A high level outline of the obligations that apply in relation to discrimination and harassment in Germany.
The principle of equal treatment and the General Act on Equal Treatment (the ETA) requires that employers must not discriminate against their employees on various grounds. Any provision which breaches the rules contained in the ETA is invalid. The law prohibits discrimination by all employers (public and private sectors), colleagues and third parties and protects all employed people (such as employees, teleworkers and home workers, job applicants, apprentices and ex-employees).
As the employer must provide evidence for the objective reason justifying the discriminatory act, employers should carefully review their work environment from the perspective of local employees and document in complete detail where discrimination claims may occur.
Grounds on which discrimination is prohibited
It is unlawful to discriminate on the grounds of sex, race and ethnic origin, disability, sexual identity, religion and world view, age, part time and/or fixed term status and trade union membership.
Forms of discrimination
The law prohibits direct discrimination, indirect discrimination, harassment and victimisation.
It is also unlawful to issue instructions to discriminate on one of the prohibited grounds.
Direct discrimination occurs where a person is treated less favourably than another one is, has been or would be treated in a comparable situation on any of the prohibited grounds.
Indirect discrimination occurs where an apparently neutral provision, criterion or practice would put people with one of the protected characteristics at a particular disadvantage compared with others, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
Victimisation is where a person is treated less favourably because the employee has exercised their rights in a permissible way (eg by raising a grievance), has refused to comply with instructions that would discriminate or has helped another person to exercise such rights (eg giving evidence on another person’s behalf). Employers cannot subject an employee who has been the victim of harassment to a detriment because they have defended themselves against harassment and have exercised their rights in a permissible manner.
Both harassment and sexual harassment are unlawful and cannot be justified.
Can discrimination be justified?
Discrimination may sometimes be lawful if there are justified grounds for the difference of treatment.
If an employer breaches the general principle of non-discrimination, they must provide evidence that there is an objective reason justifying the discriminatory act. If the employer is unable to provide such justification, the individual will have the right to financial compensation for any loss suffered, whether financial or otherwise.
Prohibited discrimination in practice
Discrimination is prohibited throughout the employment relationship including during recruitment, terms of employment, opportunities for promotion and training etc, contract renewal, benefits, disciplinary action, dismissal and after termination.
Positive discrimination may be permissible if it is an attempt to compensate for existing disadvantages linked to any of the prohibited grounds and if the measures taken are appropriate and reasonable.
The prohibition applies where harassment occurs at the place of work or elsewhere in a work context (eg a company party) and where the harassment is by colleagues, superiors, subordinates, the employer itself or by third parties (such as a customer). An employee who has been subject to harassment has a right to complain as soon as he/she subjectively feels harassed.
An employer must protect employees from harassment in the workplace and must take all necessary measures to prevent harassment occurring. In individual cases the employer should investigate complaints thoroughly, issue a warning, reallocate work, transfer or dismiss the offender, alternatively transfer the harassed employee.
An employer is potentially liable for any acts of discrimination by an employee against another employee in the course of employment. Employers are under an obligation to take all necessary measures in order to prevent or eliminate discrimination on one of the prohibited grounds.
Diversity training for staff
While there is no absolute legal requirement to conduct diversity training for staff, a lack of diversity training may harm a defence in discrimination proceedings and it is therefore recommended that employers require employees to attend special training sessions.
A person who believes that he/she has been subjected to discrimination or harassment in the employment arena can bring a claim before a labour court. There are no minimum length of service requirements in order to bring a claim.
Unlawful discrimination on the grounds set out above amounts to a breach of contract and an employee may be able to bring a claim for damages against the employer. Such a claim for damages will cover any material loss incurred by the employee. An employer will not be liable for damages if they can prove that the breach of duty was not their fault although actions by third parties who are subject to the employer's instructions will be attributed to the employer in accordance with general principles of civil law. An employee can also claim reasonable compensation for any non-financial damage suffered. Such claims may arise irrespective of whether the employer is at fault. Finally, employees can refuse to perform their work duties without losing their entitlement to be paid if the employer does not take appropriate steps against harassment.
Further details relating to discrimination and harassment in Germany are available from our International Employment Issues (IEI) microsite here.
This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.