Applicability
of testing procedures
- Factsheet on the research project -
Authors: Alexander Klose, Kerstin Kühn, published by the Federal Anti-Discrimination Agency (FADA) Year of publication: 2010
Brief overview
Furnishing proof of discrimination in court is a special challenge. Section 22 of the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz - AGG) governs the reversal of the burden of proof. It says that a presumed instance of discrimination requires the defendant to prove that no discrimination as defined in the AGG has taken place. The presumption of discrimination can be reasonably based, inter alia, on the results of testing procedures.
This expert opinion sets out the current legal situation in Germany and other European countries and draws on the experience of experts and practitioners to formulate recommendations for the possible application of this procedure by the Federal Anti Discrimination Agency and for furnishing proof on the basis of section 22 of the AGG.
Main results
A testing procedure involves testing a person's behaviour to find out if he or she behaves differently towards (at least) two persons who differ on one discrimination characteristic but who are otherwise as similar as possible. Testing procedures can be conducted in response to a concrete incident (reactively) or not (initiatively). They can refer to a concrete isolated instance or be designed to investigate the extent of discriminatory behaviour in a region or line of industry empirically and from a social science angle.
Testing procedures not firmly established as evidence so far
While the results of testing procedures are generally considered as admissible evidence in the European countries studied - though subject to several limitations - the authors do not find that this form of evidence is already well-established. Up until the time of the study (August 2010) there was not a single court case in Germany where the result of a testing procedure was drawn on as evidence to shift the burden of proof as stipulated in section 22 AGG.
Legal limitations and prerequisites of testing procedures
The authors have looked at the admissibility of testing procedures under competition, criminal (forgery of documents - section 267 of the German Criminal Code, fraud - section 263 of the German Criminal Code) and labour law aspects and see certain restrictions that must be observed, e.g. on faking identities and disrupting operations in progress.
Germany’s supreme court of justice has decided that testing procedures are basically admissible as long as the test persons behave like normal customers or clients. However, they are not admissible if they disrupt or impair the operations of the company being tested. Inadmissible are the unauthorised taking of photographs inside the premises and tricking or threatening the person tested into committing an offence.
Documents made out for the purpose of a testing procedure are not regarded as forgeries as long as they do not serve to commit any fraud in legal transactions. Under certain circumstances, a real test person is necessary to make out documents.
Testing procedures used by employers to check their staff's compliance with discrimination bans are permissible under labour law.
Testing procedures and the remit of the Federal Anti Discrimination Agency
The remit of the Federal Anti Discrimination Agency includes, under section 27 (3) (3) AGG the conduct of scientific studies on discrimination. The authors believe that this research mandate entitles it to carry out testing procedures with a social science objective
Methodological problems in conducting testing procedures
A difficulty in implementing testing procedures is to control all confounders that might affect the decision of the person being tested apart from the studied characteristic. A particular challenge is to identify test persons that are as similar as possible and test situations that are as comparable as possible. Even the confluence of several characteristics (intersectionality) cannot be ruled out.
Applicability of testing procedures related to the burden of proof
For the result of a testing procedure to corroborate an alleged instance of discrimination, other confounders should be minimised. A testing result is all the more meaningful the more likely an instance of unequal treatment is due to a discriminatory motivation.
Options for action
Methodological guidance for the conduct of testing procedures
The authors provide some methodological guidance on the preparation, implementation and follow-up of testing procedures. Of central importance are the selection and preparation of test persons and the documentation of results. To further reduce bias in testing procedures, the authors recommend that the procedure be standardised, certified and monitored.
