The end of discrimination in everyday life seems a long way off. Discrimination is often the result of ignorance. A good reason to learn more about anti-discrimination law.
Not only in the United States do discrimination (keyword: Black Lives Matter) and sexual harassment (keyword: #MeToo) dominate the headlines and political discourse. In Germany, too, the scandal regarding the (alleged) discrimination of the German-Jewish musician Gil Ofarim during a stay at a hotel, the sexism accusations against the former editor-in-chief of Bild, Julian Reichelt, and the interruption of the Bundesliga match between MSV Duisburg against VfL Osnabrück because of "monkey chants" in the stands show how topical the issues still are.
A representative study by the German Federal Anti-Discrimination Agency (Antidiskriminierungsstelle des Bundes), according to which every second respondent with a migration background has experienced discrimination in the last two years, also confirms this. An alarming finding. Nevertheless, the fact that complaints of racial discrimination have increased drastically in the past year at least also shows that discrimination is less often simply accepted by its victims than was the case in the past. While the German Federal Anti-Discrimination Agency received only 1,176 requests for advice in 2019, the number of requests in 2020 increased by around 80 % to 2,101.
However, most discrimination still goes unchallenged and thus has no (legal) consequences. Although increasingly strict legislation, relevant court rulings and technological progress – such as the anti-discrimination platform YANA, where incidents can be reported and free consulting services found via chatbots – give us hope for a world free of discrimination, it is ultimately up to civil society and thus to each and every one of us to fight against the small and large instances of discrimination that occur in everyday life.
Because discrimination affects us all!
"We should therefore claim, in the name of tolerance, the right not to tolerate the intolerant."
Sir Karl Raimund Popper
It is therefore high time to take a look at the legal foundations of anti-discrimination law in Germany. We hope to dispel five misconceptions with this article!
1. In the German legal system, discrimination – understood as unjustified unequal treatment – of any kind is generally impermissible.
Wrong: It is true that the constitution of the Federal Republic of Germany takes a clear position against discrimination with the general principle of equality set out in Article 3 (1) German Basic Law (GG) and with the special prohibitions of discrimination under Article 3 (3) GG (because of sex, parentage, race and religion, among other things). However, only the state is directly required to safeguard the basic rights as "defensive rights of the citizen against the state" (see Article 1 (3) GG: "The following basic rights shall bind the legislature, the executive and the judiciary as directly applicable law"). They apply in private law (as part of the objective system of values) at best indirectly via the general clauses of civil law and the interpretation of indefinite legal terms (so-called radiating effect of basic rights or indirect third-party effect, "mittelbare Drittwirkung", Lüth judgment of the German Federal Constitutional Court, judgment of 15 January 1958 – 1 BvR 400/51).
An impact of the general principle of equality on the private law system was even categorically rejected for decades (with the stadium ban decision of the German Federal Constitutional Court, judgment of 11 April 2018 – 1 BvR 3080/09, however, this principle was recently weakened somewhat and private event organisers were subjected to a prohibition of arbitrary action when exercising their right to enforce house rules; regarding the direct third-party effect of Article 21 of the Charter of Fundamental Rights (CFR) among private individuals, see CJEU in the Egenberger case, judgment of 17 April 2018 – C-414/16). There is a balance to be struck between the necessary protections afforded to citizens against the state, endowed as it is with certain sovereign powers over them, and the ideal that citizens should be free to arrange their affairs without interference. In private law transactions, this includes in particular contractual autonomy as part of the general freedom of action (Article 2 (1) GG): Citizens can conclude contracts with whomever they want and for whatever reason they want – and can also refuse to conclude contracts for the same reasons.
On the one hand, this is correct and important, but on the other hand, an understanding according to which anti-discrimination law only opposes private autonomy as an antagonist is clearly inadequate. The primary aim of anti-discrimination law is not to curtail freedom of contract, but (at least also) to secure it as an equal freedom for all. It thus serves to secure or promote the freedom of the less advantaged, meaning those who could not enter into a contract without it.
This tension has been regulated in Germany since 2006 by the German General Act on Equal Treatment (AGG), which implements four European anti-discrimination directives. Section 7 AGG prohibits discrimination on the grounds of the characteristics referred to under section 1 AGG ("on the grounds of race or ethnic origin, gender, religion or belief, disability, age or sexual orientation"), provides for sanctions in the event of a violation of these prohibitions (claim for damages or compensation according to section 15 (1), (2) or section 21 (2) sentence 1, sentence 3 AGG) and, under certain circumstances, establishes a reversal of the burden of proof (section 22 AGG). In addition, sections 3 (3), 12 (3) AGG and 75 (1) German Works Constitution Act (BetrVG) establish the employer's duty to protect its staff from discriminatory hostility. However, the prohibitions of discrimination and the corresponding sanctions are only effective within the scope of application of the AGG (see section 2 and section 19 AGG) and only with regard to the characteristics of discrimination exhaustively listed therein (see section 1 AGG).
If the AGG is not applicable or discrimination is based on other grounds than those listed in section 1 (e.g. because of [supposed] bad appearance, "antisocial background" or obesity), this is generally permissible. This applies at least as long as the rejection is not, for example, defamatory (in this case, there may be a claim for damages under section 823 (1) German Civil Code (BGB), for example, if the general right of personality is violated).
"Even according to the principles of indirect third-party effect, no objective constitutional principle can be derived from Article 3 (1) GG according to which private parties would in principle be obliged to structure legal relationships in a way that conforms with the principle of equality. In principle, it is up to every individual to determine according to their own preferences with whom they want to conclude contracts and under what conditions."
German Federal Constitutional Court, "stadium ban decision" of 11 April 2018 – 1 BvR 3080/09
2. In working life, direct discrimination is prohibited, but indirect discrimination is permitted.
Wrong: The starting point is section 7 AGG, according to which employees may not be discriminated against because of a reason mentioned under section 1 AGG. Unjustified discrimination is impermissible – not only with regard to the form of the conditions in the current employment relationship (e.g. the wage – keyword: gender pay gap) and to its termination, especially by way of dismissal (section 2 (1) no. 2 AGG), but also insofar as they concern the conditions, including selection criteria and recruitment conditions, for access to [...] gainful employment (section 2 (1) no. 1 AGG) (topic: job advertisement, section 11 AGG).
But when is discrimination impermissible? Here, a distinction must be made between direct discrimination (see section 3 (1) AGG) and indirect discrimination (see section 3 (2) AGG).
Direct discrimination means that one person is treated less favourably than another is, has been or would be treated in a comparable situation on any of the grounds referred to under section 1 AGG (section 3 (1) AGG). Direct discrimination on grounds of sex will also be taken to occur in relation to section 2 (1) nos. 2 to 4 in the event of the less favourable treatment of a woman on account of pregnancy or maternity (clarification by section 3 (1) sentence 2 AGG), since only women can be pregnant or mothers.
Direct discrimination is generally impermissible, but may be justified ("permissible") in exceptional cases. The law provides two special reasons for justification and one general reason for justification (see section 8 (1) AGG on the grounds of "occupational requirements"; see section 10 AGG for different treatment on the grounds of age and section 9 AGG for different treatment on the grounds of religion and belief).
Indirect discrimination, on the other hand, will be taken to occur where an apparently neutral provision, criterion or practice would put persons at a particular disadvantage compared with other persons on any of the grounds referred to under section 1 AGG (section 3 (2) sentence 1 AGG). Examples are the discrimination of part-time workers, who are overwhelmingly women, as well as provisions that make admission to an occupational group dependent on a body height of at least 170 cm, for example, irrespective of gender, and thus actually have a very predominant effect on the female sex. The requirement of "German as mother tongue" in a job advertisement can also indicate indirect discrimination on the grounds of "ethnic origin".
Indirect discrimination is ruled out, however, if the provisions, criteria or procedures in question pursue a legitimate goal and the means of achieving that goal are suitable, necessary and appropriate (see section 3 (2) at the end AGG; this was recently ruled out by the CJEU for the police service in the case of the body height of 170 cm, see CJEU, judgment of 18 October 2017 – C-409/16). If this is the case, justification according to sections 8 ff. AGG is no longer relevant. The standard to be applied in the context of indirect discrimination is thus significantly less strict than the standard for justification in the case of direct discrimination in sections 8-10 AGG. However, this certainly does not mean that indirect discrimination is always permissible.
3. For the employer, the external appearance of its employees is often of great importance; at the same time, the Christian faith enjoys special protection under German employment law. A Catholic hospital can therefore dismiss its Catholic head physician for violating the ban on remarriage. And a receptionist can be instructed not to wear a headscarf while working due to internal company policy.
Wrong: It is true that both of the above facts have in some cases been judged in exactly the same way by the courts of various instances over the years. This is no longer the case, however.
In order to justify this, the hospital used to cite the constitutionally protected right of self-determination of the churches (Article 140 GG in conjunction with Article 137 of the Weimar Constitution), on the basis of which a provision to this effect in the "Basic Regulations of Church Service within the Framework of Church Employment Relationships" (Grundordnung des kirchlichen Dienstes im Rahmen kirchlicher Arbeitsverhältnisse, GrO) is justified under section 9 (2) AGG; such a provision is therefore not invalid under section 7 (2) AGG and a violation of this can constitute grounds for dismissal for reasons of conduct.
For the benefit of the Muslim receptionist, on the other hand, it was argued that the ban on wearing a headscarf constituted indirect discrimination under section 3 (2) AGG and rendered an employer's instruction to this effect (section 106 sentence 1 German Trade, Commerce and Industry Regulation Act (GewO)) under section 7 (2) AGG ineffective, since the freedom of religion under Article 4 (1) GG or Article 10 Charter of Fundamental Rights of the European Union (GRCh) prevailed over the freedom of enterprise under Article 12 (1) GG or Article 16 GRCh in this respect.
This was bitterly disputed for years between the courts of various instances – in the case of the hospital even with the intervention of the German Federal Constitutional Court. In the meantime, the CJEU has provided clarity following submissions by the German Federal Labour Court:
- With regard to the ban on remarriage, the CJEU ruled (judgment of 11 September 2018 – C-68/17) that the Church's decision to impose different requirements on its executives – depending on their denomination – in terms of loyal conduct was open to judicial review. In this case, the national court had to examine whether religion was a "genuine, legitimate and justified occupational requirement" (see also section 9 (1) AGG) in view of the nature of the occupational activity in question and the circumstances of its exercise. In this context, it must depend on the specific activity and its proximity to the evangelising mission of the Church, which is no longer to be examined by the national courts in the form of a "plausibility or abuse review" but a "legal review". At the same time, however, the CJEU indicated that it was rather far-fetched to see the sacrament of marriage of a head physician as an essential requirement for his professional activity, as it is more his medical skills that matter. An assessment which the German Federal Labour Court (BAG) subsequently agreed with, considering the dismissal of the head physician to be invalid due to the lack of a breach of his duties of loyalty (for the related question of the admissibility of a denomination-dependent recruitment practice in church institutions, see the decision in the Egenberger case, CJEU, judgment of 17 April 2018 – C-414/16, which was also critical of church law).
- On the other hand, on referral in the case of the receptionist, the CJEU ruled (judgment of 15 July 2021 – C-341/19 – in the Bougnaoui case) that an internal rule prohibiting workers from wearing any visible symbol of political or religious views at work did not constitute direct discrimination, provided that the rule was applied generally and without distinction. According to the highest European court, an employer may therefore ban the wearing of conspicuous religious symbols such as the headscarf in companies in order to convey an image of neutrality to customers or to avoid social conflicts if an otherwise consistent policy of neutrality is pursued in the company. This applies in any case if the instruction is based on an internal company regulation and the employee is to contact the employer's customers (whose wishes, however, are generally irrelevant, see CJEU in the Achbita case, judgment of 14 March 2017 – C-188/15). In the case outlined, such a regulation and the indirect unequal treatment it entails would thus be justified, does not constitute discrimination and thus not a violation of Article 7 (2) GG, and is therefore to be followed based on the employer's right to issue instructions (section 106 sentence 1 GewO).
4. The AGG prohibits discrimination only in working life. Outside of this (e.g. in tenancy law), unjustified discrimination in private legal transactions is therefore generally permitted.
Wrong: The AGG primarily protects against discrimination in working life. On the one hand, this can be seen in the structure of the Act, the employment law part (section 2) of which comprises twelve paragraphs, while only three paragraphs are devoted to "protection against discrimination in civil law transactions". On the other hand, the vast majority of decisions on the AGG deal with discrimination in the employment context.
However, these facts should not hide the point that the scope of application of the AGG – contrary to common misconception – goes far beyond employment law. According to section 19 (1) AGG, discrimination on almost all grounds referred to in the AGG is not permissible when establishing, implementing, and terminating civil law obligations which either concern a so-called bulk business (no. 1) or a private-law insurance (no. 2).
According to section 19 (1), a bulk business is "an obligation which typically arises without regard of person in a large number of cases on comparable conditions". These are typically contracts in the consumer goods sector as well as standardised services, such as retail, food service or transport.
Courts have ruled, for example, that entry to discos is subject to the AGG despite the discretion of bouncers regarding who to allow in, as it is not the individual person but at most certain negative characteristics (inappropriate clothing, being excessively intoxicated, etc.) that matter to the disco operator. In the case of refusal of entry to a disco because of the colour of one's skin, they affirmed discrimination liable to compensation (Stuttgart Higher Regional Court, judgment of 12 December 2011 – 10 U 106/11), but rejected discrimination in the case of the refusal of a festivalgoer because of his age (German Federal Court of Justice, judgment of 5 May 2021 – VII ZR 78/20).
Apart from these momentary everyday cases, discrimination is a particularly large problem on the residential property market: According to a representative survey conducted by the German Federal Anti-Discrimination Agency in 2019, around 35 % of respondents with a migration background who had been looking for somewhere to live in the past ten years had experienced racial discrimination. So-called testing studies also indicate that people with a Turkish surname, for example, are much less likely to receive an invitation to view a flat than applicants with the same professional status or the same financial circumstances, but with a German surname.
In tenancy law, most of the prohibitions of discrimination under section 19 (1) nos. 1, 3-5 AGG only apply to landlords who rent out more than 50 flats for more than temporary use. If there are fewer than 50 flats, such discrimination is generally permissible. In this case there is no bulk business as per section 19 (1) no. 1 AGG, so only section 19 (2) in conjunction with section 2 (1) no. 8 AGG applies (the number 50 does not apply absolutely, but "as a rule", so the AGG can also apply to fewer flats). However, a special exception applies to the prohibition of discrimination on the grounds of "race or ethnic origin", which applies more generally, see section 19 (2) AGG. With regard to tenancy law, this prohibition of discrimination thus applies irrespective of the number of flats rented out and thus also if only one flat is rented out.
However, not all prohibitions of discrimination apply if the tenancy establishes a special close relationship and relationship of trust (e.g. if parties live on the same property), see section 19 (5) sentence 1 and sentence 2 AGG. Furthermore, Article 19 (3) AGG applies: Different treatment is permissible where it serves to create and maintain stable social structures regarding inhabitants and balanced settlement structures, as well as balanced economic, social, and cultural conditions. Case law requires landlords to have developed a "coherent integration plan" for the selection of tenants in order to appropriately combat social segregation and prevent exclusion (Derleder NZM 2008, 505 [510]).
5. Employees and prospective tenants do not have to disclose information that may result in discrimination on their own initiative. However, if you are asked about your ethnic origin or a planned pregnancy, for example, you must answer the question truthfully.
Wrong: It is true that employees or prospective tenants must answer the employer's or landlord's questions truthfully (so-called duty of truthfulness supplementary to the duty of loyalty that already existed before the conclusion of the contract). Irrespective of the prohibitions of discrimination under the AGG, however, it is generally the case that in the application procedure for a flat or a job, only such questions are permissible with regard to which the landlord or employer has a justified and legitimate interest, and outweighs the interest of the employee or prospective tenant to keep his or her private sphere secret. This is particularly the case if the questions concern the employee's performance or a potential tenant's willingness and ability to perform.
Thus, the German Federal Court of Justice has ruled for tenancy law that
“questions about the person and address of the previous landlord, the duration of the previous tenancy and the fulfilment of the obligations under the tenancy agreement – as well as questions about the income and financial circumstances – [are] in principle suitable to get some idea about the creditworthiness and reliability of the potential tenant” and are therefore permissible. According to Itzehoe Regional Court (judgment of 28 March 2008 – 9 S 132/07), the same applies to questions about the profession, rent debts from previous legal relationships or marital status. In working life, on the other hand, especially job-related questions, e.g. about relevant experience or relevant skills, are considered permissible. Questions about previous convictions, illnesses, drug addiction and infections, on the other hand, are only permissible from the outset if they are functionally related to the employment relationship being entered into. If this is the case and the questions are therefore permitted for the employer or landlord, they must be answered truthfully in the job interview. If the applicant or prospective tenant does not answer the question truthfully, the employer or landlord can contest the contract on the grounds of fraudulent misrepresentation.
If, on the other hand, there is no interest worthy of recognition, the right to informational self-determination is often affected (German Federal Court of Justice, judgment of 28 March 2008 – 9 S 132/07), e.g. because the questions concern the personal or intimate sphere of the applicants' lives (see German Federal Court of Justice, judgment of 9 April 2014 – VIII ZR 107/13). However, they are then free to make untrue statements, so in this case there is neither a breach of duty nor a reason for termination or avoidance (see also German Federal Court of Justice, judgment of 9 April 2014 – VIII ZR 107/13). This is referred to in employment law as the "right to lie" and particularly applies to personal questions, such as the question about a planned pregnancy or trade union membership. If discrimination criteria according to the AGG are affected, the question is not only impermissible, but can also be an indication of discrimination according to section 22 AGG, which can justify claims for damages or compensation if it is not refuted.
In our monthly series "Five Myths" on ESG, sustainability and CSR, we dispel untruths and clichés that you may encounter as a legal practitioner, for example in the field of labour law or compliance. Comprehensive legal advice that looks to the future.
