with the Bank's Appeals Committee, stressing that the retaliatory abuse had become intolerable. He offered to provide medical certificates to corroborate his claims. The Bank’s lawyers objected stating that "he was claiming health problem to win sympathy."
The Appeals Committee rejected his request for provisional relief stating: "The Appeals Committee has interpreted undue hardship to refer to situations where staff members demonstrate the likelihood that the consequences of the management actions would cause immediate and irreparable harm."
By the grace of God the biopsy results cleared Dr. Biru of any cancer and he was able to undertake his travel while on probation. The Tribunal ruled that the Bank's decision to put him on probation was justified.
RELENTLESS RETALIATORY ABUSE
During the Tribunal proceedings Dr. Biru provided evidence that staff and consultants reporting to him were instructed by the Bank not to include him in email distributions and not to share with him data, though he was in charge of the Bank's global economic data production. This obviously made it impossible for him to fully and optimally manage his team and the global data production work.
The Bank admitted before the Tribunal on the record that he was indeed denied access to critical data and data production software. Nonetheless, he was held accountable for the quality and timely production of the data. He was subsequently given bad evaluation for "failing to provide guidance in the data production work." And this was the second reason used to put him on probation.
In addition to the Bank's admitted ostracization practices, Dr. Biru filed four medical certificates along with a 12-page expert report to substantiate his claims of emotional abuse and pain that he endured because of the relentless and open retaliation.
The 12-page expert report established that Dr. Biru "was subjected to 'retaliatory mobbing.'" This, according to the report, involved "assaults on the dignity and integrity, humiliation, demeaning actions, emotional abuse, and/or terror." The report further established that "Mr. Biru’s physical and mental health was impacted as a consequence."
The Tribunal judgment falsely claimed: "The Applicant’s heated rhetoric about the [emotional] injury he perceives simply cannot substitute for material evidence of his serious charges. … Naturally the Tribunal cannot accept the Applicant’s allegations of bullying and intense psychological abuse, unsupported as they are by any evidence save his own assertions." This was patent and willful fraud.
One of the Tribunal judges wrote Dr. Biru a note of regret stating: "I held up [the judgment] for some months pleading your case but was outnumbered. I did not find it fit to dissent... I was not yet ready for such a momentous step and at the time I was not aware that your entire career rested on this case."
In 2015, in its judgment of Dr. Biru's appeal, the Tribunal admitted that it had all the evidence when it rendered its 2010 judgment, effectively admitting that its judgment was based on willful false assertion.
Biru's case is best presented in Frank Watkin's shocking article, "World Bank Tribunal rules a Black man has no rights to his identity" that was published in the October 13, 2015 issue of this forum.
This is the precedent case that the Tribunal drew a guiding principle to dismiss my case.
DO BLACK LIVES NOT MATTER?
In 2015, World Bank diversity report brought to light that "Although the institution has made some progress to gender issues and some on Lesbian, Gay, Bi-sexual, Transgender (LGBT) issues, race and not just race broadly, but specifically issues for Black staff (African and Afro-descendant), continue to be problematic."
Over the last three years, President Kim has received numerous pleas from Black employees to resolve their outstanding racial discrimination claims through external arbitration, bringing his attention to serious health issue they were battling, including cancer and clinical depression. The President ignored their pleas.
As reported in the March 3, 2016 issue of Pink News, speaking at the Economist’s ‘Pride and Prejudice’ conference Dr. Kim explained his proposal to block loans to countries with draconian laws against lesbian, gay, bisexual, and transgender (LGBT). He spoke thus of his commendable commitment:
“I worked as a doctor, and this is an important issue for me… A lot of people came out and told me I was crazy. The critiques made a lot of sense to a lot of people… a lot of my own staff were [against it]... We are not allowed to make political judgments, and that’s not what we’re doing. We’re trying to look at another principle that is important, that principle is that if something we support leads not only to discrimination but endangerment, don’t we as an institution have to stand up and say ‘no’?”
Why isn't racial discrimination that endangers the health and lives of Black people not an important issue for President Kim, knowing as he does the prevalence of institutional racism in the World Bank and the link between racial discrimination and cancer - be it as a cause or as an aggravating factor?
How many Blacks mothers, wives, sisters and daughters have to suffer and even die, before the World Bank Board of Governors take the Bank and its handmaiden Tribunal accountable for human rights violation?
I call upon advocates of human rights around the world to write to the World Bank Board of Governors to hold President Kim and the Tribunal accountable for human rights violation. The Governors can be reached through the Dean of the Board, Dr. Merza Hasan - [email][email protected][/email]
I ask all people of conscience to write to the chair of the World Bank Staff Association, Mr. Daniel Sellen, to end his silence in the face of human rights violation -- [email][email protected][/email]
*Jane Biko is a pen name. The Bank's senior management knows my story. If they claim otherwise, I give the editor of this publication permission to reveal my identity to them, confidentially.
* THE VIEWS OF THE ABOVE ARTICLE ARE THOSE OF THE AUTHOR/S AND DO NOT NECESSARILY REFLECT THE VIEWS OF THE PAMBAZUKA NEWS EDITORIAL TEAM
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