Due to the large number of refugees now living in Germany, protection against race discrimination has recently become an issue of greater importance.
Under the German Anti-Discrimination-Act, which is derived from European directives, all employees in Germany, including apprentices and job applicants, are legally protected against discrimination on grounds of race or ethnic origin. In particular, it is unlawful to discriminate during the recruitment or promotion process. It is also unlawful to discriminate on grounds of race or ethnic origin in the giving of instructions during the daily working process or in the payment of remuneration.
The aim of the German Anti-Discrimination-Act is to protect employees and applicants as comprehensively as possible against ethnically-motivated discrimination. However, defining the term “race” is complicated because the German legislature does not accept the existence of “races” as such. The aim of the legislation is to protect employees and applicants from racism which also covers discrimination due to prejudices connected with alleged races. Consequently, the term “race” in this context includes, for example, skin colour or eye shape (e.g. “Asian” or “European” eye shape).
“Ethnic origin” refers to a group of human beings connected due to the same culture, origin, history or the “feeling of togetherness” (e.g. Sinti and Roma, Lusatian Sorbs or German-Russians). In contrast to this, discrimination due to nationality is not legally prohibited, but a requirement that an employee be of a particular nationality may amount to unlawful indirect discrimination on grounds of ethnic origin if belonging to a particular ethnic group is the primary reason for the discrimination and the nationality is only a pretext.
The principle of non-discrimination does not cover discrimination for failing to have a good command of a particular language. However, for example, the requirement for a very good level of German language in a job advertisement can indicate indirect discrimination on grounds of ethnic origin. Such a requirement can only be justified if a very good command of the language constitutes a material and essential occupational requirement for the execution of the specific tasks of the employee.
In a recent decision a German regional labor court considered that a job advertisement with the requirement “German as a native speaker” indicates discrimination due to ethnic origin as – generally speaking – a native speaker is a person who has learned the particular language during childhood in the parental home without additional education. Therefore, job applicants who aren’t native speakers would be excluded without reason from the hiring process even though they may speak German fluently. In particular – pursuant to the court decision – the requirement “German as a native speaker” cannot equate with the requirement “perfect German”. A discriminatory job advertisement – as in this case – indicates a violation of the Anti-Discrimination-Act. As a consequence, the employer has the burden of proving that he did not discriminate due to ethnic origin during the application process. In the described case the court decided that the employer had to pay monetary compensation of EUR 3,200.00.
The majority of court decisions regarding discrimination on grounds of race or ethnic origin relate to the job application process. It is therefore very important for employers to draft the wording of job advertisements very carefully and without reference to any grounds of discrimination. The same applies with regard to any letter of rejection to the applicant.
With regard to the liability to pay damages for a violation of the provisions of the Anti-Discrimination Act, we refer to our post on the topic “What protection from discrimination do employees have on grounds of gender in Germany?” in November 2015 (https://www.globalworkplaceinsider.com/2015/11/what-protection-from-discrimination-do-employees-have-on-grounds-of-gender-in-germany/). These rules apply with regard to all grounds set out in the German Anti-Discrimination-Act.
Notwithstanding the fact that discrimination on grounds of race or ethnic origin in daily life may unfortunately have increased in Germany due to the large number of refugees, court decisions relating to such discrimination are still rare in Germany. Even though a possible reason for this may be the fact that a high proportion of affected persons do not initiate court proceedings, this is something which may change in the future.