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How can you prove housing discrimination?

Have you been rejected as a prospective tenant? Do you think it is because of your skin colour, income or disability, but have no idea how to prove it?

We will help you gather evidence to check whether you have been a victim of discrimination.

How to collect evidence of housing discrimination over phone?

  1. Call the landlord or real estate agency and apply as a tenant. Record the conversation to gather proof.
  2. On the same day, ask a person or association to call back with a profile that is similar but without the characteristic subject to discrimination. For example, a name considered non-foreign, or not a person with a disability or low income. This person also records the call.
  3. Keep the recordings as evidence if there is a difference in treatment.

How to collect evidence of housing discrimination by e-mail?

  1. Send an e-mail with your personal details to present yourself as a prospective tenant. Keep a copy of the e-mail and any reply you may receive.
  2. On the same day, ask a person you trust or an association to send an e-mail with a fictitious profile that is similar but without the characteristic subject to discrimination. For example, a name considered non-foreign, or not a person with a disability or low income. The e-mail must contain equivalent information and be written in the same way.
  3. If the answer is different, send a new e-mail in your own name to ask if the situation has changed and if the property is still available. This will confirm or rule out any discrimination.

Step-by-step instructions in the event of housing discrimination

Open Close Collecting evidence by phone

Open Close Collecting evidence by e-mail

What evidence is valid?

In the case of court proceedings, the Civil Code stipulates that each party must prove the facts it alleges and all parties must cooperate in the management of evidence. Given the specific difficulties involved in proving discrimination, anti-discrimination legislation has facilitated this proof by shifting the burden of proof. 

Thus, it is up to the accused person to prove that they did not commit the act they are accused of by providing evidence to the contrary, i.e. that the unfavourable treatment is related to some other reason unrelated to a protected characteristic.

Examples:

  • A candidate received the message that the owner had chosen another candidate. He asked a person of Belgian origin to contact the agency, which informed him that the property was still available. The telephone conversations were recorded. Based on the recordings, the court (FR) ruled that there was indeed direct discrimination and that the landlord had failed to prove that the refusal was not related to a non-discriminatory reason. The victim will receive compensation and the real estate agency must publish the decision on its premises and in the bulletin of the Institut Professionnel des Agents Immobiliers (IPI)/Beroepsinstituut van Vastgoedmakelaars (BIV).
  • A person was refused a property because it was already rented out. A friend then called the real estate agency, which asked her "whether her friends were Belgians or foreigners". Based on this testimony, the judge (FR) had a presumption of discrimination and thus there was a shift in the burden of proof. The landlord could not prove the absence of discrimination and was convicted.

Is the recording of a conversation valid?

The validity of using an audio recording as evidence is accepted in discrimination cases and has been confirmed by case law (FR). It is therefore permissible to record a conversation in which you are participating, as long as the use of the recording does not violate the privacy of the other participants. The content of the conversation and the circumstances in which it took place are taken into account.

In this case, the purpose of the recording is to establish the existence of discrimination and the conversation does not concern the participants' private lives, but rather their relationship as prospective tenants and landlords/agents, bankers/clients, etc.

So, there is nothing to prevent its use in court, especially as it is difficult to prove discrimination in any other way.

Are discrimination tests valid?

Testing is used in the fight against discrimination to prove discrimination. It can take different forms:

  • Situation tests:
    • The person who believes they have been discriminated against repeats the process (e.g. applying for housing) and records the conversation or repeats the same procedure via e-mail (to obtain a written record).
    • The person who believes they have been a victim finds a second person with a similar profile. The only notable difference concerns one of the characteristics protected by legislation: for example, one person has a European-sounding surname and the other has an African-sounding surname.
  • Mystery shopping: a person is asked to discriminate (a service cheque office, a real estate agency) and it is observed whether that request to discriminate is granted.

Case law accepts this method of proof as a way of presuming discrimination and shifting the burden of proof, as provided for in the law. Situation tests were validated as a method of proof by the ruling of the Brussels Court of Appeal (FR) and are included in Walloon and Brussels regional legislation.

However, it is important to be vigilant about how this test is conducted. In any case, Unia advocates that individuals or associations use these tests only reactively, i.e. after discrimination has taken place, in order to prove it. On the other hand, Unia favours proactive tests (FR). In Brussels, it is possible to request testing or file a complaint to report discrimination with Brussel Logement.

Tips to ensure a similar fictitious profile

Make sure the fictitious profile used by your acquaintance or the association is similar to your own: 

  • Only the characteristic potentially discriminated against may differ: for example, your nationality, origin, disability or income. 
  • The two profiles may contain very minor differences so as not to arouse suspicion from the landlord or real estate agency: a few years difference in age, a small difference in income level, similar but not identical profession, etc.
  • Some information should be completely identical as it may influence the landlord's decision: the number of people, type of income, desired length of the lease, presence of pets, smoker or not, marital status, etc. Also, if you have told the landlord that you can offer certain guarantees (proof of payment of previous rent, recommendation from a previous landlord, guarantor, etc.), this should be mentioned in both profiles.

It is possible that the landlord or real estate agency will not ask for all this information, but it’s best to be prepared.

What can you do with evidence of housing discrimination?

  • In Brussels and Wallonia: submit a report to Unia and attach the evidence collected.
  • In Flanders: contact the VMRI.