Policy Statement: Application of Title VII, The ADEA, and EA to International Organizations

1. SUBJECT. Policy Statement: Application of Title VII, the ADEA, and EPA to International Organizations.

2. PURPOSE. This Policy Statement is intended to provide guidance in the handling of cases where the employer is a public international organization.

3. ORIGINATOR. Office of Legal Counsel.

4. EFFECTIVE DATE. On receipt.

5. EXPIRATION DATE. July 1987 . [This document is cited with approval in the New Compliance Manual, Section 2, Threshold Issues (5/12/2000). Thus, it remains in effect despite its expiration date.]

6. INSTRUCTIONS. This Notice supplements the Instructions in §605 of Volume II of the Compliance Manual, Jurisdiction, and should be inserted after p. 605-24.

I. Introduction

This policy statement applies to cases alleging employment discrimination by public international organizations.

Public International organizations are the by-product of the world community's need to establish and develop formal, continuing institutional structures for the conduct of certain aspects of the relationships among member countries, e.g., diplomatic relations, humanitarian aid, etc. In the absence of other pertinent treaty provisions, the rights, privileges, and immunities of public international organizations in the United States are governed by the International Organizations Immunities Act (IOIA), 22 U.S.C. §§ 288 et seq., enacted by Congress in 1945. The legislative history of the IOIA indicates that it was passed to fill a then existing void in U.S. domestic law as to the legal status of international organizations operating in the United States. H. No. 1203, 79th Cong., 1st Sess. 2, 1945.

In investigating cases under this policy statement, the EOS should keep in mind that it is not the Commission's role to implement or enforce federal or international laws related to foreign affairs. This role belongs to the United States Department of State. Rather, the Commission's responsibility is to assure equality of employment opportunity in those situations where federal fair employment laws apply.

II. Public International Organizations and Title VII, ADEA, and EPA - Public international organizations located in the United States such as The World Bank, the Inter-American Development Bank, and the International Monetary Fund are generally not covered by Title VII, the ADEA, or the EPA because they are entitled to immunity granted to them under international law and United States domestic law. See International Organizations Immunities Act § 2a (b), 22 U.S.C. § 288a(b); Mendaro v. World Bank, 717 F.2d 610, 32 EPD § 33,820 (D.C. Cir. 1983); Broadbent v. OAS, 628 F.2d 27 (D.C. Cir. 1980).

The IOIA provides that the President of the United States will designate which organizations enjoy immunity from the legal process of the United States. That statute applies to an:

... organization in which the United States participates pursuant to any treaty or under the authority of any Act of Congress authorizing such participation or making an appropriation for such participation, and which shall have been designated by the President through appropriate Executive order as being entitled to enjoy the privileges, exemptions, and immunities provided in this subchapter. The President shall be authorized, in the light of the functions performed by any such international organization, by appropriate Executive order to withhold or withdraw from any such organization or its officers or employees any of the privileges, exemptions, and immunities or to condition or limit any such privilege, exemption, or immunity. The President shall be authorized, if in his judgment such action should be justified by reason of the abuse by an international organization or its officers and employees of the privileges, exemption, and immunities provided in this subchapter or for any other reason, at any time to revoke the designation of any international organization under this section....

22 U.S.C. § 288.

A multinational company is a private corporation that is organized and incorporated under the laws of one or more nations. By contrast, a public international organization is established by a multilateral treaty, an international agreement created by joint decree of several nations through governmental action.

Public international organizations, unlike private corporations, enjoy the status, immunities, exemptions, and privileges to contract, acquire property, or institute legal proceedings in the United States and yet are immune from suit unless that immunity is specifically waived by the organization or by order of the President of the United States. They enjoy this immunity because their activities from which all nations collectively benefit are designed to resolve international concerns crossing national boundaries. For instance, while multinational corporations may be required to conform their employment practices to reflect an individual nation's rules, regulations, or laws for a particular reason, this is not always true of a public international organization. These organizations are generally left to handle their own personnel matters while operating in the United States.

III. Investigating and Processing Title VII, ADEA, and EPA Cases - Cases raising the issue of the application of Title VII, the ADEA, or the EPA to a public international organization could present foreign policy concerns for the United States. Thus, the EOS should always handle these cases with the utmost care.

(1) What Should be Done When a Case Is Filed Against Public International Organization - An organization's privileges and immunities may preclude the Commission from asserting coverage over that organization. Therefore, whenever a public international organization is named as a respondent in a Title VII, ADEA, or EPA case the EOS should ask the Regional Attorney to determine whether the organization is immune from the administrative and/or judicial process of the U.S. If the Regional Attorney finds that the public international organization is included on the list of organizations entitled to immunity set out in the International Organizations Immunities Act, then the public international organization is immune from the legal process of this country unless that immunity has specifically been waived by the organization or by Presidential Executive order.

Example - Joe Carlson, a citizen of the United States, and Ben Dawson, a citizen of another country, both worked as economists for an international organization in Akron, Ohio. Both men claim that their boss fired them because of their race, Black. After following the administrative procedures at the international organization protesting their firing, both men filed timely Title VII charges alleging race discrimination by their employer. This organization's Charter says that the organization shall enjoy in the territory of each member country "all privileges and immunities as are necessary for Independent exercises of its function." The United States is a party to the treaty that exempts or immunizes the international organization from coverage of U.S. laws. The organization is listed in the IOIA and has not waived its immunity from coverage of U.S. law and no Presidential Executive order doing so has been issued. Consequently, the organization is not subject to Title VII, the ADEA, or the EPA.

See Mendaro v. World Bank, which is an example of the general principle that a public international organization is immune from suit and its member nations' domestic laws pursuant to a treaty.

In a few rare instances, a public international organization may specifically waive its immunity from suit. In order to determine if there is a specific waiver of immunity by the public international organization, the EOS should also ask the Regional Attorney to review the relevant sections of the organization's articles of agreement to determine whether there is any language that can be interpreted as a waiver of immunity from suit under the IOIA. If there is such language, then the EOS should contact the Guidance Division (see (2) below). However, if the Regional Attorney informs the EOS that there is no waiver of immunity contained in the organization§s articles of agreement, then the case against the public international organization should be dismissed.

In addition to having the Regional Attorney review the articles of agreement for a waiver of immunity, the EOS should also ask the Regional Attorney to examine the Presidential Executive order that grants immunity to the organization from the legal process of this country, to see whether there are any limits on the extent of the organization's immunity. If there are no limits placed upon the extent of immunity, then the EOS should assume that the public international organization is protected from the legal process of the United States. The case against the organization should therefore be dismissed.

(2) Contact with the State Department - Where an organization is not on the IOIA list or articles of agreement the EOS should contact the Guidance Division, Office of Legal Counsel. Guidance will then contact the State Department for a legal opinion on the legal status of the international organization, to see if it was recently added to the list.

Where there is some indication that an organization that is listed in the IOIA has a limited immunity, or where it is listed but has either waived its immunity through its articles of agreement or the organization has limited immunity under a Presidential Executive order, the EOS should also contact the Guidance Division. Guidance will contact the State Department for a legal opinion on the extent of the organization's immunity. The State Department's interpretation of the immunity provisions will apply. If the State Department finds that the relevant laws governing public international organizations apply, then the Commission will defer to this advice and instruct the field office to dismiss the case. If the State Department advises the Commission that coverage does exist under the treaty, then the Commission will rely on this legal opinion and instruct the field to process the case. However, if there is reason to believe that the State Department objects to the Commission's processing of the case on other than strictly legal grounds, the Guidance Division will obtain instructions from the Commission on how to proceed with the case.

(3) Other Foreign Policy Considerations - In other situations where foreign policy concerns are raised as a defense, the EOS should always contact the Guidance Division, which will in turn generally consult with the State Department.