Fruit of the poisonous tree? Situation testing as a proof in discrimination cases

The article presents an issue of using the results of situation testing in discrimination cases. It consists of two main parts: the first one describes experience of other EU countries in conducting situation testings and using their results in lawsuits. The second one is an analysis of Polish legal regulations in this respect. Situation testing is an experimental technique aiming at proving discriminatory behaviours. It has been developed and conducted in the United States and the United Kingdom from the 1960s, initially in housing and employment sector. Later on it has been adopted in certain European Union states, such as: Belgium, Bulgaria, Czech Republic, Denmark, Finland, France, the Netherlands, Slovakia, Sweden, Hungary and Latvia. France, Hungary and Belgium are examples of the countries where using their results as evidences is regulated directly by the law. But even over there it has been problematic and posed a lot of questions as for the legality, methodology and “moral” aspects of the technique. In Poland the method is not known, nor is it applied in practice. Although the Polish legal system does not provide for the possibility to use in the court the results of the experimental tests, it would not be completely unlikely to do so. Bearing in mind experience of other EU countries where acceptance of situation testing and using its results in the judicial proceedings has not come easily but finally became reality, conducting tests in Poland does not seem impossible. However certain obstacles may appear. Undoubtedly not only judges would play the important role but also lawyers-activists who are invited to conduct such a test, present in the court its results and popularize the idea of situation testing in Poland.