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04. Anti-Discrimination Laws

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04. Anti-Discrimination Laws

Summary

The General Equal Treatment Act provides comprehensive protection against discrimination on the basis of race and ethnic origin, gender, religion or belief, disability, age or sexual orientation.

Extent of Protection

No discrimination may occur with respect to the conditions for access to employment, to self-employment and to occupation, including selection criteria and recruitment conditions, whatever the branch of activity is and at all hierarchical levels, including promotion. Additionally, all employment and working conditions, including pay, must be free from discrimination.

The General Equal Treatment Act provides protection against different behaviours. The general definition of discrimination therefore includes:

  • direct discrimination;
  • indirect discrimination;
  • harassment;
  • sexual harassment;
  • instructions to discriminate.

Direct discrimination occurs where one person is treated less favourably than another in a comparable situation due to the criteria set forth in the AGG. Indirect discrimination occurs where an apparently neutral provision, criterion or practice puts any persons in a disadvantageous situation compared with other persons, on grounds of racial or ethnic origin, sex, religion or belief, disability, age or sexual orientation, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

Protections Against Harassment

Furthermore, the law protects the employee against harassment, especially sexual harassment; such conduct will fall squarely within the categories of unlawful discrimination under German law.

Harassment occurs, when an unwanted conduct takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment, which is related to any grounds protected under the law. An indication for harassment is the violation of dignity and creation of a hostile environment.

A specific form of harassment is sexual harassment, where the harassment takes place by unwanted conduct related to the sex of a person. This includes in particular unwanted sexual acts or requests to carry out sexual acts, physical contact of a sexual nature, comments of a sexual nature, as well as the unwanted showing or public exhibition of pornographic images.

An instruction to discriminate against a person on any of the grounds referred to above will be deemed discriminatory. Such an instruction shall, in particular, be taken to occur (in relation to Section 2(1) Nos 1 to 4) when someone gives an order or instructs an employee to discriminate against another employee.

Employer’s Obligation to Provide Reasonable Accommodations

In accordance with the law, the employer has several organisational obligations to protect his employees from discrimination at the workplace. The employer is obligated to take the necessary safeguarding measures, point out inadmissible discrimination and protect employees against discrimination from another employee or any third person. Discriminatory behaviour of an employee is considered a breach of the employment contract. In order to protect the victim from discrimination, the employer is obliged to take the appropriate and necessary measures, such as a written warning of the offender, relocating them or terminating their contract.

Also, the employer needs to establish a complaints body for victims of discrimination for pursuing their complaints. The employer must also train its employees in an appropriate manner in order not to discriminate against any other employees.

Remedies

An employee who was discriminated against has the opportunity to register his/her grievances with the company`s complaints body, if the discrimination relates to the employment relationship. Moreover, the employee is entitled to directly pursue all remedies (damages, compensation, etc.) available to him/her under a claim of discrimination.

If the employer is responsible for the discrimination, it is obliged to pay damages or a reasonable compensation. Compensation amounts are, however, relatively low compared to other countries. The employee needs to raise their claim in written form within a period of forfeiture of two months after they became aware of the discrimination. In case of discrimination during the hiring process, only monetary damages are granted by law; there is no right to be given the relevant job. An applicant may be entitled to a compensation of three-monthly salaries even if they had not been hired in accordance with a discrimination-free application process.

Other Requirements

In order to increase the number of women in management positions, a gender quota of 30 percent has been in force since 2016, for new supervisory board positions in companies which are listed or are subject to co-determination on board level.

Any questions

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