Discrimination in the field of employment

Another large area of discrimination cases is made up of discrimination in the field of employment. One form of this is when a roma applicant is informed over the telephone that the job is still not taken, then at the personal interview, the attitude of the interviewer changes and the applicant is sent away with made up excuses. We have found that discrimination against romas is most often seen during the process of applying for a job. Naturally there have also been instances when the roma applicant was hired for the job but then his boss or perhaps colleagues created an atmosphere in which he could not work on the long run. In cases of mass layoffs the employer sometimes parts first and most willingly with his roma employees. A special type of labour discrimination is discrimination within the framework of public works organised by the local government. A form of this is when the romas obliged to work are only given the most menial jobs (sweeping street, picking up litter, clearing ditches) irrespective of their qualification, while only non-romas are allowed to work in public institutions (schools, nurseries). We have seen cases where romas were made to carry out public work with no labour contract, no suitable clothing, no tools and no drink under inhuman conditions.

Finally we would like to mention the black labour afflicting a remarkably large proportion of the roma society. Defenceless roma brigades working under terrible conditions, sometimes several hundreds of kilometres away from their home are sent away after completing the work without payment.

Our Office has already dealt with the situation of romas on the labour market, and more specifically with labour discrimination, in a separate study. [1] All the same we will give a brief overview of the development of these cases prior to the Law on Equal Opportunities, and the changes that have occurred since the law entered into effect.

In the past, in the event of labour discrimination the plaintiffs basically had two choices: he could either file an administrative procedure with the labour inspectorate which could levy a fine if the infringement of their rights is stated, or he could initiate a court procedure. According to the provision of the Law on Labour Supervision (Met) labour supervision also included the prohibition of discrimination. [2] Despite this we have found that like the consumer protection inspectorates, the labour inspectorates also did not excel in revealing and dealing with such complaints. We had a case (which we shall introduce in greater detail later), where the inspectorate condemned an employer for violating the prohibition of discrimination but the applied sanction was so meagre that the seriousness of the procedure became uncertain – at least to us. One of the elementary problems was that prior to the March 2002 amendment of the Met the procedures of the inspectorate did not cover the procedures preceding the establishment of labour relations. Thus in the event of discrimination during the selection process, the inspectorate could rightfully claim lack of competence. [3] A further problem was that the inspectorates do not know of and do not apply the resting procedure and without this it is really hard to disclose discriminative practice.

Prior to the law on equal opportunities coming into force, the labour law (Mt) was the only law that was not attacked because of its provisions against discrimination. The provisions of the Mt created as early as 1992 regulated the prohibition of discrimination during labour relations and the reversal of the burden of proof. Thanks to the 2001 amendment of the law the definition of indirect discrimination was introduced and the sphere of the law extended to the procedures preceding the establishment of labour relations. This was an extremely important step as previous regulations did not make it possible to sanction the form of discrimination that occurs the most, i.e. in cases when a person is not employed due to his/her ethnic affiliation. As no working relations were established in these cases, the system of sanctions of the Mt that assume employment could not be applied.

Because of this, when a case such as this went to court it was doomed for rejections due to the lack of competence. The same thing can be said about cases where the people concerned tried to obtain work through other legal relations pertaining to work like through contracts of agreement. The chaotic relation of anti-discrimination regulations of that time was further illustrated by the fact that the definition of direct discrimination was left out of the law. Despite all this, it can be said that even with these „deficits”. This law harmonised most with the EU laws.

As already mentioned the provisions of the Mt stipulated the reversal of the burden of proof in procedures due to discrimination. Surprisingly the Hungarian regulations apply stricter conditions on the employers than the EU directive on the prohibition of racial discrimination. [4] According to paragraph 5 section 8 of the by now repealed Mt, „in cases of dispute regarding the proceedings of the employer, the employer has to prove that his conduct did not violate the regulations on the prohibition of discrimination.” [5]

The Guideline on the other hand only makes the reversal of the burden of proof possible if the individuals, who by their own account have been offended by the disrespect of the principle of equal treatment can prove - in front of the court or other, competent authority - facts from which the occurrence of direct or indirect discrimination can be presumed. Thus it is a prerequisite that the event of discrimination can at least be presumed and for this, the person claiming discrimination has to offer evidence. [6]

Despite the fact that the regulation of discrimination in the field of labour was quite up-to-date, we have found that such cases were just as hard to successfully represent as other cases tried within the framework of civil lawsuits. Although proving the fact of discrimination was and still is not our task if we did not have the results of a successful testing, the court was reluctant to state the fact of discrimination. A good example of this is our famous case of the roma girl who was not employed at a hotel due to her origin and whom the manager called “a gypsy”. We have summoned several indirect witnesses who confirmed that the girl has applied for the job by phone and that on the day and time in question she first asked the clerk of the regional government, then the minority ombudsman for help because of the humiliation she has suffered, but all our efforts were in vain. Although our plaintiff could give a detailed description of the main hall of the hotel and the receptionist, the court did not accept that as proof of her having been in the hotel on the day in question and thus has rejected our claim on first instance and on appeal level too. Upon our request for a review of the case the Supreme Court ordered the court of first instance to start a new procedure and has supplied the court with directions as to the application of reversed burden of proof. Unfortunately, we lost the case again. [7]

Returning to the cases that were rejected on basis of the above mentioned reasons – i.e. lack of competence – are „only” suable for the violation of inherent rights. [8] However, the preference of reversed burden of proof could no longer prevail here: the plaintiff had to prove that he has been discriminated.

The new Law on Equal Opportunities has – reacting to the problems introduced above – extended the force of the law to legal relations that are established in connection with the procedures that precede the establishment of other legal relations pertaining to working. [9] We will illustrate the significance of this through a concrete example.

The issues of giving proof were regulated in compliance with the guidelines in the Law on Equal Opportunities[10]. The party whose rights have been violated has to prove that he has suffered injury and that at the time of this violation he really was or the violator presumed that he was in possession of the characteristics appraised in the law (racial affiliation, skin colour, etc). Only after this can the burden of proof be reversed according to the law. From this point on it is the other party’s task to prove that he has met or with respect to the given legal relations was not obliged to meet the requirements of equal treatment.

With respect to the field of employment the areas of priority have been established in detail, where the observance of regulations pertaining to the prohibition of discrimination should be paid special attention to. Thus the requirements of equal treatment are violated if direct or indirect discrimination is realised during the obtainment of work, especially through public job advertisement, in the hiring process, in the conditions of employment, in regulations connected to the legal relations of employment, or in regulations that are in connection with the regulations that facilitate the establishment of labour relations; in the course of establishment and termination of other legal relations pertaining to employment relations or labour; in connection with training prior to and during the course of labour; in establishing and ensuring working conditions; in the establishment of benefits based on other legal relations pertaining to employment or labour, especially in the establishment and assuring of wages; in the organisations of employees win connection with membership or participation; in the system of promotions; during the course of vindication of compensation and disciplinary responsibilities.

Besides the above-mentioned in practice it can occur that due to specific special employment characteristics, a distinction has to be made between the employees but this must not mean the violation of the requirements of equal treatment. This can be the rational distinction based upon all relevant and legal conditions reviewed upon employment, if the nature of the work justifies it. Discrimination based on religious or other ideological conviction, national or ethnic affiliation, discrimination stemming directly from the mentality of the company, discrimination that is justified due to the content or nature of the given occupation and is based on proportionate and real employment requirements is also allowed.

Below are some examples illustrating the problems of labour discrimination. On grounds of the Law on Equal Opportunities we represent these cases. We tried to show examples that introduce the different types of discrimination happening in the area of employment.