Answer ... The most important legal provisions protecting employees from discrimination and harassment are set out in the Anti-discrimination Act, which was enacted in August 2006. This act is based on several EU directives, including Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, although its provisions go beyond those of EU law.
The aim of the Anti-discrimination Act is to provide comprehensive protection against discrimination on the grounds of racial or ethnic origin, sex, religion or belief, disability, age or sexual orientation (Section 1). Employees are protected from both direct and indirect discrimination (Section 3).
Direct discrimination occurs when one person is, has been or would be treated less favourably than another person in a comparable situation because of an inadmissible characteristic of differentiation. In the case of direct discrimination, the discriminatory act is based specifically on a ground for discrimination (eg, a woman is not hired just because of her sex).
Indirect discrimination occurs when rules, criteria or procedures which appear to be neutral may in fact place certain persons at a particular disadvantage because of an inadmissible characteristic of differentiation, unless those rules, criteria or procedures are justified by a legitimate objective and are an appropriate and necessary means of achieving such legitimate objective. One example is the unjustified exclusion of part-time workers from certain benefits; indirect discrimination can then result from the fact that considerably more women are employed part time than men.
Answer ... The individual grounds for discrimination set out in the Anti-discrimination Act protect the following groups or classifications:
- Race or ethnic origin: This applies to groups of people who may be perceived as foreign – for example, on the grounds of skin colour, language or nationality.
- Religion or belief: ‘Religion’ includes every religious or denominational affiliation, as well as membership of a church or religious community (eg, Judaism, Buddhism).
- Sex: The female and male sex, pregnancy and disadvantages in connection with transitioning are all protected. According to a 10 October 2017 judgment of the Federal Constitutional Court (Case 1 BvR 2019/16), there is a third gender that cannot be assigned as either male or female: since 1 January 2019, intersexual individuals can be entered as ‘inter’ or ‘divers’ in German civil status registers.
- Age: Persons are protected from age discrimination irrespective of their age; in particular, no minimum age is required for protection under the Anti-discrimination Act.
- Sexual identity: This applies, in particular, to heterosexual, homosexual and bisexual people.
- Disability: A ‘disability’ is a limitation which is particularly due to physical, mental, spiritual or psychological impairments, and which constitutes an obstacle to the participation of the person concerned in society and therefore also in the workplace.
Answer ... An employer has various organisational obligations in this regard. For example, it is obliged to design job advertisements (Section 11 of the Anti-discrimination Act) in such a way that they do not inadvertently violate the prohibition against discrimination (eg, gender-neutral advertisements). It must also take appropriate preventive measures to minimise the risk of discrimination in the workplace (Section 12 of the Anti-discrimination Act), particularly through vocational training and further education, and work towards its elimination. In addition, if an employee violates his or her obligations under the Anti-discrimination Act, the employer must take appropriate, necessary and proportionate measures to prevent such discrimination, such as a warning, implementation, transfer or dismissal.
Answer ... Employees who believe that they have been or are being discriminated against have the right to complain to the employer’s competent officer – for example, the works council (Section 13 of the Anti-discrimination Act). The officer must examine the case and inform the employee of the result of its investigations.
Answer ... The employee may claim compensation or damages. In the event of breach of the prohibition against discrimination, Section 15 of the Anti-discrimination Act stipulates that the employer is obliged to compensate for the resulting damage if it is responsible for the breach of duty. In the case of damage that does not constitute property damage, the employee can demand appropriate monetary compensation. This claim is independent of fault.
The employee must assert his or her claim in writing within two months. In addition, a claim for compensation must be filed with the labour court within three months of the claim being made in writing.
Answer ... The employee can claim damages and compensation for pain and suffering. The bases for the employee’s claim are set out in the Civil Code (Sections 823, 826 and 831). The injured legal interest usually relates to health, the body, property or the general right of personality.
Compensation therefore primarily takes the form of revocation of the defamatory allegation, omission of the infringing act or reimbursement of treatment costs for physical or mental health damage. A claim for damages for pain and suffering may also be considered, to compensate for non-material damage caused by violation of the general right of personality or health. The amount of compensation owed will depend on the extent of the fault and the nature and intensity of the impairment.