Test

In Hungary we apply this method if the complainant was treated less favourably than others with the same characteristic due to belonging to a minority group (origin, colour of skin, health condition, sex, etc) but the motive or reason for the difference of treatment is ambiguous. The essence of the method is that a situation tester belonging to the same minority group as the complainant and another tester not belonging to that respective group who otherwise possesses the same skills and characteristics will be sent to the institution/facility concerned by the complaint with the same purpose, same questions and request.

E.g. in case of a complaint concerning a recruitment-related discrimination on the ground of ethnic origin we send a Roma tester to the same advertised position, and soon after – on the very day – another non-Roma tester. In case the Roma terster is sent away by saying that the position has already been filled in while the non-Roma tester is employed in the same position, there is a reasonable suspicion that discrimination on the ground of ethnic origin occurred.

As the method is rather expensive it is not worth applying it if the examination of the conformity of the suspicious conduct with the requirement of the equal treatment can be performed in a different way (witness testimony, deed, information from other sources).

Prior to conducting the situation testing the complainant is thoroughly interviewed, a comprehensive fact-finding is carried out and all the circumstances are clarified. The whole process of situation testing is managed by the coordinator. The coordinator’s task is to hear the complainant, to select the right testers after getiing acquainted with the basic case (“alapügy”), to devise the screenplay of the testing, and finally to evaluate the results of the testing.The coordinator is obliged to prepare the testers for their task properly and provide them with all the relevant information. The coordinator – prior to the actual situation testing – conducts fact-finding in the course of which he/she gets acquainted with the all the important attributes of the institution/facility to be tested. E.g. in case of testing an entertainment establishment it might be necessary to visit the establishment in order to know where the entrance is located, where the security guards stand, how the admission takes places, which are the opening hours, etc. In case the tester gets into trouble while performing the testing, it is the responsibility of the organisation ordering the situation testing to provide complete legal defence and representation.

It can happen that the testing is carried outside of the testers’ residence. In such case it is the coordinator’s task to provide for travelling and accommodation. If possible, the coordinator shall go with the testers to be available in case anything comes up.

Before starting the testing the tester must be made familiar with every detail of the case to be examined via the method of situation testing. We must share the accurate screenplay with the tester and his/her task in it. The testers must be briefed about the following:

§ to fully cooperate with the employer in case of a recruitment-related testing;

§ the task is to record objectively and only those things that the tester oneself experienced;

§ testers are not permitted to label the tested workplace (employment facility), employer, employees of the catering establishment, they are not allowed to express their possible indignation;

§ testers are obliged to record their experiences by filling out a questionnaire;

§ testers are obliged to appear before an authority or the court as witnesses and explain about the testing if it becomes necessary

§ abiding by obligation of confideliaty: testers are not permitted to talk about the case and the information obtained during testing, no statement concerning these information may be made unless the coordinator knows about that and approves it.

Right after the testing the tester fills out a test questionnaire. The questions of the questionnaire concern the information given by the representatives of the company about the advertised position and the workplace itself. Furthermore, there are certain questions related to the behaviour of the employer’s representative towards the tester: has the tester been kept waiting, has he/she been greeted upon entry, has the representative of the company introduced him/herself, has he/she shaken hands etc. The differences between the answers given to the questions present well whether there is any difference between the attitude or behaviour of the employer towards the Roma and non-Roma applicant. Filling out the questionnaire is mandatory in each case because it can happen that a year is passed by the time the tester testifies in a court procedure.

The questionnaire is a suitable instrument for recording the concrete facts apart from the tester’s subjective impressions and for these two categories to appear separated for the coordinator as well. The questionnaire is always filled out also by the tester! While evaluating the results of testing not only the answers of the “majority” tester and the “minority” tester will be compared to each other but the questionnaire filled out by the complainant will be compared to that of the testers as well.

One of the most important aspects in terms of devising the screenplay is to decide upon the order of testers’ appereance, and whether there is need for the “majority” and the “minority” testers to be within eye- or earshot.

In the course of testing a recruitment-related case the most important rule is that always the Roma tester goes first to the appointment, as it can be checked only this way whether the employer’s possible – otherwise most frequently quoted – reason for rejecting the application that the position has already been filled is real or not. If our tester belonging to the minority group is sent away by referring to that reason (pretext) and 30-60 minutes later the other tester is received by the employer and the position is offered to him/her, we can establish that there is a reasonable suspicion for the occurrence of discrimination.

Contrarily, in the course of revealing discrimination in catering establishments the situation testing has to be devised so that the “majority” tester not belonging to the minority group could be the ear-and eyewitness of how the testers are treated at the entrance of (whether they are let in) or within the catering or entertainment establishment (whether they are served). Even if the minority tester’s admission is rejected, the majority testers will enter the establishment and have a look around to get some impression.

Certainly, the design of the screenplay is in each case governed by the received complaint which we want to examine.

§ The parameters of the tested institiution (workplace, catering establishment, etc.) (address, its view, number of premises, location of the building, opening hours, number of security guards, etc.);

§ Name, status or position, appearance, estimated age of of all those belonging to the institution with whom the tester in the course of testing met or got in touch;

§ The behaviour (attitude) of the above persons towards the tester (kind-dismissive, polite-rude, greeted in advance – did not greet in advance, offered coffee or seat – did not offer coffee or seat, communication: formal – informal, smiled – did not smile, etc.);

§ Who and what said with regard to the subject of testing (Is there vacancy? Is the entry free to the entertainment facility? etc.), what piece of information could be overheard.

We ask for a written statement from the testers authorizing us and the Authority to process their special data – relating to their Roma origin, colour of skin, helath condition, sexual orientation - and to forward them to third parties (court, other authorities). Prior to each testing we conclude an agreement of mandate in which we put forth the tasks and responsibilities of the tester, the location of testing, the tester’s obligation to testify and the fee for the performance of testing. Under the contract the Office assumes to provide the tester with complete legal defence in case he/she suffers any offence or disadvantage. The testers have to undertake an obligation of confidentiality with relation to all information on testing and basic case.

The application of testing is rather expensive and requires extraordinary forsight, caution and organization.

Both types of testers might be deeply affected emotionally during the situation testing. We have to pay special attention to the “minority” tester as in case of being successful i.e. if the “minority” tester has been discriminated, he/she goes through the humiliating procedure violating human dignity just like the complainant. The coordinator has to provide for it that after performing the testing and filling out the questionnaire situation testers have a possibility to discuss the things happened to them and to get relieved from their remained tension. After the completion of testing the testers return to the coordinator and the questionnaires are filled out in his/her presence and this is also the time for the discussion to take place. It is the coordinator’s responsibility to call the tester’s attention to the possible emotional impact of participating in testing. Before including someone into the testers’ list we must make sure that the candidate has “strong enough personality” for performing the assigned task. Of course, also the tester him/herself should have such good self-knowledge that makes it possible to assess how much his/her emotional capacity stands.

Situation testing is still only in embryonic form in Hungary, the method is undergoing a continuous transformation and improvement. The infrastructural background of the system is missing. Ideally, the organ ordering the given testing should have such great database that makes it possible to send different persons to the different “missions”. Unfortunately, during the past years our Office was also forced to work with the same 2-3 Roma testers. Therefore it can happen that they are chased away three times from the entrance of an entertainment establishment within 6 months – possibly attended by defamatory words, meanwhile they are told several times in certain workplaces that there is no recruitment for them. On the same occasions the non-Roma testers are let in or would be recruited.

It is only the testers whom the organ ordering the situation testing can rely upon in the course of conducting the testing. In the event of the so-called “hidden” discrimination cases (i.e. when the discriminating party appeals to some apparently neutral justification) the final result of the procedure is determined almost exclusively by the result of testing, in other words the outcome depends on what the testers said. Since enormous responsibility lies on the situation testers it is our essential interest to employ such persons who are suitable for the task in every respect. The tester must have self-knowledge and should be able to control his/her passion. It can befall that in a strained situation he/she will be defamed and disparaged. There was also a case when – while testing a discotheque – the security guard slapped the testers. Besides being able to stay cool and neutral, creativity, autonomous thinking and skill for solving problems can be necessary as well. Although the coordinator elaborates the screenplay, unexpected circumstances could come up under which the situation tester must rely upon him/herself. Therefore the good tester should possess the following characteristics: He/she

Before we set about devising the testing in a given case it is worth considering the subjective aspects of it. Although we are all aware of the fact that discrimination against various minorities and prejudiced thinking is a problem present in everyday life, we may not leave it out of consideration that sympathy between the candidate and the employer can be a very important factor when making a decision upon recruitment. Our prejudices certainly have impact on it whether we find someone pleasant who is otherwise Roma or disabled. However it also influences our decision and behaviour towards others how he/she is dressed or whether we find his/her hairstyle nice. There can be something annoying in the way he/she speaks, it could disturb us that he/she does not look in the eye when talking or the handshake can also be “disappointing”. With regard to sitation testing our experiences show that there are cases when the empolyer is dismissive towards one of the Roma applicants while he/she welcomes the other - also Roma - candidate and might even come to employ him/her. Certainly, it is very difficult to draw the line between the cases when the complainant gets into a disadvantageous situation for beloning to a minority group and for not being found pleasant and appealing by the representative of the institution tested.

We have to take into consideration that our testers’ impressions and feelings might be subjective as well. One of our testers might feel that in a given place he/she was made felt belonging to a minority group while another tester from the same place does not find the behaviour of the representative of tested instituion extraordinary or offensive.

Although the subjective factors cannot be completely excluded we can aim to have as clean result from the examination as possible. One of the instruments for this purpose is the questionnaire, in which we must include questions (has the tester been greeted, has he/she been offered a seat, how long has he/she been kept waiting) that can be answered objectively. We can get more accurate and precise results also if we test the same institiution more times or send more matched pairs. To our experience one situiation testing is not enough to get an exact result in the vast majority of cases.

It happens that the complaint turns to the Office saying to have already tested a given workplace him/herself as he/she informed the representative of the employer that he/she is Roma. The person on the line said that in this case he/she rather not appear at the job-interview. So it was obvious for the complainant that he/she was discriminated on the ground of ethnic origin. However, the practice shows that situation testing by phone can be misleading. Certain personal situation testing conducted in these cases had such outcome that the representative of the employer told the candidate revealing his/her minority identity not to appear at the job-interview, but in case of a personal appointment a candidate belonging to the same minority group was cordially received and offered the position. It seems that a good impression and a personal meeting can combat our prejudice. Therefore we hardly ever test by phone and even if we do we reckon with it that the result might incorrect. If the complainant got into a disadvantageous situation in accordance with the procedure outlined above by revealing his/her minority identity in advance and therefore was not invited for a personal job interview we shall also try to test by phone. Contrarily, if the complainant went through all the procedure of the job application and appeared in a personal interview we cannot be satisfied with simply having two testers call the company.

Our Office always recommends its clients not to tell on the line when applying for a job advertisement in advance that they are the members of a certain minority group. It is not felicitous either in the course of fact-finding or during the possible subsequent legal procedure.

These things seem to be in contradiction with the case when everything happens the other way round: the applicant with minority identity does not say anything on the phone, at this stage everything is all right, but when he/she is seen by the employer’s representative at the personal appointment everything changes and the tone becomes dismissive. However, to our point of view this only shows that how varied and unpredictable reactions are generated when someone “meets with otherness”. That is exactly why it is so important to thoroughly examine all the aspects of the cases giving rise to suspicion of discrimination if we decide to conduct situation testing.

§ We question the complainant in detail: when and whom he/she talked to, what kind of job is advertised, what qualification and other conditions are required for the application, what was the reason for the rejection.

§ We get the newspaper in which the job was advertised because it is important to know its exact wording for the elaboration of the screenplay.

§ We call the number in the advertisement anonymously to get to know whether the position has already been filled in. Testing is excluded if the complainant does not come in time i.e. the advertisement is out of date and the complainant comes after the position has been filled in.

§ We select the right testers and elaborate the screenplay of the situation testing.

§ The testers are briefed about all the relevant information, and after the completion of testing we evaluate the test questionnaires.

§ In case of a recruitment-related discrimination the follow up of testing might be necessary, as it is conceiveable that both testers are sent away with saying that the company would inform the candidates about the decision on recruitment later. In such case the testers have to call the company some days after the testing and need to ask if there has been a decision made yet, and if yes, what it is concerning their application.

In case of a recruitment-related testing, if possible, we must select the right testers immediately after recording the complaint. After that we need to prepare them for their task. It is very important that they possess the same conspicouos characteristics relevant and indispensable to performing the situation testing (e.g. sex, age, qualification, knowledge of a language, previous experience etc.). If it comes to situation testing testers are assigned the concrete task related to field-work to call the workplace first and after that to go there personally and act as potential employees.

§ We need to question the complainant in detail with regards to the following: the name, address of the entertainment establishment concerned; on which day and what time has the complainant been there; is there entrance fee; what is the practice of admission, what was the reason for sending away/not serving the complainant; has the complainant asked for the book of complaints; if yes, did he/she get it, what kind of services are offered by the establishment (discotheque, private club programmes, casino, etc.), has the complainant attended the same place before; if yes, was he/she permitted to enter then; does the complainant know personally anyone from the owners or employees of the establishment; has the complainant ever had any conflict in the concerned establishment before; has he/she drunk alcohol on the day concerned before the conflict; how was he/she dressed; has the complainant been accompanied by anyone; has the complainant been subject to atrocity either verbally or physically by the employers or security guards of the establishment; did the security guards wear uniform; has the complainant lodge a complaint because of the case with another organ; if yes, what was its result.

§ We need to become acquainted with the premises: opening hours, entrance fee, security guards, the location of the entrance, the practice of admission.

§ We need to make inquiries about whether there has been any incident on the side of the security guards and if the danger of the testers being physically maltreated by the guards exists.

§ The right tester must be selected and he/she must be properly prepared for the task.

§ The screenplay will always be elaborated on the basis of the circumstances of the concrete facts. It must be taken into consideration that how many security guards are there in the establishment, is there entrance fee, where is the entrance situated etc.

§ Similarly to testing recruitment-related cases, test questionnaires must be filled out and they need to be evaluated afterwards.

With regards to accepting the situation testing as evidence the Hungarian jurisdiction is not homogenous. The relevant law provides for the possibility of freely balancing the evidences brought forward by the parties. The Code on Civil Procedure refers to the principle of freedom of evidence[1] in two paragraphs. First it provides that evidences are especially witness testimony, expertise, deed and other material evidences.[2] Consequently, both testers’ witness testimony and the questionnaire submitted to the court can be accepted as evidence. Besides, the court establishes the facts of the case on the basis of the Parties’ recital and on the result of balancing the pieces of evidence. This balancing means examining and assessing the different pieces of evidence as a whole and the judge renders decision upon his/her “intime conviction”.[3] At the same time the court’s responsibility is to establish whether discrimination has occurred on the day and with regards to the legal relation of the subject matter of the lawsuit. However, in most cases this does not coincide with the testing because most times the Plaintiff turns to the Legal Defence Bureau after the real or presumed discriminatory act happened to him/her, therefore the testing of the concerned employer or entertainment establishment takes place later. In the interpretation of the great majority of law enforcement agencies no retrospective conclusions can be drawn from the testing itself as to whether the same happened to the Plaintiff on the previous occasion because they are two separate legal relations with different date. Simultaneously, the concordant statements of the testers and the Plaintiff can cast doubt on the Respondent’s reliability who usually alleges that he/she has never discriminated, members of Roma minority regularly attend his/her entertainment establishment or perhaps that he/she employs Roma persons as well. Situation testing can support the claim that there is a strong suspicion of the existence of discriminatory practice as in case the same thing happened twice – on the day of the subject matter of the case and the testing – it can be presumed that the Respondent does not abide by the requirement of equal treatment.

In spite of the mentioned dilemmas NEKI’s experience is that if we are succeded in launching a procedure in a case related to which there was a prior situtation testing supporting the complaint about discriminatory practice, the Plaintiff is in a better starting position. There are several Hungarian judicial decisions mentioning in the reasons the results of situation testing as evidence establishing discriminatory practice.[4]

The most frequently formulated criticism against this method is that it is nothing else but financed provocation. Because what happens in the course of such a procedure is as follows: someone turns to the legal defence organization alleging to have been discriminated and asks us to launch a legal procdure and request compensation. The organization pays at least two persons in order to have them go to the place complained about and “reveal” what is going on there. The paid spies of the organization intrude the “building”, gather information in disguise and return. They write “some paper” together – no one checks whether it is real or fiction – then “Let’s go to court!” where the Plaintiff is represented by the organ ordering and coordinating the sitaution testing. And when it comes to evidence we bring the “paid witnesses” in the person of testers.

It is difficult to give a reassuring reply to the above. It is natural that the Defendant defends him/herself as he/she can, including labelling our method as provocation. It is a different issue if we can convince the presiding judge that testers give objective witness testimony. The ETAD[5] already mentioned in the introduction can help us with this by defining the method of situation testing as a tool for revealing discrimination. At the same time it is likely that courts will assess testings officially performed by the Authority differently as opposed to those performed by an NGO.

We can also refer to precedents, i.e. final decisions accepting our method and its result as a means for proving discrimination. Finally, it is up to us wheter we can remain credible and employ testers who are able to convince the court that their aim was exclusively to record the facts and not to provoke a certain result.

[1] Act III of 1952 on Civil Procedure Code

[2] Article 161 (1) of Code on Civil Procedure

[3] Article 206 (1) of Code on Civil Procedure

[4] See for example Fehér Füzet 2000, D-i diszkó vagy Fehér Füzet 1999, B. Lajos (munkaügyi diszkrimináció), (White Paper 2000, discotheque in D. or White Paper 1999, B., Lajos), www.neki.hu

[5]Article 13 (1), (2), (3) of ETAD

Situation Testing