Germany | www.non-discrimination.net

Introduction

The information contained on this page represents the situation as of 31 December 2009 and is a summary of the country report produced by the country expert from the network. The summary can be downloaded here as well.

Contact:
Matthias Mahlmann
E-mail: Matthias.mahlmann@rwi.uzh.ch

Country context

Germany enjoys as other countries a plural society. It has autochthonous minorities, the Danish and the Sorbs, both not very significant in number. The Friesians of German Nationality and the Sinti and Roma of German Nationality are officially recognized as minorities as well. The most important groups of ethnic minorities are, however, immigrants, the so called "Guest workers" and their descendants. There was before the Nazi-Period mostly immigration from Polish people.

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Main principles and definitions

The anti-discrimination law defines direct and indirect discrimination, harassment, and instruction to discriminate following closely the definitions in the directives. Discrimination by association is not explicitly covered.
A provision deals with multiple discriminations on various grounds. It is stated that any of such discrimination has to be justified independently. Positive action is declared to be admissible if the discrimination serves to overcome existing disadvantages based on any of the grounds listed. There is an exception of dismissal from the application of the anti-discrimination law, which has been rendered without effect through case law.

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Enforcing the law

The means of enforcement of the anti-discrimination law are the ones of other areas of law, apart from certain special mechanisms, through the courts. There is a growing amount of case law on various aspects of discrimination. Many aspects have not been settled and some of the case law is contradictory.

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Main Legislation

The Constitution, or Basic Law (Grundgesetz), is of central importance for understanding the German legal framework on discrimination. The German Constitution is, unlike some other constitutions, directly binding on all public authorities. Fundamental rights are part of this directly effective constitutional order. They are binding on the legislature, executive, and judiciary as directly valid law. Under the Basic Law, fundamental rights have become the material core of the legal order in general. They are therefore not only relevant in public law, but permeate other legal spheres as well, such as criminal and private law.

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Material scope

a) General

The constitutional guarantees apply to all state action and through indirect horizontal effect to the relations of private persons. The specialised guarantees apply to their respective field of regulation – public law, labour law, social law, etc

b) The AGG

The scope of application of the anti-discrimination law encompasses labour law, social security, social benefits, education and general civil law, including assurance contracts closely following (in part verbatim) the provisions of the directives in this respect. For unfair dismissal the regulations of the laws against unfair dismissal (especially the Kündigungsschutzgesetz) are supposed to take precedent over the anti-discrimination law. Case law, however, has interpreted the respective provision in a way that the prohibition of discrimination fully applies for dismissal.

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Equality bodies

The anti-discrimination law establishes a federal anti-discrimination agency (Antidiskriminierungsstelle des Bundes) from the moment it entered into force in August 2006, though the body started to be operative in 2007. Its mandate covers all grounds listed in the law, notwithstanding, however, the competencies of specialised governmental agencies dealing with related subject matters. The body is organisationally associated with the Ministry of Family, Senior Citizens, Women and Youth.

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