Using a testing method to provide evidence of discrimination

Overview

Tactical Aim: 
Country or Region: 
Organization: 
the Legal Defense Bureau for National and Ethnic Minorities (NEKI)

When abuses are hidden, or accepted by members of society, it can be difficult for victims to prove that a human rights violation has taken place. A group in Hungary uses a testing method to provide evidence of discrimination and bring legal cases on behalf of victims.

Adapting a method used by United States organizations on housing discrimination, the Legal Defense Bureau for National and Ethnic Minorities (NEKI) uses a method of testing to collect evidence when there is an allegation of discrimination. The Hungarian court first recognized testing as a valid technique for documenting discrimination in a case in 2000.

The Roma form minority groups in several countries in Europe. They have been frequent targets of hate crimes and are often blamed for the increase of crime and unemployment in Hungary. Forms of discrimination faced by the Roma today include the inability to receive employment, housing and services in public accommodations. Since discrimination is often subtly carried out, direct evidence is rare.

NEKI uses testing to prove discrimination and obtain this direct evidence. The group identifies and trains people who are sent out as testers to replicate the actions of those who claim to have experienced discrimination. Each tester must be a reliable and objective observer and his or her profile must match that of the person who experienced discrimination as much as possible. In selecting testers, NEKI also evaluates whether each individual would make a credible witness during legal cases. Since litigation may last several years, testers must also be willing to stay in contact with the program for an extended period of time.

When NEKI receives a complaint, staff members assess the case and, if they decide to pursue it, send testers to the alleged place of discrimination. If the allegation concerns employment, for example, testing involves sending out a Roma and a non-Roma person with similar characteristics and qualifications, with ethnicity being their only major difference. They are sent out at closely spaced intervals on the same day to apply for a job and the testers take comparable actions in order to make the comparisons clear.

Testers record their experiences on assignment forms immediately after the test, detailing questions asked at the interview, treatment of the applicant and the manner in which the job was described, e.g. salaries and benefits. The test coordinator (the organization or the attorney) then evaluates whether or not differential treatment has taken place. This information is often used to support victims in legal cases.

As of 2002, NEKI had used the testing tactic fifteen times. In three cases, it was not possible to complete the test. Of the twelve completed tests, five did not produce evidence of systematic discrimination. The remaining seven tests, however, were convincing demonstrations of discrimination and sufficient to justify legal action.

Adapted from work by U.S. organizations, the tactic is clearly a flexible one and other groups in the region have approached NEKI to learn about replicating their methods for human rights issues such as disability rights. Testing could also be used to look at the hiring practices of a range of institutions, including police departments or businesses.

For more information about this tactic, see the in-depth case study.

New Tactics in Human Rights does not advocate for or endorse specific tactics, policies or issues.

What we can learn from this tactic: 

When using testing methods such as this, attention to detail is important. The key to this kind of tactic is to replicate the characteristics and qualifications of the victim as closely as possible to determine whether discrimination has taken place, and to enhance the validity of the findings so they are not called into question. For example, if the victim was a man of a specific ethnic background, it would be counter-productive to use a woman of the same ethnic background, as her gender would introduce an additional factor that could influence discrimination.