In 1964 the Civil Rights Act of the USA was enacted, Article VII of which prohibits ethnic discrimination concerning the labour market. Due to the activities of civil rights movements, in 1968 – after the murder of Martin Luther King – another rule declared the equality of citizens and prohibited discrimination. The Fair Housing Act proclaims that it is forbidden to prejudice tenants, buyers and those who apply for loans on the basis of race, the colour of skin or religious beliefs. This act was amended first in 1974, when discrimination on the ground of sex was prohibited and since its second amendment in 1989, discrimination on the basis of mental or physical disability or marital status also constitutes a breach of law.
Since beforehand no rule sanctioning discrimination existed, no-one was threatened by any kind of punishment if he/she explicitely specified in an advertisement of flats that black people need not apply. So before 1968 conditions like “white only” and “colored need not apply” were just usual.
Beyond that, the institutional background was also given therefore it was absolutely accepted that no or only few non-white tenants were allowed to move to certain areas.
The situation was similar in the labour market. For example during World War II trade unions made a vow which they only broke once, when the railway company of Philadelphia employed black people because of the lack of manpower.
In this period interracial marriage was prohibited in the significant majority of states. In the army black people were not served in the canteen and separate units were set up for the black and white soldiers. In the southern states before the enactment of the Civil Rights Act in 1964 every single aspect of life – from schools to restaurants – was intervowen by racial discrimination.[1]
After the enactment of rules prohibiting discrimination the undisguised, state-supported forms of discrimination were replaced by covert, concealed actions which were thus difficult to prove. The method of testing was created in order to reveal these hidden ways of discrimination. The first testing was carried out in the field of housing after the enactment of the Fair Housing Act with the aim of uncovering discrimination of black inhabitants concerning the housing market.
In the early sixties in some important cases the courts of the USA accepted the testing as an effective and under certain conditions the only tool of proving discrimination. Nowadays testing is approved by lawmakers, courts and state authorities as well.
For example the Supreme Court accepted in one of its decisions in 1982 that the testers and the organizations fighting for fair housing have the right to act as litigants according to the Fair Housing Act.
In one of the most significant cases that were revealed due to testing fair housing the Havens Realty Corporation was condemned by the court. The organization protecting the right to fair housing called Housing Opportunities Made Equal (HOME) sent black and white testers to the Havens Realty estate agency to inquire about the flats. The estate agency directed the black persons to an integrated house saying that every flat in the houses they were interested in and where only white people lived was occupied. To white testers inquiring on the same day some flats were shown and they were told that in case they wished to hire them they could move in right then.
The HOME and the black and white testers sued the company with regards to Article VIII of the Fair Housing Act. The Havens Realty Corporation questioned the testers’ legal standing stating that since they did not act bona fide when searching for a flat they had no right to sue the agency. In this case the court came to the decision that black testers had legal standing, because subject to the wording of the act every “person” has the right to true information about housing opportunities without any regard to race, colour of the skin, religious belief, sex or nationality. The defendant infringed this right and as a consequence caused damage to the blacko testers, because it falsely stated that there was no available flat in the house where white people lived. On the other hand the court rejected the petition of the white testers since they got properly informed – they were told that there were available flats.
In another aspect the court held that testers’ had legal standing in spite of the fact that the Plaintiff chose to be exposed to the danger of infringement merely for the sake of litigation. In another case the court ruled that the Plaintiff’s tester status did not undermine his legal standing. In Bellwood v. Dwivedi the 7th Circuit of the Court of Appeal confirmed that the testers have legal standing under other articles of the Fair Housing Act as well.
The court laid down that merely the fact of discrimination is enough as an injury to establish legal standing.[2]
In Evers v. Dwyer the Supreme Court amended the decision of a lower court and ruled that a black person who takes a seat in a section reserved for white people in a separated bus only in order to put the lawfulness of the segregation policy to the test suffers disadvantage regulated by civil acts.
In Pierson v. Ray the court came to the decision that the Plaintiff, a black man suffered disadvantage when he was arrested because he entered a section of a bus stop that was reserved for white people with the aim of testing the lawfulness of the segregation policy.
Moreover, in Davis v. Mansard the court laid down that the human rights of the tester are also infringed when discriminatory actions are taken against him/her and as a consequence of this he/she has a right to compensation, since he/she became a victim of discrimination too.
In every state of the USA there are organizations that use the testing method to examine discrimination in the field of working, housing and catering. They publish the results and initiate legal procedures and incidentally reach out-of-court settlements. These settlements are to be approved by the courts and it is also the courts task to monitor whether the litigants comply with the settlements. Until the ninties the amount of compensation did not exceed some thousand dollars but thanks to twelve settlements reached by a Wasington-based organization[3] nowadays the compensation means hundred thousands of dollars.[4]
The method is most often used to reveal discrimination in the field of housing, working and catering, however the testing is also capable of disclosing discrimination realized through sophisticated methods.
For example in the summer of 1988 the Washington Lawyers Committee developed a testing technique for the examination of taxi drivers working in Washington and its surroundings. The testing pairs – an afro-american and a white person – had to verify two theoretical assumptions. On one hand they examined whether the taxi drivers refuse the service because of the colour the client’s skin and on the other hand if they refuse passenger transport in mainly afro-american populated districts. In two months the well-trained and carefully selected pairs carried out two hundred and ninty-two testings. The results revealed such statistically disproportionate facts as to what extent afro-american testers were more frequently refused compared to white testers and to what extent service was denied when the testers wished to travel to the primarily afro-american populated districts of the town. Twenty percent of black testers were refused by the taxi drivers while only three percent of the white testers faced the same problem. A tester who wished to get to the afro-american populated district had a chance to be refused twice as big as the one who wanted to travel to a district within the same distance but populated by white people. Due to the results of the testing lawsuit was initiated against three taxi companies – where the proportion of discrimination was strikingly high. The procedure ended up with an out-of-court settlement, according to which the injured Party got compensation of five thousand dollars and the companies obliged themselves to self-control. However, the most important outcome of this procedure was that it was the first time in the history of the country when a court ruled that taxi companies are responsible for the conduct of their drivers.[5]
After the successful action against the taxi companies, the human rights department of the municipality of Washington launched an independent testing programme in order to sue lawbreakers. The Plaintiffs made use of similar methods of evidence in the lawsuit against Denny’s restaurant, when coloured CIA agents initiated legal proceedings, because they found the service offered by the restaurant discriminating. In this case the litigants also reached an out-of-court settlement according to which besides paying compensation the restaurant was obliged to pay one hundred-thousand dollars to each of the ten human rights organizations what they use for protecting human rights.
In the USA in case of discrimination in the field of labour one can turn to the competent court based on the infringement of Article VII of the Civil Rights Act. In connection with the testing the Supreme Court of Justice of the USA stated in one of its judgements the following: “Generally testers are arranged in pairs consisting of one white and one of minority, they are supplied with a fake letter of recommendation and are prepared to answer the possible questions of the employer. Sometimes the letters of recommendation given to the protected members of the group are better than those which the white testers are supplied with. Afterwards, testers are sent to the same employer for a job-interview. Having finished the interview, the testers report on their experience and the human rights organization determines whether discriminatory practice exists or not. If the human rights organization observes discriminatory practice, the testers may ask for remedies of administrative or judicial nature.”[6]
From the aspect of labour-affairs, the decision brought in the Kyles II case meant a breakthrough, since the court found that the litigant had legal standing. In the Kyles II case the court laid down as a fact that the two white testers applying for the same job as the Plaintiff received an offer from the employer, while the Plaintiff did not.[7] Afterwards, the court had to decide whether the job-testers might qualify as injured ones in this case and consequently had legal standing. In order to find the answer to this question, the court turned to the Fair Housing Act[8] which entitles the injured parties to initiate civil proceedings.[9]
According to the reasons of the court, the job-testers are entitled to launch civil proceedings, because the protection guaranteed by law extends to everyone, including the tester in case he/she is restricted, classified or segregated in any ways by virtue of race, colour of the skin, religious beliefs, sex or nationality.[10] Therefore if a tester does not get the job, because he/she is afro-american, the pertinent rules are infringed and this is enough to take a civil action. The court also ruled that the testers’ right to take civil action is in compliance with the underlying objective of Title VII, because the provisions of Title VII promote public interest and their aim is to combat discrimination in workplaces. It is obvious that testers promote this interest, because discrimination is hard to prove and testers gather evidence that is often valuable, if not indispensable.
The courts of the USA also established that in case an injured tester is entitled to bring a civil action, he/she also has the right to non-pecuniary damages like any other Plaintiff. As far as labour-affairs are concerned, the Civil Rights Act of 1991 entitles the injured ones to civil and punitive compensation as well, but the amount shall range from 50 000 to 300 000 dollars depending on the size of the employer company. In housing matters the victims have the right to compensation without any significant limitations of the amount.
Besides legal proceedings, the testing method is utilized also in the field of sociological researches in the USA. In a research programme in 1999 discrimination occurring in the housing-market in Philadelphia was examined with the participation of sociology-students from the University of Pennsylvania.
In the course of testing the possibly discriminatory operation of estate agencies was put to the test when making phone calls on the basis of housing-advertisements published in different papers.[11]
Analyzing the index-numbers elaborated to measure the range of discrimination it was found that while white middle-class men had 76% full access to the house-renting market of Philadelphia, black women of lower status had only 38%. The research pointed out that not only the chance to access of black people, women and lower-class people were worse, but the interaction of race, sex and social class was also present.
It was also the United States where car-dealers were tested in 1991. The research tried to underpin the hypothesis according to which car-dealers do not offer a brand new car in the same way to a black as to a white person and to a woman as to a man. They found that white men got the best offer, white women received 40% higher offers and black customers were told prices two or three times higher.
In the American literature on this topic we can find examples about surveying cases of discrimination in the course of police proceedings too that are useful in the internal control of the police, moreover, as we have seen examples about testing car purchase, which is a crucially important event in the American consumer-civilization, also exist.[12]
[1] In December, 1955, in Montgomery, Alabama Rosa L. Parks, a black worker took a seat on the bus in the front section that was reserved for white passengers and then was not willing to leave when a white person wanted to take the same seat. As a consequence she was fined, yet due to this case black people boycotted local mass transportation for a year, causing serious financial damage to the company. The first step of the fight against racial discrimination was the act of Rosa L. Parks and the boycott that followed it.
[2] See United States v. Balisteri, 981 F2d 916, 929 (7th Cir. 1992) (“it qualifies as discrimination and constitutes an infringement of law to offer the same flats for higher rents to the black testers than to the white testers”), 510 U.S. 812 (1993); City of Chicago v. Matchmaker Real Estates Sales Center, Inc., 982 F.2d 1086, 1095 (7th Cir. 1992) (“the testers were discriminated on a racial basis even if they were done no other harm”), 508 U.S. 972 (1993).
[3] Fair Housing Council of Greater Washington
[4] Fitsum A. Alemu: A tesztelés mint bizonyítási módszer a bírósági eljárásban. (Testing as a method of evidence in judicial procedure) Fundamentum No. 2000/2. p. 75.
[5] Fitsum A. Alemu: A tesztelés mint bizonyítási módszer a bírósági eljárásban. (Testing as a method of evidence in judicial procedure) Fundamentum 2000/2. szám p. 77-78.
[6] Kyles II, 222 F.3f 292.
[7] Kyles II, 222 F3d. 289, 300 (7th cir. 2000).
[8] Fair Housing Act, 42 U.S.C 3601-3631 (1994). Since the FHA is functionally correspondent to Title VII, Kyles II, 222 F.3d at 295, EEOC v. Bailey co., 536 F.2d 439, 453 (6th Cir. 1977) are the two acts.
[9] 42 U.S.C 3610 (a)(1)(A)(i).
[10] Civil Rights Act of 1964, 42 U.S.C. 2000e-2(a)(1)-(2) (1994); Kyles II, 222 F.3d at 298.
[11] The testers used detailed, ready-made panels during the conversations that contained direct instructions about what to do when an answering machine is activated and when personal conversation takes place. Laying down the characters of the testers meant the following: ethnically neutral names, same job with different workplaces, same age, occupation and income and other features relevant to moving (the applicants were non-smokers, having no pet or car). With regards to the conditions of renting a flat, the maximum rental fee and the reasons for moving were determined in advance.
[12] Sík, Endre – Simonovits, Bori: A diszkrimináció fogalma és a diszkrimináció –tesztelés rövid története (The definition of discrimination and the short history of discrimination-testing)