Equinet Legal Seminar 11 October 2010

1. Equinet Legal Seminar 11 October 2010 Collecting evidence – practical shortcomings of the traditional tools of evidence in discrimination cases PhD Bjørn Dilou Jacobsen The Danish Institute for Human Rights

2. Overview • Difficulties of proof in discrimination cases • The EU rules on burden of proof • Means of proof and their pros and cons • Conclusions

3. Difficulties of proof in discrimination cases (1) • Direct discrimination • rarely any direct evidence of discrimination • respondents are generally aware of that it is prohibited to discriminate • the relevant evidence is often in the hands of the respondent • subconscious discrimination

4. Difficulties of proof in discrimination cases (2) Indirect discrimination intentional unintentional the relevant evidence is often in the hands of the respondent

5. The EU rules on burden of proof A rule of presumption - direct discrimination: complainant must show adverse treatment on grounds of sex, race etc. and ‘something more’ - indirect discrimination: complainant must show indirect adverse treatment on grounds of sex, race etc. Solves some problems of proof, but far from all

6. Means of proof (1) • Written documentation (job postings, contracts, advertisements etc.) • pros: highly effective • cons: will rarely show overt discrimination (particularly a problem for equality bodies that only investigate cases on a written basis) • what can be done: guidance to employers and others; allow investigatory equality bodies to obtain oral statements

7. Means of proof (2) Oral statements pros: may often show discriminatory practices cons: difficult to document (word-against-word), due process issues where questioning is carried out by equality bodies what can be done: audio recordings (mobile phone), witnesses, securing confirmation of statement in writing; testimonies in court

8. Means of proof (3) Audio and video recordings pros: highly effective cons: uncertainty about admissibility and privacy issues what can be done: provide information on possibilities of use; establish legal precedents on admissibility

9. Means of proof (4) Situation testing pros: effective in regard to uncovering and documenting discriminatory practices cons: must be carried out correctly (what does it prove?); admissibility issues; privacy issues; cannot be used by inquisitorial equality bodies What can be done: provide guidelines on use; establish legal precedents; carry out general tests to document that discrimination exists and to enter into a dialogue with potential discriminators

10. Means of proof (5) Statistical evidence pros: effective in cases about indirect discrimination; may be part of establishing presumption of direct discrimination cons: often a lack of statistical evidence; data protection issues what can be done: data collection; data collection and data collection

11. Conclusions • Pre-empt evidentiary doubt • Facilitate collection and admissibility of evidence • Combine different types of evidence • Equality bodies play key role