Using testing to prove discrimination and obtain direct evidence

The Hungarian Legal Defense Bureau for National and Ethnic Minorities (NEKI) uses testing, in which trained volunteers of different ethnicities or identities are sent to apply for jobs or housing, to collect evidence when there is an allegation of discrimination.

In Hungary, the Roma people face significant discrimination. Frequent targets of hate crimes, they are denied everything from jobs to access to restaurants, clubs or other public places. Yet whenever there is discrimination against minorities, whether in housing, employment or public access, advocates often face a difficult challenge proving it in court. A single event can be explained away as a “mistake” or “individual error” and is frequently justified by the creation of numerous context-specific “reasons” for the action. Advocates must often prove not only that a discriminatory act occurred but also that the motive behind the action was discriminatory, and that the discrimination is of a systematic nature.

In the United States, the Fair Housing Council has used testing to collect evidence of housing discrimination against African Americans and other minorities. NEKI learned about this method and decided to adapt it to the situation in Hungary to advocate for the rights of the Roma.

NEKI 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. The profile of the Roma tester 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, including salaries and benefits. The test coordinator then evaluates whether or not differential treatment took 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. Of those seven, NEKI has initiated six anti-discrimination suits. Three of those suits are still pending. Of the other three cases, NEKI lost one but won two. Testers appeared in court each time and their evidence was accepted by the judge without dispute. Even in the case that NEKI lost, the judge did not find the testing evidence to be invalid. This was an important victory for the use of testing to prove discrimination. In one case, NEKI did not initiate legal proceedings but rather approached the defendant about negotiating an out-of-court settlement. The defendant was interested in avoiding the court and the case was settled for a significant sum of money in less than three months—a significant victory in a country where it can take three years for a court to decide if it even has jurisdiction over a case. NEKI is optimistic about the possibilities for more out-of-court settlements in the future.

There are a few challenges that NEKI has had to keep in mind as it implements this tactic. Notably, potential testers have to be adequately trained and the implications of the project explained to them. NEKI has had issues previously where testers did not show up for a test, wasting others’ time, or where testers did not want to spend the time providing evidence in court. Sufficient explanation can avoid these problems. NEKI also had to ensure that testing conformed to the specifics of Hungarian laws on discrimination. In addition, the cost, in both time and money, of testing has proven somewhat prohibitive. Nevertheless, NEKI’s successes in and out of court have shown that this tactic is an effective method of proving discrimination.

For more information on this tactic, read our 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: 

Testing is a highly effective way of providing evidence of systematic discrimination, which is necessary in order to win a discrimination court case. The tactic is also highly adaptable, having been used with success both in the United States regarding housing and in Hungary regarding employment. Testing could be used to expose discrimination against people on the basis of other characteristics, including nationality, gender or disability (such as HIV/AIDS). It could be used to show racist attitudes in particular branches of government, such as police academies. Testing could also be carried out on a larger scale to show general discrimination in wider society, with testers walking and driving in places known for harassment. In all cases, organizations should make sure to comply with the relevant laws and to adequately train their testers to make sure that they fully understand their responsibilities and commitment to the program.