Testing for Discrimination: Identifying and Prosecuting Human Rights Abuses (English)

8/9/2019 Testing for Discrimination: Identifying and Prosecuting Human Rights Abuses (English)

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By Bea BodrogiEdited by Liam Mahony

A Tactical Notebook Published bythe New Tactics Project

of the Center for Victims of Torture

Testing for Discrimination:Identifying and Prosecuting Human Rights Abuses


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Table of ContentsEditors Preface..................................................... 6Introduction.......................................................... 7Grafting the Tool From U.S. Experience ............. 7

The Situation of Roma Living in Hungary........... 8The Testing Tactic................................................. 9Example: The Lajos Balogh Case ....................... 12Results ................................................................. 13Applying the Tactic for Legal Cases .................. 14Using the Testing Tactic in Other Ways ............ 15Conclusion .......................................................... 16

The Center for Victims of TortureNew Tactics in Human RightsProject 717 East River Road

Minneapolis, MN [email protected]

www.newtactics.org


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April 2003

Dear Friend,

Welcome to the New Tactics in Human Rights Tactical Notebook Series! In each notebook a humanrights practitioner describes a tactical innovation that was successful in advancing human rights. Theauthors are part of the broad and diverse human rights movement, including educators, librarians,health care workers, law enforcement personnel, and womens rights advocates. They havedeveloped tactics that not only have contributed to human rights in their home countries. Inaddition, they have utilized tactics that when adapted can be applied in other countries and othersituations to address a variety of issues.

Each notebook contains detailed information on howthe author and his or her organizationachieved what they did. We want to inspire human rights practitioners to think tacticallyto reflecton the tactics they have chosen to implement their larger strategy and to broaden the realm of

tactics considered to effectively advance human rights.

In this notebook, the author demonstrates that effective tactics can be transferred and adapted toother situations and other countries. The Legal Defense Bureau for National and Ethnic Minorities(NEKI) in Hungary learned about a testing tactic from a U.S. group that had successfully provedinstances of housing discrimination by sending in testers of different races to apply forapartments. Similar discrimination was also occurring in Hungary against the Roma population inhousing, employment, access to public spaces and public services and other areas. NEKI adapted thetactic of testing to fit into its strategy of using lawsuits to challenge human rights violations. Notonly did this tactic prove to be as applicable in Hungary as in the United States, it also provedeffective in situations other than housing discrimination.

The entire Tactical Notebook Series will be available online at www.newtactics.org. Additional

notebooks will continue to be added over time. On our web site you will also find other tools,including a searchable database of tactics, a discussion forum for human rights practitioners, andinformation about our workshops and symposium. To subscribe to the New Tactics e-newsletter,please send an e-mail to [email protected].

The New Tactics in Human Rights Project is an international initiative led by a diverse group oforganizations and practitioners from around the world. The project is coordinated by the Center forVictims of Torture (CVT) and grew out of our experience as a creator of new tactics and a treatmentcenter that also advocates for the protection of human rights from a unique positionone ofhealing and reclaiming civic leadership.We hope that you will find these notebooks informational and thought provoking.

Sincerely,

Kate Kelsch

New Tactics Project Manager


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Proving Human Right Abuses With Testing_____________________________________5

Bea Bodrogi

Bea Bodrogi has been working as a lawyer dealing with human rights cases for six years. Shereceived her LLM from the London School of Economics, where she focused on the internationalprotection of human rights, legal regulation of discrimination and alternative dispute resolution.Bea is working as an advocate for the Legal Defence Bureau for National and Ethnic Minorities

(NEKI), conducting cases on ethnic discrimination engaging in fact-finding missions and writinghuman rights reports (White Booklets 1996-2002). She has also worked on cases submitted to theEuropean Court of Human Rights, and teaches and publishes widely on discrimination issues.Besides working for NEKI, Bea gives lectures on alternative dispute resolution to lawyers in theFaculty of Law in Debrecen. She is also involved in the work of the Helsinki Committee and theHatter Support Society for Gays and Lesbians in Hungary.

Legal Defence Bureau

for National and Ethnic Minorities (NEKI)

NEKI aims to protect national and ethnic minorities living in Hungary. The organization provideslegal assistance in cases of discrimination based on the ethnic or national origin of the victim, or incases of significance to the implementation of the rule of law. NEKIs annual report, called the

White Booklet, describes some of its most significant cases.

Contact Information

Legal Defense Bureau for National and Ethnic Minorities (NEKI)MASSAG FoundationH1537 Budapest 114, P.O. Box 453/269, Hungary


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6_____________________________________Proving Human Right Abuses With Testing

Editors Preface

This tactical notebook focuses on thesuccessful transplanting to Hungary oftesting, a tactic developed in the anti-discrimination movement in the UnitedStates. In testing, an advocacy organizationthat has received a complaint of an incidentof discrimination, immediately sends outtesters to replicate the incident. If a person,for instance, is denied a job based on theiridentity, testers are sent out immediately toapply for the same job and document theirtreatment. This documentation will belegitimate evidence of the systematic natureof the discrimination.

Organizations struggling for fair housing inthe United States developed this tactic toconfront discriminatory home-selling, lendingand renting practices. The Legal DefenseBureau for National and Ethnic Minorities inBudapest has adapted it to defend the rightsof Roma people, who are systematicallydenied everything from jobs to access torestaurants, clubs or other public places.

Wherever there is discrimination againstminorities whether in housing, employmentor public access, advocates often face adifficult challenge proving it in court. A singleevent can be explained away as a mistake,or individual error, and is frequently

justified by the creation of numerous othercontext-specific reasons for the action.Advocates confronting this often must provenot only that a discriminatory act occurred,but that the motive behind the action wasdiscriminatory, and that the discrimination isof a systematic nature. Testing is a tactic thatfulfills this need, facilitating litigation even inlegal settings that do not encourage anti-discrimination cases.

This notebook not only shows the utility ofthis tactic, but also demonstrates by examplehow tactics can be adapted from verydifferent circumstances and used effectively

in the struggle for human rights elsewhere inthe world.

Liam Mahony, notebook series editor


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Proving Human Rights Abuses With Testing ___________________________________7

Introduction

The Legal Defence Bureau for National andEthnic Minorities (NEKI) was founded in 1994 inresponse to problems caused by longstandingprejudices against the Roma, the largest ethnic

minority in Hungary. NEKI seeks to documentthe experience of discrimination anddemonstrate the absence of legal protectionfor the Roma. The organization has beeninvolved with cases including police brutality,skinhead attacks, and the denial ofemployment, housing and service in publicaccommodation. Since discrimination is oftensubtle, direct evidence is rare. Adapting amethod used by U.S. organisations, NEKI usestesting to collect evidence with which tochallenge discrimination in court. After anincident of discrimination is reported to NEKIby a Roma victim, testers both Roma and non-Roma are sent to repeat the experience inorder to document whether the incidentrepresents a case of systematic discrimination,and to collect evidence for a possible courtcase.

Testing is thus an evidence-gathering tacticthat can fit directly into the legal strategy of an

organization like NEKI, one confronting theimpunity and public apathy about theprevalent problem of racism anddiscrimination.

The process is quite straightforward: Once NEKI

receives a complaint, testers are sent to theplace of the alleged discrimination. If theallegation concerns employment, for instance,testing is done by sending out a Roma and anon-Roma person who have similarcharacteristics and qualifications but differprimarily in their ethnicity. They are sent out atclosely spaced intervals on the same day toapply for a job. To make the comparison clear,each tester is asked to take actions comparableto those of his fellow testers. Immediately aftercompleting the test they record theirexperiences on a questionnaire detailing all thequestions asked at the interview, treatment ofthe applicant, and the description of the job,including salaries and benefits. The testcoordinator can then evaluate from this datawhether differential treatment has taken placeand decide if legal action can be initiated onthe grounds of discrimination.

Grafting the Tool FromU.S. Anti-discrimination

Experience

In 1997 a NEKI colleague spent a year in theUnited States studying and gathering practicalexperience in human rights. During this periodhe worked in Washington D.C. at the FairHousing Council11, which uses testing to collectevidence of housing discrimination. The counciltests the practices of real estate agencies andlandlords who refuse to rent flats or sell houses

to African Americans and other minorities. Ourcolleague returned with a great deal ofmaterial describing this process. Our challengewas to adapt it to our situation.

1 The Fair Housing Council of Greater Washington: 1212New York Avenue, N.W., Suite 500, Washington, D.C. 20005

We quickly realized that this was exactly whatwe were looking for and began constructingour own testing process adapted to the needsin Hungary. The situation of the Roma is verydifferent from that of minorities in the UnitedStates. In Hungary, for instance, it would notbe as useful to collect evidence of housingdiscrimination because Roma live under suchpoor conditions that they are seldom in aposition to rent much less buy houses or flats.We could, however, apply testing in cases ofdiscrimination in labor affairs and in publicservices. Since no law prohibits the use of

testing, we could see no obstacles in trying toapply it.


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8_____________________________________Proving Human Right Abuses With Testing

The Situation of

Roma Living in Hungary

NEKI receives more than 100 complaints a year,most of them concerning Roma people whoface discrimination in all spheres of their

everyday life. As the most vulnerable minorityand social group of the country, Roma areoverrepresented in all societal groups in needof protection: the poor, the long-termunemployed, the unskilled, the uneducated,members of large families. In most regions ofthe country, they still live on the outskirts oftown, some in settlements segregated from themajority non-Roma population. With fewexceptions, Roma people have sufferedsetbacks from the social and economic changesof the past ten years. During transitions, theyare always the first to be fired, and due to their

lack of education they seldom have access tonew jobs. In the countryside theunemployment rate among Roma is almost 100percent. Only in big cities can one find someemployed Roma, and these are usuallyemployed illegally.

Since the early 1990s, Roma communities haveoften been targets of hate crimes. Skinheadattacks against Roma were, at times, reportedevery week. The forms of prejudice against thisminority group have, however, changed sincethis period. Instead of open attacks, hidden

forms of discrimination are now widespread.

An employer would never say that he does notemploy Roma; he would say instead that thereare no more vacancies. A bartender would notadmit that he is refusing to provide service onthe ground of ethnic origin; he would argueinstead that there is a full house.

Because of this subtlety, and due to theinadequate legal regulation of discrimination,lawyers litigating human rights cases face greatdifficulty gathering evidence and provingdiscrimination. In addition, Hungarian lawconcerning cases of discrimination is very weak.According to a recent European UnionDirective concerning race discrimination , forexample, if it may be presumed that there hasbeen direct or indirect discrimination, thedefendant must prove that there has been nobreach of the principle of equal treatment. ButHungary does not comply with thisrequirement despite the criticisms of severalhuman rights reports. Thus, when litigatingdiscrimination cases, we must choose the classicmethod of putting forward evidence, i.e. anapplicant must prove that they suffereddiscrimination. This is not always easy to prove,and each complainants case will of course bestronger if the lawyer has a variety of types ofevidence to demonstrate the discrimination.The use of testing provides us with oneadditional tactic to collect evidence for suchcases, evidence that has been crucial to oursuccess in winning discrimination cases.

The Testing Tactic

To implement the testing tactic a number ofsteps must be taken:

! Recruiting and selecting the testers! Training the testers! Carrying out the testing! Evaluating the results of the testing to

decide whether or not they showdiscrimination and whether theorganization will take the case

! Using the evidence in court

Each of these steps will be described in greaterdetail.

Recruiting and Selecting Testers

RecruitmentWhen we decided to apply the method inHungary, our first task was to gather potential

testers. We needed a list of testers from whomthe test coordinator could choose adequatepairs, namely a Roma and a non-Roma testerfor each concrete case. Sometimes we use twopairs of testers to follow up on a single incident(see the Lalos Balogh example below). Eachtime we used testers, we needed to be able tochoose comparable persons with similar


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Proving Human Rights Abuses With Testing ___________________________________9

characteristics and qualifications. We needed agood pool from which to draw.

To find potential testers we relied primarily onour pre-existing network students, personalcontacts, journalists and researchers. Students

proved to have flexible schedules and weregenerally open to new ideas. Some journalists,however, were too excited and eagerlywanted results that could be immediatelyreported in the newspapers. Althoughreporting results is an important part of thetesting procedure, the right timing for suchpublicity has to be carefully chosen accordingto the needs of the case rather than journalisticcriteria. In most human rights cases, we preferto wait for the legal procedure to begin beforelaunching any publicity because most evidenceis gathered by this time and there is less risk ofany false accusation.

Relying on our personal contacts has raisedsome problems. In a recent case, a friend of theNEKI test co-coordinator was the least reliabletester. The co-coordinator organized thetesting of a bar in Budapest where Roma arenot allowed to enter. A few minutes before thetesting started the friend tester cancelled,saying that something came up and that hecould not appear. The testing had to becancelled and seven people had to be senthome. The test co-coordinator supposed thather friend thought that he could allow

himself to cancel the testing at the last minuteeven for unacceptable reasons. In addition,friend testers give testimonies in court,defendants might argue that such testimony isbiased and should not be taken into account.This problem has not yet come up in any courtcases, but it is better not to provide any reasonfor objections.

We have not yet needed to develop anymethodical recruitment procedures as we haveinformally been able to find enough testerswhen we needed them. Our recent public

presentations about NEKIs work and thetesting tactic have become recruitmentopportunities, with people approaching us andvolunteering to help. We have decided not torecruit testers through job advertisements, as isdone in the United States; the Roma issue is soheated in Hungary that there would be a highrisk that provocateurs would apply.

Selection CriteriaThe role of the tester is crucial, and thefollowing requirements must be met byparticipating individuals.

! No criminal record: First and foremost,the testers backgrounds must be clean.Testers might be asked to appearbefore the court as witnesses, and acriminal record can reduce theircredibility.

! Objectivity: The tester cannot have anyvested interest in the results of thetesting, nor any relationship with eitherthe complainant or defendant.

! Reliability: Since litigation may lastseveral years, they must be willing tostay in contact with the testingprogram for an extended period of

time. We are able to get a subjectivesense of peoples reliability during theirfull-day training. We also make sure totell them up front that if we goforward with the case we will bedepending on their availability totestify, even if the case takes years toget to court.

! Preciseness: They must be goodobservers, capable of noticing anyrelevant aspects of their treatmentduring the testing experience and laterrecalling and clearly documenting the

details of the experience. This is not aneasy skill to measure in advance, butafter one experience of testing thecoordinator can judge it.

In addition to the technical criteria, testers alsoneed to consider whether they are emotionallyprepared for this task, which may beunpleasant or even frightening. (see below:Testers Concerns and Experiences).

Training of the Testers

NEKI provides two stages of training for thetesters. After recruiting potential testers we doa full-day training as a group. Then, when atesting situation arises in response to acomplaint, we conduct a preparation sessionfor the particular case including only thosetesters who will be participating.


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10 ___________________________________Proving Human Right Abuses With Testing

Full-Day Orientation TrainingThe first training is a one-day orientation tointroduce potential testers to the method. Thisis not only important preparation, but gives thetesters a chance to decide if this is a task theyfeel capable of performing and allows our

testing coordinator to judge if the candidatesmeet our selection criteria. Our first traininginvolved 15 to 20 people and yielded our initialpool of testers. After a second training we hada pool of 30. From this pool we havemaintained a solid core of six to ten testers,sufficient for our testing needs.

During this training session testers areintroduced to NEKI, to our work, and to thekind of cases in which testing can be used. Wepresent a translated version of a videotape thatdescribes the testing method used by the FairHousing Council in Washington.

Testers then learn the entire testing procedureon a step-by-step basis, including a carefulexamination of the questionnaire they will beasked to complete after each test (seeAppendix 1, Sample Questionnaire). Testersalso have a chance to learn about the legalprocedure that can be initiated on the groundsof the testing results, and how testing can beused to enforce civil rights. We have found thatthe most useful part of the training has beenthe detailed question-and-answer session.

Testers need to clearly understand their role inboth the testing and the subsequent legalprocedures. If NEKI initiates legal procedureson the grounds of testing results, testers will beexpected to give testimony in court. While wecannot work with testers on their testimony,we make certain that they are informed aboutevery detail of the court procedure, includingthe length of the procedure and the questionsthey might be expected to face. In a recent casea tester announced that he did not want to goto the court more than once because he didnot have time, and he did not want to meet

with the defendant at the trial. It was clearthat we had not provided him with enoughinformation about the legal procedure. Wepersuaded him to attend the trial, but thesituation was risky. We now pay moreattention to preparing potential testers.

Case-specific Training for TestersWhen NEKI receives a specific complaint, asecond training is held for testers who will besent to the place of alleged discrimination. Thispreparation is crucial as testers need tounderstand the specifics of the particular

situation. They benefit as well from a reminderof the basic principles presented at the initialtraining session.

The test coordinator meets with the pairs oftesters (Roma and non-Roma), introduces themto the allegation NEKI is investigating andprovides them with information they need toknow in advance (address of the site,telephone number, names). With the help ofthe coordinator, the testers read through thequestionnaire and prepare for the specific task.Depending on the complaint, there are specifickinds of information we want testers to obtain.For instance, in cases when Roma are not letinto a bar or restaurant, testers must find outthe reason for the refusal. In several cases, thesecurity guard openly told both thecomplainant and then the testers that theestablishment does not allow Roma becausethey cause problems. Testing provides morewitnesses to discrimination such as this, makingit easier to demonstrate in court thatdiscrimination took place.

The Contract

The job of the testers is laid down in a contractsigned by both the tester and NEKI. In thiscontract, the tester agrees to the following:

! The tester will carry out the testing inthe given place.

! Within 20 minutes of the testing thetester will complete the questionnaire.

! During the testing the tester willbehave in a normal manner and shouldnot express his/her opinion. Whenfilling in the questionnaire the testerwill describe the situation in detail.

! In the event that before, during orafter the testing something unexpectedhappens, the tester will immediatelycontact the test coordinator.

! In case of a legal procedure, the testerwill appear before the authorities andtestify about his/her experiences.


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! The tester will not reveal the result ofthe testing to third parties. Before andafter the testing the tester will not giveinformation about the testing to thirdparties without permission of NEKI.

! The tester must follow the instructionof the test coordinator.

! In the same contract, NEKI agrees tothe following:

! NEKI will provide legal help to thetester if it is needed in relation to thetesting.

! NEKI will not reveal any information tothird parties about the testers withouthis/her permission.

! Testing fee: After the testing NEKI willpay 5,000 HUF to the tester. In case of acourt procedure, NEKI will pay 5,000

HUF per day to compensate the testerfor lost work time.

Testers Concerns and Experiences

Being a tester is not easy, nor is it alwaysgratifying. For instance, B. Berkes, one of ourtesters, spoke about her experience testing at apopular pub in Budapest in August 2002:

"Even if I was prepared for the rejection, thefeeling I had at the entrance was morehumiliating than I expected. All the time I was

thinking of the situation being here with myboth Roma and non-Roma friends. I do notknow how I would have behaved in the realsituation."

It is not uncommon for testers to have verymixed feelings about the experience especially the Roma testers. In a sense,participating in testing is choosing deliberatelyto walk into a situation where people willhumiliate you. Roma people, and members ofany minority facing discrimination, repeatedlyface this humiliation and dont need more of it.

Every instance of humiliation is personallydamaging, even if it is entered into for a goodreason. But while testers may not like to doit, they do report a sense of gratification whenthe testing is successful when they feel NEKIhas obtained the evidence it needs to advocatefor the complainant.

Similar concerns arise in the testerspreparation sessions: What if I get insulted,

harassed, assaulted? What if I hear racistcomments? NEKI staff members alwaysemphasize that the test is not as important asthe individual, and encourage testers to carefor their own safety and emotional health.Testers are urged to respond passively to

harassment, and to leave as soon as they feelvulnerable. They are cautioned not to getinvolved in a quarrel or heated discussions thatmight lead to violence. They are advised to usetheir judgment to determine the best solutionin a given situation.

Another common concern arises from theeventual need for testers to testify in court.Because most people have no experience withthe court, many feel intimidated by the courtsystem, especially if they are a member of aminority that also faces unequal treatmentfrom the legal system.

Despite these concerns, people continue toparticipate in the testing. They feel positiveabout contributing to the advocacy process,and report encouraging courtroomexperiences. One tester a law student in thefinal year of law school chose to come andwork with NEKI as an intern.

Carrying Out Testing

Once NEKI receives a complaint, we decidewhether to initiate testing. The majority of

complaints are not judged to be incidents ofdiscrimination. For those cases that dorepresent valid discrimination complaints,(about 30 per year), we first collect all possibledata on the situation. This fact-finding itselfcan sometimes have a positive impact. We maywrite a letter to local authorities or to theowners of an offending company, and theymay be willing to make changes withoutfurther legal steps.

When we believe testing will help gatherevidence for a potential litigation, the decision

to test must usually be made very quickly. In acase, for instance, when someone has beendenied a job, testing will only work if we cansend in potential applicants while that job isstill available, since it is essential that theyapply for the same job under the samecircumstances in order for their experience tobe considered legally relevant to theexperience of the original complainant. So,


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once we decide to implement a test, we quicklychoose testers, train them and plan the test.

Testers are then sent to the place of thealleged discrimination. They record theirexperiences on a questionnaire immediately

after completing the test, reporting all detailsof their treatment. The test coordinator canthen evaluate from this data whetherdiscriminatory treatment has taken place, anddecide if legal action can be initiated.

The Procedure Involved

in Carrying Out Testing:

! Collect data, and decide on the utilityof using testing on the specific case

! Choose the pair of testers (Roma andnon-Roma)

! Conduct the case-specific training withthese testers

! Sign the contract with the testers!

Send out the testers! Have the testers return to the office

and fill in the questionnaires

! Evaluate the data resulting from thetests

Example:

The Lajos Balogh Case

Perhaps the best way to understand the use oftesting is to walk through a specific example ofits use.

Despite the fact that there has been no finaljudgement yet in any employmentdiscrimination cases in Hungary, the case ofLajos Balogh is worth examining in detail. The

results of the testing were unambiguous, andthe case illuminates every step of the testingprocedure. The case was also importantbecause the Labour Code is the only law inHungary with adequate anti-discriminationprovisions. Since these provisions had neverbeen invoked before this case, we found itimportant to play a role in interpreting andapplying them.

The Complaint

Lajos Balogh interrupted his college education

because of financial hardships and searched foremployment. In February 1999, after reading ajob advertisement in a newspaper, he appliedfor a job via telephone. The T. Company waslooking for people to disseminate leaflets. Theoperator told the applicant that there werevacancies and invited him in for a personalinterview. Once in the office, he was asked to

fill out a form detailing his personalinformation. In response to their query, he saidhe had performed similar work before. He wasasked no further questions and told to call backtwo days later. Mr. Balogh went to the office inperson, and alleges that he saw his applicationform with the word "gypsy" written across it inblock letters. He was told nothing concrete, butsimply instructed to call back again in anothertwo days. He was repeatedly asked to call back,but in the end was told there were no more

vacancies.

Mr. Balogh approached NEKI immediately,alleging that he had not been hired for the jobbecause of his Roma origin and that hisallegation was supported by the writing on theform. The form was not returned to him, butwas thrown away in his presence. To prove thistypical case of discrimination we decided totest the process of recruitment.

The Testing Steps

Preparing the testers

The test coordinator chose two pairs of testerswith characteristics similar to those of theoriginal Roma complainant. All were studentsand in need of income. Before sending themout, the coordinator invited them to the officeand provided them with the informationneeded to carry out the testing. The testerswere told the original complainants story, and


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given precise instructions with the help of thequestionnaire, which they would completeafter the testing. They were also informedabout the possibility of a court hearing, andtold that they might be invited to givetestimonies concerning their experiences.

We have a general questionnaire applicable toa variety of cases, and amend it for eachspecific case. It is important for testers to knowin advance what details they need to payattention to, what kind of questions mightcome up at the interview and especially thequestions we are particularly interested inobtaining answers to.

The testers experienceThe first two testers applied for the job onApril 29, 1999, closely repeating the behaviorof the initial complainant. The Roma testercalled in to the firm followed by the non-Romatester half an hour later. Then they went toinquire in person. Both filled in the applicationform and were told to call back later. The otherpair of testers applied several days later. Allfour applicants called the company anddiscovered that the two non-Roma testers hadbeen recruited whereas the two Roma testershad not.

The recruited testers signed the contract andwere given leaflets to distribute. To furtherascertain the discrimination, we asked the

testers not to carry out the job but to returnthe leaflets saying that the work was tootroublesome. That day we sent in anotherRoma tester, knowing that there was certainlywork to be done. He also filled in the form andhe too was later turned down by the companyby telephone. The firm had by this point

refused to hire four Roma for a job thatrequired neither professional skills nor a highlevel of education.

Evaluating the questionnaires and follow-upThe testers returned after each test and filled

out the questionnaire, detailing theirexperiences. In every case, NEKI must analyzethis information and decide whether it offersclear evidence of discrimination. If we cannotfind enough evidence we must inform thecomplainant that we cannot proceed with acase. But if the results of the testing dodemonstrate discrimination, we can initiatelegal action.

In the Lalos Balogh case, testing results werequite consistent and provided useful evidence.On behalf of the original complainant, NEKIfiled a lawsuit against the company, invokingSection 5 of the Labour Code. The plaintiff isthe original complainant whose basic humanrights have been violated, and the five testerscan testify about the discriminatory practices ofthe companys recruitment process. On thesurface, the case does not seem verycomplicated. There is strong evidence thatcould prove discrimination, testers are ready togive objective testimonies concerning theirexperiences, and a well-known human rightslawyer represents the plaintiff whereas thecompany is without legal representation.Nevertheless, it took three years for the court

simply to determine whether the case fallsunder its jurisdiction. The trial on the merits ofthe case has not even begun. The final

judgement is thus still very far away, so wecannot predict either the outcome of theprocedure or the reaction of the judge to theresults of the testing.

Results

To date, NEKI has sent testers out 15 times. Inthree cases it was not possible to complete thetest, for a variety of reasons. Of the 12completed tests, five did not produce evidenceof systematic discrimination. The remainingseven tests were convincing demonstrations ofdiscrimination sufficient to justify litigation. Ofthese seven, NEKI has initiated six anti-

discrimination suits. Three of these suits are stillpending.

Of the three completed cases using testing, wewon two and lost one. Testers appeared incourt each time, and their evidence wasaccepted by the judge without dispute orquestioning. In the two successful litigations,the judge accepted the testing data as proof ofdiscrimination. NEKI believes that the data wasa crucial element in these victories. In the third


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case, the judge concluded that the testingevidence, though not invalid, did notsufficiently prove that the complainant hadexperienced discrimination.

NEKI is the only law firm in Hungary using this

tactic. Other human rights lawyers have,however, referred cases to NEKI when they feltthat testing would be essential in the gatheringof evidence.

Using Testing for

Out-of-Court Negotiation

In one case where testing demonstrateddiscrimination, NEKI did not initiate legalproceedings. Instead, we approached thedefendant about negotiating a much quickerout-of-court settlement. We described both thecomplainants case and the testing data to the

defendant, whose lawyer recognized thestrength of our case. NEKI had already woncourt cases using testing evidence. Thedefendant wanted to avoid the court, and NEKIand the complainant were interested in a

speedier solution. The parties were able tonegotiate an agreement in less than threemonths. In the final settlement the defendantpublicly apologized, fired the abusiveemployees and paid compensation to thevictims a compensation five times higher than

any won in similar cases in court.

In a more recent case, complainants allegeddiscrimination in access to a very well-knownclub in Budapest. Because the incident involveda number of witnesses, testing was notnecessary. NEKI approached the owner topropose a negotiation. Although the ownerexpressed some openness to this, he wanted todebate the merits of the case. NEKI, however,will not negotiate on the facts of the case onwhether discrimination took place but onlyon the settlement. So in this case, negotiationwas ended and the case will be taken to court.

NEKI expects that testing may prove more andmore useful in cases that will be possible tonegotiate without litigation.

Applying the Tactic for Legal

Cases: Important Issues to

ConsiderAccording to our experiences, without the helpof an organization with time, resources andlegal skills it would be impossible to litigatediscrimination cases in Hungary. This is a clearsign that Hungarian discrimination law is noteffective and does not serve the interest of thevictims of human rights violations. If you face asimilar situation in your country, wherediscrimination is prevalent and victims andtheir lawyers have a difficult time proving it incourt, you might consider augmenting yourefforts with the testing tactic described here.We hope that the description of our efforts willgive you some clear ideas of steps to take andpitfalls to miss, especially in terms of theselection, training and use of testers. We alsosuggest that you consider some additionalquestions and lessons that we have derivedfrom our experience.

Discrimination laws: The use of testing for legalpurposes will of course have to conform to thespecifics of national laws on discrimination. Tothe extent that a state also recognizes the

jurisdiction of international law, this can alsobe a basis for legal action on discrimination.Whatever the legal framework, a caseattempting to prove discrimination usuallyneeds evidence showing that an incident wasnot a single episode, but rather an example ofsystematic discriminatory behavior. The testingmethod can be a powerful method ofgenerating such evidence.

Resources: The testing method NEKI hasdeveloped to provide evidence ofdiscrimination is costly in both time and money.

It demands an organizational setting with awell-equipped office, a well-trained testingcoordinator and trained testers. In order to usethe results of testing in litigation, theseinvestments must be further backed up byprofessional lawyers who are willing to takediscrimination cases through the court system.


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Who is to be the plaintiff?: In a case wheretesting reveals discrimination, both the originalcomplainant and the testers will have suffereda violation. Although testers might also gothrough humiliating treatment during testing,their intention is different from that of the

initial applicant. In employment discriminationcases, testers are not in need of the job, andthey are employed by NEKI only to test thepractice of the recruitment. Consequently,there is no legal ground to involve them in theprocedure as plaintiffs. NEKI thus initiates legalprocedures only on behalf of the originalcomplainant, and uses the testimonies of thetesters when putting forward evidence.

The situation in public accommodation cases isdifferent. In a few instances NEKI has litigatedcases on behalf of both the originalcomplainant and the testers. The intention ofthe testers here does not differ greatly fromthat of the original complainant, and testersare telling the truth about simply wanting toenter a public place. In a recent case, the Romatesters asked NEKI to use them as plaintiffsbecause they felt humiliated when theywanted to enter the place and were openly

refused because of their Roma origin. This civilsuit is under preparation and the reaction ofthe court to the legal position of the testerscannot yet be judged.

Types of cases: We have had positive

experiences using the tool to confrontdiscrimination in employment, housing andpublic accommodation. The courts acceptanceof testimonies from testers can be interpretedto mean that testing itself is now considered alegally acceptable method of demonstratingdiscrimination.

Classes of victims: NEKI deals with racediscrimination cases that primarily concernRoma people living in Hungary. There is alsomuch discrimination on other grounds, such assex, age, race, language, religion and politicalopinion. Legal protection is needed in all suchcases. If the testing method works in cases ofrace discrimination, it should also work in theseother types of cases. Within Hungary, as testingresults and the subsequent court proceduresare reported in the media, it is likely that otherhuman rights organizations will try out themethod in their own cases.

Using the Testing Tactic

in Other Ways

Testing may also be a useful tactic forgathering evidence for lobbying or publiceducation. Hungary, for instance, is consideringnew anti-discrimination legislation, and allowsNGOs to officially comment as part of thisprocess. NEKIs comments included theargument that the necessity of testing is itself ademonstration of the weakness of current anti-discrimination laws. NEKI produces an annualpublic report outlining its work, cases and theresults of its testing experiences. For somecases, usually in the later stages of litigation,NEKI also reports testing evidence to themedia. This publicity contributes to publiceducation about the need to eliminatediscrimination.

We have learned a great deal through ourexperiences with testing. We are certain thatthere are many more places in Hungary wherediscriminatory practices are taking place. Andyet, compared to the extent of the realproblem, only a few people seek help fromNEKI. While NEKI uses testing when it receivesa complaint alleging discrimination, it is surelya tactic that could also be used for otherpurposes:

! Testing could be used proactively todemonstrate and publicizediscriminatory practices in an industryor company. A broader application ofthe tactic, for instance, might involvecarrying out testing without an originalcomplaint in order to identify whetheran industry systematically discriminatesagainst people on the basis ofnationality, race, gender, or disability(such as HIV/AIDS). The result of these


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tests might then be used to lobby forchanges in practices either throughsubsequent litigation or publiceducation.

! Testing could also be used to exposeracist attitudes in particular branches of

government. A Russian colleague, forexample, suggested that in hishometown they might have peoplefrom the Caucasus apply to the policeacademy to test hiring practices.

! Testing could also be carried out in alarger form to validate the existence of

discrimination in an area and pressureorganizations not to use such practices.A series of tests might be run to see ifpeople of different races are treateddifferently in situations whereharassment or discrimination occur

frequently, such as walking or drivingin certain places. The tactic would haveto be adapted to the situation, withtesting perhaps extended over severalweeks.

Conclusion

The situation in Hungary is not unique.Discrimination takes many forms, and isprevalent in most societies in the world. It issuch a widespread problem, in fact, that manycountries perhaps most have some legalframework for confronting this abuse of rights,which is not tolerated under internationalhuman rights law. The testing method takesadvantage of such legal frameworks, but alsorecognizes that national anti-discriminationlaws are nearly always insufficiently designedto protect the victim (in fact sometimes law

implicitly protects the perpetrators of abuse bymaking litigation difficult). Where laws exist

they frequently are not enforced, and often

the burden of proof is a nearly impossiblechallenge to meet.

We believe that the testing tool can bring usone small but important step closer to meetingthat challenge. With expanded use, it willpromote and encourage more litigation againstdiscrimination. This litigation, and the publiceducational value of the testing results in andof themselves, will contribute to raising publicconsciousness against discrimination eventually bringing us closer to a culture ofrespect for human rights. The testing tool has

helped us in Hungary. We hope you will find ituseful in your own work.


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Notes


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Notes


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For a full list of publications available in the Tactical Notebook Series,

go to www.newtactics.org.Online you will also find a searchable database of tactics and

forums for discussion with other human rights practitioners.

The Center for Victims of TortureNew Tactics in Human Rights Project

717 East River RoadMinneapolis, MN 55455

[email protected]

Testing for Discrimination: Identifying and Prosecuting Human Rights Abuses (English)

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Transcript of Testing for Discrimination: Identifying and Prosecuting Human Rights Abuses (English)