General Equal Treatment Act in Germany: help with discrimination

Since 2006, the General Equal Treatment Act (GETA) has provided protection against discrimination. Discrimination occurs when someone is unfairly disadvantaged on the basis of race, ethnic origin, gender, religion, ideology, disability, age or sexual orientation. Discrimination can be conscious or unconscious and is often based on prejudice. It can be overt (e.g. turning down an applicant for a job because of their name) or less obvious (e.g. requirements in job advertisements that have nothing to do with the job). In our article, we explain how the AGG can help in the event of such discrimination.

The most important information in brief:

• The General Equal Treatment Act (AGG) protects all employees, those in vocational training, applicants and former employees.
• The AGG protects against discrimination by the employer or employees on the basis of race, ethnic origin, gender, religion or belief, disability, age or sexual identity. However, the AGG does not apply to discrimination on other grounds.
• The AGG protects you in almost all employer actions, from application to termination of the employment relationship. Exceptions are dismissals that fall within the scope of the KSchG.
• The AGG only protects against ‘unlawful’ discrimination. There are some exceptions in the law when discrimination is justified or permissible.
• Measures agreed upon in the case of unlawful discrimination are invalid. Employees have a right to claim damages and compensation. You must observe certain deadlines when asserting your claims in and out of court.

Who is protected by the General Equal Treatment Act (GETA)?

The General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, AGG) has been in force since 2006 with the aim of preventing or eliminating discrimination on the grounds of race, ethnic origin, gender, religion or belief, disability, age or sexual identity. The AGG protects the following in the employment relationship:

• employees,
• those employed in their vocational training,
• applicants for employment,
• persons whose employment has been terminated.

What does the General Equal Treatment Act protect against?

The General Equal Treatment Act includes a general prohibition of discrimination. According to this, the employer may not discriminate against employees on the grounds of:

• race,
• ethnic origin,
• sex,
• religion or belief,
• disability,
• age or
• sexual orientation.

The employer may not discriminate in the following measures in the employment relationship:

• in selection criteria and conditions of employment,
• in all employment and working conditions,
• in career advancement,
• remuneration,
• termination of the contract and dismissals.

When is there a ‘disadvantage’ in the sense of the AGG?

A disadvantage in the sense of the General Equal Treatment Act is to be examined in two stages:

• Is there less favourable treatment (‘discrimination’) at all?
• Is this discrimination ‘permissible’ by way of exception?

Is there any ‘discrimination’ at all?

The concept of discrimination is clearly defined in the law: discrimination is less favourable treatment than that received by a ‘non-holder of the characteristic’. There are essentially three forms of discrimination:

1. Direct discrimination: one person is treated less favourably than another in a comparable situation on a ground referred to in Section 1 of the AGG. Example: A female employee receives less pay than her male colleague for comparable work. This is direct discrimination on the grounds of gender.
2. Indirect discrimination: a person is apparently disadvantaged by neutral criteria, but on closer inspection it is clear that they are still being disadvantaged for one of the reasons stated in Section 1 of the AGG. Example: Parental leave (initially a neutral criterion) is not included in the company’s rules for length of service. On closer inspection, however, this is usually a case of discrimination on the grounds of gender, since the majority of parents still take parental leave. Indirect discrimination on the grounds of gender.
3. The harassment: unwanted behaviour related to one of the reasons stated in § 1 AGG. The purpose of this is to violate the dignity of the person and to create an environment characterised by intimidation and hostility. This explicitly includes sexual harassment.

Second condition: the disadvantage must not be permissible as an exception

Not every instance of discrimination is automatically impermissible. The General Equal Treatment Act allows for some legal exceptions:

Permissible discrimination in the case of professional requirements

Discrimination is permissible if the reason for the discrimination is an essential and decisive professional requirement due to the nature of the job. The purpose must be legitimate and the requirement reasonable, Section 8 AGG.

Examples:

• Unlawful discrimination: When job ads seek ‘young professionals’ or ‘colleagues with a maximum of 5 years’ experience’. This is discrimination on the grounds of age, without this being a requirement for the job.
• Lawful discrimination: When a job ad requires “very good German” and “good English”, provided this is essential for the job. Then it is not a case of discrimination on the grounds of ‘ethnic origin’.

Permissible discrimination by church employers

Discrimination is permissible if it is based on religion/belief and the employer is a church or other religious community. The reason for the difference in treatment must be a justified occupational requirement, depending on the type of activity, Section 9 AGG.

Example: Unlawful discrimination if a church-affiliated hospital employer discriminates against a senior physician because he does not enter into a church-recognised marriage.

Permissible age discrimination

Discrimination is permissible if the difference in treatment on the grounds of age is objective and reasonable and justified by a legitimate aim. The means of achieving that aim must be appropriate and necessary.

Examples: The law allows the following justifications:

• Differentiation based on professional experience or seniority,
• Definition of minimum age,
• professional experience or seniority requirements for access to employment,
• Maximum age limits for recruitment (e.g. for physically demanding jobs),
• agreement of an age limit for termination of the employment relationship (permissible if linked to standard retirement age)
• consideration of age in the severance payment in a social plan (higher severance payments for older employees due to poorer labour market opportunities, lower severance payments for older employees due to early retirement).

What are the legal consequences of ‘unlawful discrimination’?

Fair and equal treatment should be a matter of course in professional life. Nevertheless, it happens time and again that employees feel discriminated against – whether it be on the basis of their gender, origin or other characteristics. If it turns out that such discrimination is impermissible, the question arises: What legal consequences and claims arise for the affected employee?

Employer measures are invalid

Any measures or provisions in agreements that violate the prohibition of discrimination are invalid.

Right to refuse work in the event of harassment

If the employer fails to take action to prevent harassment or sexual harassment at the workplace or if the action taken appears to be manifestly unsuitable, the persons affected are entitled to cease their work without loss of pay if this is necessary for their protection.

Please note: In practice, exercising this right can be highly risky. It may take some time for a court to rule on the matter. The employer assumes that there is no discrimination. This means that there is a risk of disciplinary proceedings, written warnings, dismissal for refusing to work or other negative impacts on the employment relationship. Therefore, caution is advised. It is better to talk to a lawyer and seek advice. You can also seek the support of your works council or trade union.

Right to compensation and damages

An impermissible disadvantage to the employer constitutes a breach of his contractual obligations. This also applies if the disadvantage was caused by a superior of the person concerned.

1.) The employer is obliged to make good the pecuniary loss incurred, provided that it was the employer’s fault. The person affected must be put in the position he or she would have been in had the discrimination not occurred. This includes, for example, lost profits or the claim to the lost performance. The following are not included in the compensation:

• If the person discriminated against is an applicant for a job or a promotion, he or she does not receive the desired position.
• Legal fees and court costs

2.) In addition to the claim for damages, the employee is also entitled to compensation for non-material damage (i.e. non-pecuniary damage: impairment of personality, honour, etc.). The compensation serves to fully make up for the damage and at the same time to deter future discrimination. When determining the amount of compensation, the court must take into account the severity of the violation, the nature of the impairment or the existence of a repeat offence. This is at the court’s discretion. With a few exceptions, there is no upper limit.

What deadlines do you have to observe?

The claim for damages and compensation must be asserted in writing against the employer within two months.

Start of the period: (1) In the case of an application/professional advancement, the two-month period begins with the receipt of the rejection. (2) In all other cases, the period begins with the knowledge of the employee.

Note: Collective agreements may stipulate different provisions. Therefore, check whether a collective agreement applies to you if the two months have passed.

What can you do about unlawful discrimination?

• General: It always makes sense to talk to your employer or the HR department first. You can seek support from the works council, your trade union or a specialised employment lawyer.
• Right of appeal: You have the right to complain to the relevant company departments if you feel you have been discriminated against by your employer, superior, other employees or third parties on any of the grounds mentioned in Section 1 of the AGG in connection with your employment relationship, Section 13 of the AGG. The employer must investigate the complaint and inform the employee of the result.
• Lawsuit before the labour court: If you decide to take legal action, you must be aware that there is a further legal deadline in addition to the two months for the written assertion of the claim with the employer: A lawsuit for compensation under Section 15 AGG must be filed within three months after the claim has been asserted in writing against the employer.

Frequently asked questions (FAQs)