Judicial procedures

Besides or instead of administrative procedures the party suffering discrimination can also seek remedy through litigation. The biggest difference between the two procedures in that in the course of a labour lawsuit the plaintiff can claim pecuniary and non-pecuniary compensation, whislt as the result of administrative procedures the perpetrator can „only” be obliged to pay a fine. If, for instance, the labour inspectorate establishes the fact of discrimination, and a fine is imposed as a consequence of this, the plaintive can initiate a labour lawsuit. Although the procedure carried out by the labour inspectorat does not acquit the court from conducting its own procedure, the administrative resolution taken into evidence confirms the statement of the plaintiff.

In the earlier introduced case of Cs. Gyula, the Bureau, in possession of the administrative resolution, initiated a labour lawsuit and asked the court to oblige the respondent to pay for the non-pecuniary damages. As litigation is just beginning in this study we only wish to deal with the question of why we considered it justified, in conjunction with Cs. Gyula’s request to turn to court after the labour inspectorate has broguht judgement against the respondent. The reason for this is that it may be questionable why a company has to stand before a legal forum twice for the same case and why the condemnation has to be requsted again.the question, in theory – can be justified, however, there is an extremely simple explanation for it in this specific case.

First, due to reasons previously set forth, we found the amount of the fine imposed by the labour inspectorate too low for the sanction to fulfil its purpose and act as a deterrent. Ssecond, annd above all, because the company has rejected Cs. Gyula with the same reason on 3 different occasions. The company injured Cs. Gyula’s dignity three times by telling him openly, in front of other candidates that the reason he is not being hired is solely the fact that he is a Roma and he does not even have to ill out the application form, as it is completely unnecessary. On all three occasions Cs. Gyula left the office humiliated and ashamed. Thus, based on the power of the law, he turned to the labour court with reason, for the establishment of non-pecuniary compensation, as discrimination applied by the employer was without rational reason and the wanton discrimination offends human dignity.[1]

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 od indirect discrimination was introduced and the sphere of the law extended to the procedures preceeding 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 with these „deficits”. This law harmonised most with the EU laws.

• Scope of authority

The cases that were rejected on basis of the above mentioned reasons – i.e. lack of competence – are „only” suable for the violation of personal rights. However, the preference of reversed burden of proof could no longer prevail here: the plaintiff had to prove that the has been discriminated. This happened in the case of the earlier mentioned R. József in which the court established – based on the evidence obtained through applying the testing method – that the respondent has violated the plaintiff’s personal rights by discriminating him in the process of establishing legal relations of agreement, due to his/her affiliations. The court forbade the respondent in the decision from any further violations of the law.

The chaotic situation of those times was also charactised by the fact that although we have handed in our statement of claim in 1999, we only received final, legally binding secondary decision two years later in 2001. The Bureau has appealed the order of the court of first instance establishing the lack of competence claiming that based on the known facts it cannot be decided if the legal relations was going to be realised as an agreement between the parties, pr regular working relations? The Court of Appeal gave our complaint place and ordered the court to show widescale proof in order to be able to decide about its own competence or the lack of it. This was done and upholding its previous decision, the court repeatedly established the lack of its competence and ordered the documents to be transferred to the city court that dealt with personality rights cases.[2]

In the framework of giving evidence the court heard as witness the Roma and non-Roma testers of the Bureau, who confirmed the statements of R. József, for as we have already mentioned, the Roma tester was sent away saying the „position has been filled”, while the non-Roma tester who arrived a few minutes later was offered the job. We repeated this testing process later with another tester couple who experienced the same thing: the Roma tester was sent away and the non-Roma tester was hired. The court accepted the testimonies of the people who participated in testing during the course of litigation, and brought its condemning judgement on basis of these. We feel it is important to emphasize this as experience has shown that the conclusivity of the testing method is not accepted in all cases, claiming that the fact of discrimination has to be established specifically in connection with the plaintiff and not later, in connection with other people. However, in this current case, the court has taken the testimonies of the testers in to consideration, more specifically, drawing them into its deliberation process, it came to the conclusion that the racial discrimination underlying the rejection of employment has been proved.[3]

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 preceed te establishment of other legal relations pertaining to working.[4] Accordingly, based on the law on equal opportunities, the competent court would be obliged to hear the case of R. József with applying the principle of reverse burden of proof.

• Giving evidence, burden of proof

As already mentioned the provisions of the Mt already regulated the reversal of the burden of proof in cases of discrimination. Surprisingly the Hungarian regulations have set greater demands for the employers than the EU guideline on the prohibition of racieal discrimination.[5]  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 proe that his conduct did not violate the regulations on the prohibition of discrimination.”[6]

The Guideline on the other hand only makes the reversal of the burden of proof possible if 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 occurence 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.[7]

The issues of giving proof were regulated in compliance with the guidelines in the new law on equal opportunities. 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, skincolour, 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 realitons was not obliged to meet the requirements oif equal treatment.

The case of F. Katalin that was introduced earlier is the exemplary victimof the chaotic, unregulated relations surrounding the procedure of evidence. In F. Katalin’s case, due to th eabsence of direct evidence we could oönly prove rhat the job was advertised, Katalin called the company from her place of work twice, told the story of her rejection on the same day to two local government workers and her flatmate, all of whom confirmed her statements during the procedure of the labour inspectorate.

In our claim, then later on in our appeal against the unfavourable decision we have elucidated that the evidence presented by us creates a closed chain and based on the indirect evidence the fact of discrimination can be stated. Despite this the respondent claimed that he has never met F. Katalin and finds proving this negative fact legally impossible. As a clincher he also brought up the fact that prior to advertising the job the hotel hired a Roma housemaid, who has also been summoned to the trial. The labour court came to the conclusion that the plaintiff could not prove her statement, that she came into contact with the respondent with the aim of establishing labour relations and the respondent has committed discrimination during this process. The verdisct was sustained by the Court of Appeal.

The Bureau turned to the supreme court and initiated a review of the case. We based our petition on our claim that the court have apllied the regulations on the burden of proof in an unrightful manner, as the burden of proof is reversed in the event of litigation, and the court has not taken this into consideration. In accordance with our petition, the Supreme Court has ordered a review in the legal question of how the consequences of proving or the failure of proving burdens the parties in a labour lawsuit that is in connection with the prohibition of discrimination. In its resolution, the Supreme Court ordered the court of first instance to repeat the procedure and to take the given directions into consideration. With regard to the resolution of the Supreme Court answering extremely important questions, we hereby cite the essence of the reasoning in the resolution.

„According to the general regulation stipulated under section (2) of paragraph 164 of Pp, the fact which decides the case and is legally relevant has to be proved by the party, who refers to the fact during litigation and whose interest it is for the court to accept the fact as reality.When applying the general regulations in cases of discrimination it is still the employee who should have to prove that the employer has violated his rights. However it is usually the employer who has the means of proving the conditions of discrimination, which would make it almost impossible to prove the fact of it, thus section (2) of paragraph 5 of the Mt (which is the same as section (8) of paragraph 5 effective now) effective in cases of litigation. „forces” the employer to disclose all facts and conditions at his disposal, for it is only so that he can be relieved of responsibility. Section (2) of paragraph 5 of the Mt specifies that if dispute arises relative to the procedure of the employer in connection with the prohibition of discrimination, the employer has to prove that he has not violated the principle of equal treatment, his conduct did not come up against the prohibition of discrimination.

As a consequence of the burden of proof based on section (2) paragraph 5 of the Mt befalling the employer, the failure to prove the facts necessary to win the case burdens the employer.

In this specific case the courts of first instance and the appeal court has divided the burden of proof with the misinterpretation of the law and has stipulated the plaintiff’s obligation to prove the occurence of negotiations with the employer.

The mere reference to discrimination is not enoguh, however due to the reversal of the burden of proof it is sufficient if the party claiming violations of rights proves the fact that he has suffered injury. After this, the other party has to justify himself, to prove that he has adhered to the requirement of equal treatment. The failure in doing so burdens this party. The court can accept the well-grounded justification of the employer upon the evaluation of the evidence on the whole.

In this given case it was a proven fact that it was not the plaintiff who was hired for the job but another applicant a little while later. After the plaintiff has successfully proved the fact of injury, the respondent can carry out a procedure, in the framework of which, the respondent has to prove without a doubt that with respect to all the conditions of applyig for the job laid down by the plaintiff, he has complied with the requirement of equal treatment. (…). The evidence being indirect does not by itself eliminate the possibility of proof. Stemming from section (1) of paragraph 206. of the Pp, evidence, including indirect evidence, has to be judged one at a time and also compared to one another, taking into consideration aspects of rationality, logic and realism. ….

In the repeated procedure, giving proof has to be carried out and evidence has to be evaluated in accordance with the conditions laid down here.”

The Supreme Court interpreted the then effective legal regulations in accordance with the regulations and spirit of the new law on equal opportunities. From the injured party it only required proof that the injury did indeed happen. (An interesting question: why did they omit specifying the requirement of the plaintiff having to prove, besides the occurene of the injury, that he belongs to the given minority group. One of the reasons for this could be this would have been a far too wide interpretation of the regulations in effect then, or perhaps the respondent did not question the Roma origin of the plaintiff.) One of the most important directions of the Supreme Court’s resolution was that it took the indirect evidence into consideration. It is a notoriuos problem that in the majority of discrimination cases direct evidence is only rarely availble and courts do not like passing judgement in a case in which only indirect evidence has been handed in. That is why the statement of the directions stating that the indirectness of the evidence does not by itself eliminate the possibility of proof, helps a lot during the porcess of giving evidence in all other future cases of discrimination, even with the application of the new law on equal opportunities.

Almost all the difficulties of giving evidence and questions that need clearing came up in the case of P. Marianna and her companions represented by the Bureau.

In January 2003 a company based in Nógrád county posted a job advertisement in the local Superinfo..They were looking for female machine operators, packers and storekeepers. The day after the newspaper published the advertisement, P. Mariann and T. Istvánné called the company around 8 o’clock in the morning, as they wanted to be among the first to apply for the jobs. As noone answered the phonenumber given in the newspaper, they decided to approach the company personally. However, they were stopped at the entrance by the security guard who asked them who they were looking for. The two women told him that they came because of the job advertisement in the paper. The guard called the office of the company, then told the women that all openings have been filled and they should go home. P. Mariann asked the guard indignantly: „Why don’t you tell us the truth? We cannot go in because we are Roas?” the two women did not go home immediately. They waited at the entrance for a couple of minutes and saw that other applicants were being let in. As the company was known not to employ Romas, they could think of nothing else but that they were not let into the office of the company because they were of Roma origin.

The two women left humiliated- As this was noöt the first time that the company did not even give P. Mariann the chance to participate on a job interview, after this occasion she wanted to voice her bitterness. After the humiliating event the two women headed straight for the local Roma legal defence bureau to complain. They told the two workers in the office what had happened to them and asked them for help. One of the administrators called the company in the presence of the two women and inquired after the jobs advertised. During a short conversation he was told that the company still accepts applications and was informed of the working conditions, wages, etc.On that same day two other young Roma girls turned to the Bureau to ask for help in matters of work.it turned out that they had also applied for the jobs advertised by the company. The details of S. Anna were taken down, while Sz. Rozália was sent away with the explanation that all jobs wre taken. Out of the two Roma girls, S. Anna does not look like a Roma, in contrast to Sz. Rozália and the two Roma women apllying earlier. S. Anna called the company from the Bureau and inquired after the jobs. The same lady that sent Sz. Rozála away s just a couple of hours earlier told her over the phone that hte jobs were still open. With this she confirmed the opinion in the area that the company does not „like” to employ Romas.

The legal representative of the respondent company motioned during the procedure and also in his appeal that the court should establish its lack of competence as labour relation was never even established between the parties. However, due to the already mentioned amendment of the Mt, i.e. people can turn to the court in cases of discrimination among those applying for work, it was obvious that the court cannot and will not establish its own lack of competence.[8]

Giving evidence seemed more problematic during the hearings. The „defence” of the respondent was built upon the the claim that at that morning hour only the secretary of the company was in the office and she did not know about the job advertisement. That is why she ordered the porter to send the two waiting Roma women away. According to her testimony, from the windows of the office, the people standing at the entrance cannot be seen, thus she could not hae seen the ethnic origin of the applicants for the job. When one of the heads of the company arrived around half past 8, the misunderstanding was cleared and from that point on, all applicants were let in regardless of their origin. Furthermore to prove that the company does not apply discrimination against its employees, the respondent handed in 3 declarations on which 3 employees of the company declare that they are of Roma origin, are employed by the company and have signed the declaration from their own free will. Beyond that, the respondent annexed a list of applicants for the jobs advertised. According to the company the list does not only include the names of those who have applied for the job on the day in question, but also the names of those who hae turned to the company in the month in question. The company records the names and contact details of all applicants so if a vvacancy arises they can choose a new employee from that list.

The reasoning of the respondent may seem rational at first but the witnesses heard during the trial and the written documents handed in clearly disproved all evidence of the respondent.

However, the case was not decided by the indirect evidence introduced later below, but by the testimony of a local woman who applied for the job on the same day but even before P. Mariann and T. Istvánné. In her testimony she stated that she was in the office of the company between 8 and 8.15 am, and was admitted without any problem. After the personal interview, upon leaving the office, she saw the 2 Roma women standing at the entrance and being told by the porter that all jobs were taken. As the teo plaintiffs also remember meeting the woman, the 3 testimonies disproved the defence of the respondetnt based on a „misunderstanding”.

It is our standpoint that the illegal procedure of the respondent was not only confirmed by the testimony of the local woman. The indirect evidence presented to the court, slips of the tongue, small momentums also have to be taken into consideration, as on the whole, these also confirmed the statement of the plaintiffs. These other pieces of evidence are:

-         It does not make sense that the 3 plaintiffs apllying for the job advertised wre sent away, while on other occasions people inquiring after work with the company are admitted and their details recorded, even if no jobs have been advertised.

-         Several witnesses testified that Sz. Rozália and S. Anna visited the employer on that day because of the working opportunity. Sz. Rozália was sent away without an interview, but a couple of hours later, she was informed over the phone that they were still accepting aplications.

-         Another reasonnig of the respondent was problematic, namely that the secretary acted within her competence when she told the porter to send the applicants away as there was no enrollment on that day. It is not realistic that a secretary, who has never before and even since then made such a mistake, does not ask her colleague or find out by other means if there are any interviews on that day. The defence of the respondent becomes even more unrealistic as interviewing is not the duty of the secretary, thus she has made a mistake in a matter that is not part of her work. In situations like these it is doubly expected from the empoyee to call the competent colleague.

-         The respondent has handed in 3 declarations during the trial according to which, Roams also worked in the factory, thus proving how far discrimination stands from the policy of the company. A Roma woman also employed by the respondent was heard and stated that is no discrimination against her or the other Roma factory workers. (the legal representative of the respondent, in an attempt to prove the tolerance of the company towards minorities, informed the court that the lady was also the cleaning lady of the chied executive officer, thus belieing the claim that the company does not prejudice the Romas)

In all cases of discrimination that were represented by the Bureau we have been faced with the respondent defense that they do employ Romas and in cases of entertainment discrimination with the claim that Roma guests also visit them. To prove this the Roma employee or, in cases of entertainment, the Roma guest is called in to testify. The courts so far have approved the proof in all cases and have paid serious thought to these types of claims coming from the respondent.

It is our point of view that these types of evidence have to be dealt with really carefully and we think it is worthwhile to take the following things into consideration.

The subject of these cases in not whether Romas are discriminated in general, but whether the plaintiff has suffered discrimination during the process that preceeds the establishment of labour relations. The fact that the respondetn employs Romas does not – by itself – acquit him from having to prove that the plaintiffs did not sufer any discrimination. In the case of K. Ernő, for example, the factory was expecting the application of several people but when it turned out that K. Ernő can bring around 30 Roma workers, the director of the company said that he cannot employ so many Romas, as their percentage cannot exceed 10% of all employees. This example is probably not the only one that has happened, but provin git is perhaps one of the most difficult tasks for lawyers.

The declarations handed in to the court cannot be evaluated, as according to the now effective regulations, anyone can can claim to be a Roma or the representive of another minority group, and the fact and of that is not questioned..[9] In this specific case it is still hard to imagine that an employer working on the line would just knock on the door of the CEO and say that he has heard of an unjust trial in process against the company and would like to help by signing the mentioned declaration and having the CEO hand that in at the court as evidence

Relying on our 10 years of experience we can see that in cases such as these it can be declared irrelevant who considers himself to belong to one of the minorities. In relaity the victim of discrimination will be the person whom the outside world, i.e. the perpetrator considers to be Roma or a member of a protected group. Presumption often covers the truth, i.e. it is not likely that a white, blonde guy will be the victim of discrimination, on the grounds that he is a Roma. The definition of discrimination stated in the law on equal opportunities specifies in accordance with this, that „direct discrimination is when a real or alleged member of a group, (…) due to his/her real or alleged characteristics receives different treatement that is worse than that of members or groups of people with the same situation.[10] Criminal law also familiar with discrimination. It was based on this that a judgement was passed in a case reresented by the Bureau, in which the non-Jewish plaintiff was manhandled, because he was thooght to be a Jew.[11] In another one of our cases an Indian American citizen was sent out of an entertainment club, because they thought - based on the colour of his skin – that he was a Roma and no Roma were allowed in the place.[12]

As further example the Roma employee who does not look like a Romas and testifying in the P. Mariann case can also be mentioned. Before the start of the trial two unknown young ladies were waiting in the corridor of the courthouse: a dark-coloured, Roma-looking and a blonde haired girl with lighter skin colour.As besides the legal representative. 2 further employees of the Bureau were also there, they unanimously stated that surely it will be the Roma-looking lady who was called in by the respondent. However, to everyone’s surprise, it was not the lady „choosen” by our colleagues that stepped into the courtroom but the other, blonde girl.