All employees in Germany, including apprentices and job applicants, are fully protected against discrimination on grounds of gender under the German Anti-Discrimination-Act which is derived from European directives. In particular, it is unlawful to discriminate during the recruitment or promotion process. It is also unlawful to discriminate on grounds of gender in the giving of instructions during the daily working process or in the payment of remuneration. However, statistical surveys continue to demonstrate that men, in general, receive a higher salary even when working in a similar position to women.
Collective agreements and works agreements or other rules with regard to employment conditions, including pension plans, are invalid if they discriminate on grounds of gender.
The prohibition covers direct discrimination as well as indirect discrimination. Examples of indirect discrimination are the different treatment of part-time employees (who normally tend to be women) and differentiations with regard to pregnancy. It is, for example, forbidden not to extend a fixed-term employment contract because of pregnancy.
In exceptional cases, discrimination can be justified if being of a particular gender constitutes a material and determining occupational requirement for the execution of the specific tasks of the employee. For example, the German courts regarded it as justified to exclude men from night work in a girls’ boarding school. Biological differences can also justify a difference in treatment. For example, men cannot work as a wet nurse nor normally sing in a soprano voice. In contrast to this, “customer preferences” or requirements as to the physical strength of an employee do not generally justify discrimination.
An employer is liable to pay damages for a violation of the provisions of the Anti-Discrimination-Act. However, job applicants who have been discriminated against cannot insist on being employed – their remedy is for monetary compensation only. In addition, employees can claim compensation for non-pecuniary damages. If the employer discriminates on grounds of gender in the hiring process, the amount of any compensation payable is limited to three months’ salary if the applicant would still not have been hired had the selection been free of discrimination.
The majority of court decisions regarding discrimination on grounds of gender relate to the job application process. It is therefore very important for employers not to refer to gender during this process – especially in the job advertisement and any letter of rejection to the applicant – and to document the reasons why the hired person has been selected without references to gender. Statements of employers showing that traditional social role allocation influenced the selection process can indicate discrimination due to gender. In this respect the German Federal Labour Court decided that the handwritten comment of an employer “One child, 7 years old!” on the CV of a female applicant sent back with the rejection letter to the applicant may indicate discrimination.
A discriminatory job advertisement, e.g. “female secretary wanted” (“Sekretärin gesucht”), indicates a violation of the Anti-Discrimination-Act. If an applicant proves such indications the employer shall have the burden of proving that he did not discriminate due to gender during the application process. Because of this burden of proof, a practice seems to have emerged of so-called “professional claimants for anti-discrimination” applying for jobs advertised in discriminatory job advertisements with the objective only of claiming compensation, and not because they were genuinely interested in the job. The courts only reject such claims if the claimant does not have the required professional skills or – in very exceptional cases – if the application is for other reasons regarded as a false application.
In recent years, discrimination on grounds of gender in the workplace has decreased in Germany – even though certain differences in the treatment of men and women remain, especially with regard to the promotion of employees. In view of this, the German parliament decided in 2015 to implement a legal gender quota for the supervisory board of listed companies subject to parity co-determination (at least 30% females and 30% males). In addition, the parliament decided, with regard to listed or co-determined companies (including companies subject to one third participation), to impose an obligation on companies to determine their own target figures for female participation in several management levels.