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Situation testing

Using situation testing in the matter of the right to equal treatment and protection against discrimination

Situation testing is intended to be procedure, which serves to ascertain and prove discriminatory activities. It induces a situation, where a member of a disadvantaged group (e.g. an older person, a handicapped person, a Roma) is intentionally faced with discriminatory behaviour without the person, who is expected to commit discrimination, knows that his/her activity is being monitored. It must be clear from the situation to the tested (e.g. an employer, provider of goods or services) that the figurant is a member of a marginalized group.

The Public Defender of Rights may, when fulfilling his tasks relating to the right to equal treatment and protection against discrimination, use situation testing in two ways: when providing methodical help to victims and when conducting a survey.

A. Methodical help to the victims of discrimination

The purpose of situation testing is in this case used to prove discriminatory activities in individual cases. It thus serves to acquire sufficient evidence to be used in subsequent court or administrative proceedings against a specific person committing the discrimination.

What are the conditions of using this method?

In order to ensure correctness and observance of principles relating to the function of the Public Defender of Rights, the Defender and his authorized employees may be present as testing coordinators only. It is thus not possible for the employees of the Office of the Public Defender of Rights to participate in situation testing as testers. Testing as such is conducted by external cooperatives only. These are usually from non-profit organizations, with which the Defender concluded an agreement on cooperation. Evidence acquired during situation testing may be handed over by the victim or the non-profit organization to the Defender, who can assess, whether discrimination occurred.

Is this situation testing legal? Is it not considered provocation?

The Czech courts have already shown in already solved cases that everyone is authorized to verify, whether he/she can execute his/her rights (e.g. judgment of the Supreme Court in Prague from May 27th, 2003, file no. 1 Co 62/2003, published in the Advocacy Bulletin, 2003, no. 11-12, pg. 100-102, the courts similarly acted in matters handled by the Regional Court in Plzeň file no. 19 C 38/2001, or the Municipal Court in Prague, file no. 34 C 66/2001).

If an unauthorized infringement on rights occurs, the claims of the testing persons are identical to a situation, where discrimination would be unexpected. It is however important that the testing person is at the same time a victim of discrimination i.e. that it had real interest in executing the said right; it is not possible that the person is merely pretending the execution of rights. In such case a problem could arise when enforcing the right by court.

Example 1: The Public Defender of Rights was approached by a man with a complaint about discrimination in the area of employment. He stated that he is 40 years old and for the past two years he has been unsuccessfully looking for a job as a sales assistant. He is regularly confronted with the fact that only women are employed as shop assistants. He thus visited more shops, which had a job offer published in their shop windows and recorded five video recordings of discussions with employees of the shops (i.e. conducted situation testing). These have indeed provided him with the information that males are not preferred as shop assistants or that the specific shop employs only women as shop assistants. The Defender observed direct discrimination based on gender and offered the claimant methodical help in filing motions to commence proceeding due to discrimination.

Example 2: The Public Defender of Rights was approached by a non-profit organization representing a male and a female claimant of Roma ethnicity, who were refused treatment by a dentist. Since the non-profit organization became suspicious that the dentist is systematically refusing Roma patients, it conducted situation testing. At first an appointment with the dentist was set up over a telephone and subsequently a meeting in person took place. Both the telephone call and the visit to the consulting room were monitored and recorded. During testing, Roma patients were indeed refused treatment, while testers from majority population were. In this case the Defender observed direct discrimination based on ethnicity.

B.  Conducting a survey

Besides using situation testing within methodical help to the victims of discrimination, this method may be used also to ascertain the occurrence of discrimination in a certain area, without the intention to commence further steps against specific discriminating subjects. The aim is to review possible inequalities or discrimination in various areas of life and to discover its extent.

This research method is most often used to examine the access to employment, goods and services, accommodation and health care. Testing may be effected for various delimited groups of people (e.g. age, ethnic, gender). It may involve situation testing using figurants or correspondence testing, where communication with surveyed subjects is indirect e.g. by e-mail or telephone.

In order for the results to be valid, it is necessary to select suitable figurants and train them, maintain the conditions of testing and perform specific, predetermined number of tests. Strict observance of confidentiality is also kept in mind in respect to the identities of all participants to testing (figurants and tested persons or organizations). The results must be presented in manner preventing identification of any of the parties.

Example 1: In 2006 the French anti-discrimination body HALDE (Haute Autorité de Lutte contre les Discriminations et pour l’Egalité) conducted a survey regarding the access to tenement accommodation from the point of view of ethnic origin and family status. Fifteen trained figurants performed one hundred visits as a reaction to 126 advertisements. All figurants had French citizenship, had a work contracts for an indefinite period of time and their salary was equal to or higher than three times the amount requested as rent. It was discovered that figurants of African origin were invited to view apartments less often than figurants from the majority population and after viewing they were less often offered a contract. In respect to family status, there was no major difference between childless figurants and figurants with children when it came to invitations to view apartments. However, lease contracts were offered to figurants with children less often than to childless figurants.

Source: here 

Example 2: When examining discrimination in job recruitment, Swedish researchers used a correspondence form of situation testing. In reaction to 1 776 job advertisements 3 552 fictive CVs were sent to employers. Job positions, which were being replied to during the research consisted of a representative sample common to the Swedish job market and required various level of education, ranging from zero qualification to university education. Researchers sent to a prospective employer two fictive CVs with identical qualification, but one CV contained a Swedish sounding surname and the other a foreign sounding surname. It was discovered that discrimination is present on all qualification levels and in all fields of employment.

Source: Bursell, M. 2007. What’s in a name? A field experiment test for the existence of ethnic discrimination in the hiring process. Working Paper 2007: 7. Stockholm: The Stockholm University Linnaeus Center for Integration Studies (SULCIS).

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