The Federal Anti-Discrimination Agency’s research at a glance -

The applicability of testing procedures regarding the burden of proof

Abstract of the expert study

The expert study looks at the possibility of having the results of testing procedures admitted in court as evidence of discrimination. It discusses the legal framework conditions in Germany and other European countries, the prerequisites for and limitations of the consideration of testing procedures.

Authors, title and publication date of the expert study

Alexander Klose, Kerstin Kühn: Die Anwendbarkeit von Testing-Verfahren im Rahmen der Beweislast, §22 Allgemeines Gleichbehandlungsgesetz (2010). (The applicability of testing procedures regarding the burden of proof, section 22 of the General Equal Treatment Act, 2010).

What are testing procedures?

A testing procedure involves scrutinising a person’s behaviour to identify whether or not he or she behaves differently towards (at least) two individuals who differ on one discrimination characteristic, but are otherwise as similar as possible. Testing procedures may be in response to a specific case (reactive) or unprompted (proactive). They can relate to a concrete isolated instance or set out to study, under empirical and social science aspects, the prevalence of discriminatory behaviours in a given region or sector.

The findings

Testing procedures are as yet poorly established as means of evidence

In the European countries under investigation, the results of testing procedures are generally considered as admissible evidence subject to various qualifications. However, the authors do not rate this form of evidence as “well-established”. Prior to this study (August 2010), not a single case in Germany had relied on the result of a testing procedure as evidence under section 22 of the General Equal Treatment Act (AGG) to shift the burden of proof.

Legal constraints of and prerequisites for testing procedures

The authors investigate the admissibility of testing procedures under aspects of competition, criminal and labour law and have identified several limitations that need to be observed, for instance related to the faking of identities and disruptions of operations.

The Federal Court of Justice has ruled that testing measures are generally allowed as long as the test persons act like regular clients or customers. However, they are not allowed if they disrupt or compromise the operation of the company being tested. It is forbidden to take pictures inside the business premises without permission and to use tricks or threats to cause the person being tested to commit an offence.

Documents drawn up for the purposes of a testing procedure are not considered forgeries as long as they are not used for fraudulent purposes in legal relations. Under certain circumstances, a real test person is necessary in order to make out documents.

Labour law allows the use of testing procedures by employers to check whether or not staff observe the ban on discriminatory practices.

Testing procedures and the tasks of the Federal Anti Discrimination Agency

The tasks of the Federal Anti Discrimination Agency include, pursuant to section 27 para 3(3) AGG, the conduct of scientific studies. The authors believe that this research mandate legitimises it to implement testing procedures for social science objectives.

Methodological problems related to the conduct of testing procedures

A difficulty in implementing testing procedures is to control all of the factors other than the tested characteristic that might influence the decision of the person being tested. Ensuring the highest degree of similarity between the test persons and comparability of the test situations were identified as particular challenges. Moreover, the confluence of several characteristics (intersectionality) cannot be ruled out, either.

Applicability of testing procedures regarding the burden of proof

In order for the result of a testing procedure to substantiate a presumable instance of discrimination, possible confounders should be minimised. The validity of the testing result is proportionate to the probability that an instance of unequal treatment was due to discriminatory motives.

Methodological guidance for the implementation of testing procedures

The authors of the expert study offer some methodological guidance on the preparation, implementation and follow-up of testing procedures. Of central importance is the selection and priming of the test persons as well as the documentation of the results. To enhance the neutrality of testing results, the authors recommend that the procedures be standardised, certified and monitored.

Additional information

  • Expert study: “Die Anwendbarkeit von Testing-Verfahren im Rahmen der Beweislast, §22 Allgemeines Gleichbehandlungsgesetz“:
  • Series of expert studies entitled “Forschungslücken schließen“ (Filling gaps in research) commissioned by the Federal Anti-Discrimination Agency: