Czech ombud responds to critics about Romani discrimination findings: Test cases are a serious approach
The Czech Public Defender of Rights, Anna Šabatová, issued a press release about discrimination against prospective Romani tenants on 22 December 2014. There was no greater response to her findings at that time.
Now, however, she is facing a wave of resistance, allegations stemming from a general ignorance about administrative practices, court decisions, and legislation. The ombud says she welcomes the current discussion and believes that better understanding of the problem of discrimination will keep intolerance from spreading further; news server Romea.cz is publishing the ombud's press release in full translation below:
Has the Public Defender of Rights made a mistake by pointing out the illegal procedures of real estate offices?
Situational testing, which has been incorrectly called a kind of provocation, is a serious approach that is customarily used to find evidence of discriminatory behavior that is ongoing, especially when there is no other way to prove the behavior is taking place. Such testing is decidedly not an example of intentionally creating a situation that would otherwise not have occurred (without the previous discriminatory behavior of the subjects being tested) or of creating a situation that exists for the sole purpose of causing the tested subjects to commit wrongdoing.
The Public Defender of Rights is obliged to provide the victims of discrimination with methodological aid in filing proposals for the initiation of proceedings on the basis of discrimination. If the Public Defender were to fail to familiarize the victims of discrimination with a procedure that is essential to protecting their rights before the courts, then that would violate the Public Defender Act; among other means, she does this through situational testing, and if she were to fail to communicate this procedure to victims (for example, through specialized NGOs) she would also be breaking the law.
Given their experiences of discrimination, Romani people who were actually seeking housing did not want to also participate in the telephone testing . That is why an NGO staffer not seeking housing (a Romani woman) decided to perform this testing on her own initiative.
That staffer also filed an antidiscrimination lawsuit after the fact. She did not consult this matter with the Public Defender of Rights beforehand, even though she had the legal right to do so.
The Public Defender of Rights must, therefore, reject the allegations that the Romani woman was hired to do this testing and paid by the Office of the Public Defender of Rights. The Public Defender of Rights is also obliged by law to comment on the only disputed question of the case, which will naturally be decided by the courts, and that is the question of whether harm can actually arise to a person who, while she does bear a feature that others have discriminated against her for, is only testing her right to equal treatment.
In addition to methodological aid to victims, the law requires the Public Defender of Rights to publish recommendations and reports on questions related to discrimination. Critics of the conclusions drawn by her Office in this regard are convinced that a property owner can do whatever he or she wants as long as he or she does not break the law.
This is precisely what is at issue: The Antidiscrimination Act clearly bans discrimination from the moment a property owner offers accommodation to the public. Discrimination is also banned by the Charter of Fundamental Rights and Freedoms, which clearly states that property owners are obliged to uphold the Charter and the critics of the Public Defender of Rights are neglecting this obligation.
What is the purpose of the ban on discrimination? The purpose is prevent people from judging others solely on the basis of their age, disability, ethnic origin, nationality, race, religion or belief, sex, sexual orientation or worldview.
The Public Defender of Rights is not claiming that those leasing housing must lease their property to just anyone, in this case, to Romani tenants. Rather, she is emphatically warning that a broker or landlord who rejects a prospective buyer or tenant without researching them further, merely and only for an unlawful reason (i.e., age, disability, ethnic origin, nationality, race, religion or belief, sex, sexual orientation or worldview) is breaking the law.
In the case at issue, the unlawful reason for rejecting the prospective tenant was ethnic affiliation. The Public Defender of Rights repeats that the real estate offices rejected the prospective tenant the moment they ascertained the person was Romani.
These offices knew nothing else about the applicant prior to taking their decision to reject her. Some critics are now referring to the presumption of innocence and warning that innocent persons who cannot defend themselves should not be condemned.
Those criticisms are wild allegations that merely support discrimination. Without a shared burden of proof, discrimination could never be prevented by the courts, because proving someone else's motivations is impossible.
Nothing prevents a person charged with discrimination from proving that he or she rejected someone for a lawful reason. If, however, the person is incapable of providing such evidence, then he or she has perpetrated discrimination.
The Public Defender of Rights believes that the concerns being expressed that there might now be a flood of lawsuits and "abuse" of this right are odd, to say the least. People who have been discriminated against on the housing market do not want to undergo protracted disputes in court with uncertain outcomes.
What these people want is to satisfy one of their basic human needs, that of housing. The result of such a court case might be compensation for the harm caused to their dignity, but the Romani people with whom the Public Defender of Rights has been in contact in other such cases have told her that it would be enough for them if brokers and landlords stopped prejudging them just on the basis of their ethnicity and names.
The Public Defender of Rights is warning that, currently, "decent citizens" are referring to their problematic experiences with some Romani people as an excuse for denying the rights of all Romani people. Next time, however, these unjustified violations of rights might happen to families with children, to persons living with disabilities, or to persons older than 60.
In other worlds, while a landlord naturally can choose whom to lease to, he or she must actually evaluate prospective tenants as individuals. That means landlords are not permitted to base their decisions solely on notions that are founded in their antigypsyist prejudices.
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