The German Anti-Discrimination Law of 2006 - A small step?

Table of Contents

1. Introduction

2. The German Anti-Discrimination Law
2.1. History and Origin
2.2. Scope and Coverage
2. 2.1. Impact on the Workplace und the Employment Law
2. 2. 2. Impact on other Legal Relationships under the Civil Law
2.2. 3. Assertion of Rights

3. Anti-Discrimination Law: Positions
3.1. Opponents
3.2. Proponents

4. Anti-Discrimination Law: Status Quo and Outlook

5. Conclusion

1. Introduction

German parliament has passed a General Equal Treatment Act (AGG)^[1] on August 18, 2006, which is publicly called the Anti-Discrimination Law. This new legislation is the required implementation of four European Union (EU) Equal Treatment Directives into one concatenated national law aimed at providing protection against discrimination due to race, ethnic origin, gender, religion, worldview, disability, age or sexual identity. Generally, the law, which is intended to largely circumvent or abolish discrimination, covers the following areas: working life (e.g. wage, remuneration, promotion, dismissal etc.), membership of a union (US Fed News, 2006), social security and benefits, vocational training, education, the supply of goods and services that are available for the public including housing space and questions subject to civil law (AGG, 2006).

Germany implemented the General Equal Treatment Act, ensued by controversial discussion, mainly because of pressure from the European Court of Justice (ENAR, 2006, p.5), which prior to the instigation of the anti-discrimination legislation threatened the German government with penalties of 900,000 EUR per day if it failed implementation by the end of 2006 (Laaroussi, 2006).

This paper attempts to point to the relevance and implication of the new legislation. While focusing on the emergence and context of the Anti-Discrimination Law, it will be illustrated that the legal framework is only a first small step toward equal and fair treatment in Germany, but is not fare reaching enough to bring about substantial change for discriminated people. In order to establish understanding of the legal situation the history and origin of the AGG, as well as its connection to European Union legislation will be outlined followed by a description of the Act’s coverage, impact on labor and civil law and the gain of legal right for discriminated groups. Furthermore, the main arguments of both proponents and opponents of the Act will be summarized and assessed. In addition, the status quo will be indicated together with problems of the current legislation. With view to the scope of the legislation, this paper will close with a general evaluation; will point to the significance and necessary improvements of the German law to fight discrimination, and intends to capture the mood surrounding this new legislation.

2. The German Anti-Discrimination Law

2.1. History and Origin

Generally, the German AGG forms the legal foundation to prohibit discrimination by warranting that unequal treatment for reasons that infringe a given ban is automatically unlawful and, hence, supplements the general principle of equality before the law and the labor-law principle of equal treatment (eurofound.eu.int, 2006). The main source of the Anti-Discrimination Law, which makes discrimination on the grounds of sex, descent, race, language, homeland and origin, creed, religious beliefs, birth out of wedlock, or membership of a particular collective industrial organization illegal, is Article 3 of the German Basic Law^[2]. Further foundations are regulations like the ban on any discrimination against nationals of other EU Member States compared to citizens of Germany, in labor law the principle of equal rights (Civil Code § 611a, 612(3)) and, lastly, the law prohibition disciplinary treatment (Civil Code § 612a) (eurofound.eu.int, 2006). Prior to AGG legislation there was no comprehensive protection against discrimination in the workplace and in the context of other legal contracts, and only discrimination due to gender was legally forbidden (DGB §§ 611a, arbeitsrecht.de, 2006).

However, the German Anti-Discrimination Law is composed of four single European Directives, concerning the “field of application of the principle of equal treatment in the workplace, for men and women as regards access to employment, vocational training and promotion, and working conditions and equal treatment as regards access to and supply of goods and services” (Die Bundesregierung, 2006), and prohibiting discrimination due to race, ethnic origin, gender, religion or worldview, disability, age or sexual identity. The first of which called the Racial Equality Directive 2000/43/EC, employs the principle of equal treatment between people regardless of racial or ethnic origin, protects against discrimination in employment, vocational training, education, social security, healthcare and access to goods and services. Furthermore, this directive encloses definitions of discrimination, harassment and unfair treatment, and provides victims of discrimination with the right to appeal against the discriminating party through judicial or administrative procedures. Additionally, the Racial Equality policy defines the burden of proof between the appellant and the respondent in civil and administrative cases and includes provisions for the EU Member States to establish an authority to offer assistance to victims of discrimination and endorse equal treatment. The second EU directive that forms a basis for the German Anti-Discrimination Law is the Employment Equality Directive 2000/78/EC, which “[i]mplements the principle of equal treatment in employment and training irrespective of religion or belief, sexual orientation and age in employment and training” (European Commission, [a]). The Employment Equity Directive, further, necessitates employers to reasonably accommodate for the needs of disabled persons qualified in for the position in question, while allowing for restricted exceptions of equal treatment, for example by permitting specific promotions of younger or older workers into the labor market or in cases where religious organizations want to preserve their ethos and thus have restrictions on placements (European Commission, [a]). In addition, the so-called Gender Directive (2002/73/EG) as the third policy forms part of the German Anti-Discrimination Law and implements the principle of equal treatment for men and women with regards to access to employment, vocational training and promotion, and in view of working conditions (European Commission, [b]). Likewise, Directive 2004/113/EC adopted in December 2004 combats discrimination based on gender outside of the employment field and implements “the principle of equal treatment as regards access to and supply of goods and services” (European Commission, 2006), such as housing, banking and insurance and built the fourth foundation for the German law against discrimination.

All off these EU directives have to be incorporated into national law by the EU Member States; the rationales behind them being that protection against discrimination is a core element of human rights policy, while it is also advantageous for the economy to integrate minorities and disadvantaged groups (Die Bundesregierung, 2006). Thus, the deadline for including the set of laws on racial equality, as well as the policy prohibiting discrimination based on sexual orientation, religion or belief, disability and age was 2003. In addition, the Gender Directive had to be implemented by the end of 2005, whereas the fourth only has to become national law by the end of 2007 (European Commission, [a]). With three out of four deadlines having passed, Germany was the second last EU country to implement the predetermined legislative framework (Laaroussi, 2006).

2.2. Scope and Coverage

The German law covers employees, job applicants, former employees, and partners in a legal contract (e.g. reseller-buyer or both parties involved in an insurance contract), as well as parties of certain public contracts. Thus, the content of the bill exceeds the minimum standards necessitated by the EU Directives “by applying legal provisions against discrimination on the grounds of religion, disability, age or gender not only in the sphere of labor law, but also of civil law” (EMUC, 2006, [b]). Everybody, additionally, must be treated equally not just irrespective of race, ethnic background or gender as stipulated by the EU, but of ideology, mental or physical handicap, age and sexual identity (DGB, 2006 [b]). By including those additional characteristics the German government intended to avoid differentiation between distinctive categories of discrimination (DGB, 2005). Moreover, the Anti-Discrimination Law goes beyond others in Europe in that defendants bear the burden of proof if victims take legal action (e.g. bouncers can become liable if they do not permit entrance to visible minorities into a discothèque and it would be up to them to prove non-discrimination) (The Economist, 2005). However, the prohibition of discrimination is not applicable in family and succession law disputes (AGG § 19 No. 4 &5). Additionally, areas of the private realm, the police and most of the public sector such as schools and kindergartens are excluded from protection under the General Equal Treatment Act as well (DGB, 2006 [b]).

Nevertheless, the legislation covers direct and indirect discrimination, harassment and instructions to specific behavior (Die Bundesregierung, 2006). While direct discrimination describes the disadvantaged treatment of one person over another in a comparable situation, such as the formulation of job requirements that exclude certain groups from applying for a position (e.g. the prerequisite of excellent German writing skills to filling a cleaning job), direct discrimination, accordingly, refers to seemingly neutral regulations, criteria etc., an example of which is the disadvantaged treatment of a woman due to her pregnancy (DGB, 2006 [a]).

Nonetheless, the General Equality Treatment Act is not anticipated to enforce a blanket ban on discrimination between members because of differences (eurofound.eu.int, 2006), since it is argued that there can be plausible reasons for differential treatment. An exception embedded in the law is that employers can raise an objection that the unequal treatment is justifiable in certain individual cases. Hence, not every case of unequal treatment is tantamount to illicit discrimination. The Act’s intention is rather to thwart unequal treatment, which is predominately based on the differential characteristic of a person (US Fed News, 2006).

2. 2.1. Impact on the Workplace und the Employment Law

Special emphasis has been placed on the reinforcement of equal treatment in the workplace. Accordingly, differential treatment can be vindicated if it, thereby, corrects existing discrimination by adequate means. Thus, if there is a plausible reason for unequal treatment it might not be considered illegal discrimination (Die Bundesregierung, 2006). In this context, discriminative treatment due to gender is only admissible if the sex is an indispensable presupposition for a particular job profile (§ 8 No. 1 AGG, 2006), such as the requisite to be a female actor for a feminine role. In this regard again, the employers carry the burden of proof, while principle of commensurability applies. Moreover, it is for example permitted to enforce a maximum age limit for positions in particular lines of work (US Fed News, 2006), and age related unequal treatments could be justified if they are objectively appropriate and strive for a legitimate goal. Additionally, differing treatment on the bases of religion or the worldview are only exceptionally permissible, and the ban on discrimination based on worldview does not apply to civil law cases, which complies with the existing legal position of the employment law. Consequently, it is likely to be a legal discrimination if a Muslim is not employed in a catholic kindergarten. With reference discrimination due to belief, the Federation of German Trade Unions (DGB)^[3] already criticized that religious institutions cannot be made liable for discrimination under the new law if they for example choose a concierge on the basis of religious affiliation (Roßocha, 2006).

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^[1] Allgemeines Gleichbehandlunggesetz

^[2] Grundgesetz: Basic Constitutional Law of the Federal Republic of Germany

^[3] Deutscher Gewerkschaftsbund