1. 1. What are the main laws on discrimination in the workplace in your jurisdiction and what type of conduct does it cover?
  2. 2. Which characteristics are protected by these laws (is sexual orientation a protected characteristic?), and what type of employment relationships are covered – employee, worker, platform worker?
  3. 3. What remedies are available to an individual if they are subject to discrimination in the workplace, and what level of compensation might be awarded?
  4. 4. What steps such as policies, training etc (if any) are employers required to put in place to prevent discrimination in the workplace?
  5. 5. Is a D&I Policy a legal requirement or best practice?
  6. 6. Are there any risks in not having a local D&I policy? Any reputational risks and ESG consequences?
  7. 7. Are employers required to report on pay transparency or gender/ethnic/disability pay gaps?
  8. 8. Are there any data protection rules that affect the processing and retention of diversity data and what do they say?
  9. 9. Are there any quotas at board level or below, and if so what do they relate to?
  10. 10. Are there any corporate governance rules that relate to D&I rules that relate to D&I, and what do they say?

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Germany
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1. What are the main laws on discrimination in the workplace in your jurisdiction and what type of conduct does it cover?

The main German law against discrimination in the workplace is the General Act on Equal Treatment (AGG). It covers direct and indirect discrimination by the employer based on a person's race, ethnicity, sex, religion and other beliefs, disability, age and sexual identity.  

Moreover, the principle of equal treatment under German labour law states that when taking favourable measures towards its employees, the employer may not treat any individual employee less favourably than other employees without an objective reason.

Pursuant to section 7 of the German Transparency in Wage Structures Act (EntgTranspG), remuneration for the same work or work of equal value cannot be agreed or paid at a lower rate than for an employee of the opposite sex based purely on that characteristic. The regulation covers direct and indirect discrimination by the employer on the basis of sex.

2. Which characteristics are protected by these laws (is sexual orientation a protected characteristic?), and what type of employment relationships are covered – employee, worker, platform worker?

 

  1. Characteristics and legal relationships protected by the General Act on Equal Treatment
    The protected characteristics under the German General Act on Equal Treatment (AGG) are race, ethnicity, sex, religion or other beliefs, disability, age and sexual identity. Sexual identity is defined as the sexual orientation of a person.The AGG protects employees and people who are treated as such because of their economic dependence as well as trainees and job applicants. 
    In addition, the AGG includes freelancers when it comes to hiring and promotions. 
    Platform workers are mostly freelancers and, as such, are only protected as mentioned above. However, if platform workers are in fact employees, they fall within the scope of and are protected by the AGG.
  2. Characteristics and legal relationships protected by the principle of equal treatment
    The principle of equal treatment protects all characteristics that can make employees different.It protects only employees.
  3. Characteristics and legal relationships protected by the German Transparency in Wage Structures Act (EntgTranspG)The German Transparency in Wage Structures Act (EntgTranspG) protects employees from discrimination based on gender with respect to remuneration.It protects employees and trainees.

3. What remedies are available to an individual if they are subject to discrimination in the workplace, and what level of compensation might be awarded?

  1. Remedies pursuant to the German General Act on Equal Treatment (AGG)
    The remedies pursuant to the AGG include remedies for financial damage as well as remedies for immaterial damage. Compensation can be up to three times regular salary for an applicant who did not get the job they applied for due to discrimination.
     
    Otherwise, the amount of compensation is not stipulated by law and is thus at the discretion of the court.
  2. Remedies pursuant to the principle of equal treatment 
    If the employer violates the principle of equal treatment, the employee discriminated against can demand to be treated in the same way as comparable employees who are treated more favourably.
  3. Remedies pursuant to the German Transparency in Wage Structures Act (EntgTranspG)If the employer violates the German Transparency in Wage Structures Act (EntgTranspG), the employee discriminated against can demand to receive the same payment as equivalent employees of the opposite sex.

4. What steps such as policies, training etc (if any) are employers required to put in place to prevent discrimination in the workplace?

As mentioned above, employers have a duty to protect their employees from discrimination at work. To fulfil this duty, they are free to decide what measures they want to take (if any). 

Creating policies to prevent discrimination and training employees are measures that can be implemented relatively swiftly and without much effort. Therefore, internal policies regarding discrimination and regular staff training are now standard.

A D&I Policy is not legally required, but is now a best practice. Furthermore, the German Transparency in Wage Structures Act (EntgTranspG) requires companies to justify not having such a policy.

6. Are there any risks in not having a local D&I policy? Any reputational risks and ESG consequences?

The absence of a D&I policy does not automatically result in damage to the employer's reputation or ESG consequences. However, because this policy is standard, we recommend its implementation. 

7. Are employers required to report on pay transparency or gender/ethnic/disability pay gaps?

  1. Reporting obligations pursuant to the Commercial Code
    Pursuant to sections 289b-289f of the German Commercial Code (HGB), companies are required to report on how the company complies with the goals of CSR. This includes reporting what measures have been taken to ensure gender equality in the workplace. If companies do not publish this non-financial report, they can be fined pursuant to section 334 (1) no. 3 of the German Commercial Code (HGB).
  2. Reporting obligations pursuant to the German Transparency in Wage Structures Act
    Besides that, employers are required to report on pay transparency when an employee makes use of his or her entitlement pursuant to section 10 of the German Transparency in Wage Structures Act (EntgTranspG). Employees can only request information in establishments with a workforce of usually more than 200 employees under the same employer. Apart from that, employers with a workforce of usually more than 500 employees must report on the measures they are taking to ensure gender equality and evaluate their effectiveness. Companies that are bound by or apply a collective bargaining agreement are required to prepare a report every five years. Other companies must prepare a report every three years.

8. Are there any data protection rules that affect the processing and retention of diversity data and what do they say?

Pursuant to Article 9 para. 1. General Data Protection Regulation (GDPR), the processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation shall be prohibited.

However, Article 9 para. 2. GDPR stipulates exceptions from this rule that allow processing.

The data can be stored as long as needed to achieve the purpose of the processing.

9. Are there any quotas at board level or below, and if so what do they relate to?

  1. Obligatory gender quota 
    Since August 2021, listed companies are required to appoint at least one man and one woman to the board of directors if the board of directors has more than three members. In case of a failure to comply with that, an appointment of a member of the board in violation of this rule shall be void. Furthermore, 30% of the supervisory board members of these companies must be women.This also applies to European listed companies (SE).
  2. Voluntary quota
    In companies that are either listed on the stock exchange or fall under the scope of the German Codetermination Act (Mitbestimmungsgesetz), the board of directors is required to set a quota of women for the upper management levels under the board of directors. For listed companies, this applies to the supervisory board and the next level of management.If the board sets the quota at zero or does not set any quota at all, it must explain this decision. If the board fails to do so, it will face fines.

10. Are there any corporate governance rules that relate to D&I rules that relate to D&I, and what do they say?

There are no corporate governance rules.