Thematic feature - implementation of the EU framework equal treatment Directive
This article examines the German situation, as of August 2003, with regard to the implementation and impact of the 2000 EU Directive establishing a general framework for equal treatment in employment and occupation, which seeks to combat discrimination on the grounds of religion or belief, disability, age and sexual orientation
The EU Directive establishing a general framework for equal treatment in employment and occupation (Directive 2000/78/EC) was adopted in November 2000 (EU0102295F). The Directive seeks to lay down a general framework for combating discrimination, as regards employment and occupation, on the grounds of: religion or belief; disability; age; and sexual orientation. It is to be implemented by the EU Member States by 2 December 2003 (with a possible later deadline for the provisions on age and disability discrimination, if Member States see this as necessary).
A Community Action Programme to combat discrimination 2001-6 was also adopted in November 2000 (EU9912218F). It supports activities combating discrimination on grounds of racial or ethnic origin, religion or belief, disability, age or sexual orientation. Its priorities are: analysis and evaluation, developing the capacity to combat and prevent discrimination, and raising awareness.
In August 2003, the EIRO national centres in each EU Member State (plus Norway), were asked, in response to a questionnaire, to assess how the framework equal treatment Directive is being implemented in each country, and the responses of the state and social partners. The German responses are set out below (along with the questions asked).
What was the legislative situation and the policy position of the state as at December 2000 (ie when the Directive was adopted) concerning employment discrimination in the areas of: age; disability; religion or belief; and sexual orientation?
At the time of the Directive's adoption, several aspects of protection against discrimination were covered by Germany’s statutory provisions and this remains the case. These are, essentially, dealt with only by the general clauses of the German Constitution (Grundgesetz, GG) and the general Civil Law Code (Bürgerliches Gesetzbuch, BGB). However, there are certain specific laws that deal, for example, with access to public employment or with discrimination at the workplace, or prohibit racial and religious discrimination.
The German Constitution provides for equal treatment before the law, and makes illegal any discrimination based on a number of grounds, including race, nationality, ethnic origin, disability, belief or religion. Article 3.3 states that: 'No person shall be favoured or disadvantaged because of sex, parentage, race, language, homeland and origin, faith or religion or political opinion. No person shall be disadvantaged because of disability.' Article 3.1 provides a principle of equality, in that: 'All people are equal before the law'. This constitutional principle guarantees equality before the law in the sense that a statute may not be applied differently in identical situations. It prohibits arbitrary action by the state, so that no one may suffer prejudice as a result of the exercise of state authority, unless there are material reasons adequately justifying differential treatment. Individual citizens who feel that their basic rights have been prejudiced by public institutions can bring a constitutional appeal before the Federal Constitutional Court (Bundesverfassungsgericht). The judgments of the Federal Constitutional Court are legally binding on any public authority. including other courts. Similar provisions may be found in the constitutions of some of the German regional states (Länder).
Although there is no special, comprehensive legal act dealing with discrimination in Germany, the principle of equality also has significance in private law, though here the principle competes with the right to individual and contractual freedom as guaranteed by Article 2.1 of the Constitution. In labour law, the principle of equal treatment plays an important role as it prohibits employers from excluding individual workers or certain groups of workers from the generally applicable provisions of employment contracts, as well as prohibiting employers from putting such workers at a disadvantage compared with other equivalent workers. With regard to the public sector, the Constitution requires recruitment and promotion decisions to be taken only on the basis of the criteria of performance, qualifications and aptitude. Therefore, the Federal Civil Services Code (Bundesbeamtengesetz) prohibits 'differentiation' on the basis of, amongst other grounds, religion and origin. These principles are echoed in the Civil Service Codes relating to the selection of applicants.
Moreover, the Works Constitution Act (Betriebsverfassungsgesetz, BetrVG) regulates the principles for dealing with employees in private sector companies in which there is a works council- ie those with at least five employees, who have elected a works council. No person working in such enterprises may be discriminated against. If employees feel that they are being discriminated against and, as a result, lodge a complaint with the employer, the latter is obliged to investigate the complaint. If the employer considers the complaint justified, it must take the necessary action to remedy the situation. However, in accordance with constitutional requirements, the Act does not apply to enterprises and organisations that are directly and predominantly of a political, charitable, educational, academic or artistic nature, or that serve to report information or express an opinion, insofar as this would conflict with the nature of the said enterprise or organisation. Moreover, the Act does not apply to religious communities and their charitable or educational institutions. Finally, the Act is not applicable to discrimination in recruitment: it applies only to the discriminatory treatment of current employees. In cases not covered by the Works Constitution Act, employees who (believe that they) have been discriminated against at their workplace can only invoke the employer’s general obligation to take care of its employees (special regulations apply to soldiers).
The situation in late 2000, with regard to the four grounds of discrimination covered by the EU framework equal treatment Directive was as follows (and largely remains so - see below).
- Age. Under the Protection against Dismissal Act (Kündigungsschutzgesetz, KSChG), older workers with longer service with their employer receive stronger protection than younger employees with shorter service when it comes to implementing the social criteria for redundancy. Various measures in the Social Law Code (Sozialgesetzbuch, SGB) are often regarded as positive discrimination in favour of older people - eg the SGB provides for bonuses to be paid to firms that hire unemployed people aged 55 or older, or provide further training measures. According to the Works Constitution Act, works councils have the duty to promote the employment of older workers within the establishment. The employer must supply comprehensive information to the works council in good time to enable it to discharge its duties effectively (TN0010201S).
- Disability. As well as the constitutional provision that 'No person shall be disadvantaged because of disability' (this sentence was added in 1994), statutory provisions exist. At the federal level, the Federal Ministry of Labour and Social Affairs (Bundesministerium für Arbeit und Soziales, BMAS) is responsible for vocational integration and for laws relating to people with disabilities. Among other measures, special centres for vocational rehabilitation exist that are financed and run by a range of organisations including the federal government. Legal obligations and rights are set out within the framework of the Severely Disabled Persons Act (Schwerbehindertengesetz, SchwbG) and, accordingly, refer only to those workers who are registered as severely disabled or to those in a similar situation. Employers are obliged, for example, to examine every vacant post in terms of its suitability for a worker with a severe disability. The Act specifies a particular duty to integrate 'special' categories of workers, such as those who need special assistance or who incur exceptional expenses, as well as those who have not completed vocational training, and those aged 50 or above. Moreover, seriously disabled people enjoy a special level of protection against dismissal pursuant to the above-mentioned Act. According to the Works Constitution Act, the works council has the duty to promote the rehabilitation of disabled people and other people in special need of assistance. The employer must supply comprehensive information to the works council to enable it to discharge its duties (TN0102201S).
- Religion or belief. Freedom of religion is guaranteed for individuals and religious societies in Article 3 of the Constitution. In principle, dismissal on religious grounds is prohibited. Dismissing an employee because of his or her religion constitutes, for example, an infringement of Section 138 of the Civil Code, if interpreted in the light of the prohibition of religious discrimination set out in Article 3.3 of the Constitution. The BGB requires contracts that are in conflict with morality or public order to be made null and void. A dismissal of an employee because of his or her religion would, thus, not be legally valid. Under Article 140 of the Constitution, in combination with Article 136 of the Weimar Constitution (Weimarer Reichsverfassung), the churches are given the right to self-determination with regard to their own affairs. This constitutional privilege has serious implications for the legal relationship between the churches and private persons, such as those employed by one of the churches. Until now, German churches have still been free to reject job applicants who belong to a different religion. Indeed, churches can dismiss their employees on the grounds that a violation of the employee's duty of loyalty to the body of beliefs of the relevant church has occurred; such violations might include, for example, an employee leaving the church while being employed by it or by an employee marrying a divorced man or woman. According to the Federal Constitutional Court, it does not make a difference if the employee performs 'church-typical' tasks.
- Sexual orientation. There is no provision in the Constitution that explicitly protects people because of their sexual orientation (though homosexuality is no longer a crime, and the age of consent is the same for homosexuals and heterosexuals, at 14 years). There is no special anti-discrimination legislation at the federal level, though legal recognition of same-sex partnership was implemented in 2000. In July 2000, the government submitted an anti-discrimination bill intended to place same-sex relationships within a legal framework and, in November 2000, an Act on Registered Partnerships was passed.
How has the state responded to the Directive since December 2000 in terms of:
- legislation concerning discrimination and draft legislation on the grounds of age, disability, religion or belief and sexual orientation (please specify details of title, date and main provisions and exclusions). With respect to age and disability, please specify if the state has opted to take the option of extending the deadline for implementation of the Directive and, if so, on what grounds;
- broader policy response, consistent with the Action Programme, for example: support for anti-discrimination activities; analysis of the extent and nature of the discrimination; arrangements for monitoring and enforcement; positive action; information and dissemination activities; and promotion of social dialogue and anti-discrimination collective agreements.
In the current state of the law, the grounds or elements that constitute discrimination are rarely the subject of an explicit provision - for example, there are explicit regulations neither to compel a party to refrain from discriminatory practices nor to provide the legal basis for a compensation claim. In response to these omissions, a special Anti-Discrimination Act for the Civil Code was proposed in 2001 to encompass all grounds that constitute discrimination under Article 13 of the Treaty establishing the European Community (ie sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation). This took the form of a bill for a Law for the Prevention of Discrimination in Private Law issued on 10 December 2001 by the Federal Ministry of Justice (Bundesministerium der Justiz, BMJ) (Diskussionsentwurf eines Gesetzes zur Verhinderung von Diskriminierungen im Zivilrecht). The proposed legislation thus adopted the comprehensive approach of the EU framework equal treatment Directive, while also seeking to implement Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (EU0006256F). Unlike the framework Directive, however, the area of employment law was initially excluded from the draft Act's scope of application. A separate regulation was to be drawn up for this at a later stage. In its statement on the legislative intent of the draft bill, the legislator expressly acknowledged an intention to anchor the concept of non-discrimination more firmly in the public mind by using the statutory standardisation of certain practices as a means by which to educate people.
The aim was to enact legislation during the summer of 2002, but the draft was withdrawn at the beginning of the summer. Therefore, the anti-discrimination bill, which went well beyond the actual requirements contained within EU legal measures, failed to pass through parliament, and the July 2003 deadline for adopting the race Directive (2000/43/EC) has been missed. However, according to a Council of Europe commentator: 'this draft did not foresee a comprehensive anti-discrimination statute and would not have transposed the Directive in its entirety, as it referred only to matters falling directly within the competence of the Federal Interior Ministry. It thus included no rules in the field of employment law or any field of public law and made no provision for the creation of discrimination bureaus.' So far, no new draft has been presented. The legislative project will, however, be pursued again in autumn 2003 in order to avoid missing the deadline for implementation of the EU framework Directive.
The federal government enacted a new Works Constitution Act that came into force on 28 July 2001, which includes provisions seeking to tackle discrimination in employment and occupation (DE0107234F). Notably, the legislation substantially broadens the responsibilities of works councils. For example, the reformed Act contains various clauses designed to buttress, legally, the fight against racism. According to Section 75 of the Act, no person working in the enterprise may be discriminated against because of - among other grounds - his or her religion or belief. Moreover, the new Act includes an 'equality quota' (Gleichstellungsquote), which provides that the gender which is in the minority within the workforce must be represented by at least a corresponding share of works council members .
With regard to anti-discrimination in sexual orientation, an Act on Registered Partnerships entered into force in August 2001. However, the law was only finally on 17 July 2002, when the Federal Constitutional Court (Bundesverfassungsgericht) decided that registered partnerships were in accordance with the Constitution. Among other matters, same-sex couples now explicitly have the same rights to employment-promotion measures as those applicants who are in a heterosexual partnerships.
Possibly in line with the provisions of the EU framework Directive that allows differential treatment on the grounds of age where objectively and reasonably justified by a legitimate aim, new legislation came into force on January 2003, that implements many of the proposals of the Hartz Commission on labour market reform (DE0209205F). For instance, the age threshold for special fixed-term contracts with older employees, the validity of which rests on the employee’s age upon the commencement of the employment relationship, is incrementally being reduced from 58 to 52 between now and 31 December 2006. December 2006 is the final deadline for implementation of the EU framework Directive's provisions on age discrimination. However, according to one commentator, even if Germany takes up the option of an extended period of implementation for the Directive's age and disability provisions, the biggest problem will be 'the elimination of differences in treatment on grounds of age. Many schemes contained in statutes and collective agreements are differentiating according to age (remuneration, fringe benefits etc). Whether and how far this really is to be changed due to the Directive is unclear' ('Recent developments in German and European labour law', Manfred Weiss, in The changing contours of German industrial relations, Walther Müller-Jentsch and Handörg Weitbrecht (eds), Rainer Hampp Verlag, Munich and Mering, 2003).
A recent draft bill for a Law for Mainstreaming People with Disabilities, aims at eliminating discrimination against disabled people and seeks to achieve a 'life without barriers', while a recent initiative called 'Internet without barriers' is especially addressed at people with disabilities
Social partner response
What have been the views and policy response of the social partners to (a) the Directive and (b) its transposition into national law? How has social dialogue proceeded on the issues covered by the Directive? Have there been any collective agreements on the issues covered by the Directive since December 2000 in terms of age, disability, religion or belief, or sexual orientation (please give examples, including reasons and bases for introduction)?
Employers’ organisations are critical of the EU framework equal treatment Directive. It is argued that labour market problems, such as age discrimination, should be within the competence of national-level initiatives. In particular, the Confederation of German Employers’ Associations (Bundesvereinigung der deutschen Arbeitgeberverbände, BDA) argues that, while it is true that arbitrary discrimination is harmful, it is no longer a serious problem in Germany. According to the BDA president, Dieter Hundt, the planned German anti-discrimination law 'is a project of unrealistic, missionary and ideological bureaucrats ... What appears harmless at first sight, is in truth a lot of new red tape and dynamite for the German economic order.' In particular, it is claimed, the draft anti-discrimination bill, should it become law, will annul freedom to conclude contracts and private autonomy in some areas, and this will be detrimental not only to other basic rights, but to the German economy as well.
The German Federation of Trade Unions (Deutscher Gewerkschaftsbund, DGB) regards an anti-discrimination law as a means to achieve a discrimination-free society. Therefore, DGB is seeking comprehensive provisions which should include, among other measures: a fundamental prohibition of discrimination; a reversal of the burden of proof in order to relieve people who are being discriminated against of this onus; a specific right for associations, including trade unions, to take legal action against discrimination (Verbandsklagerecht); and better institutional structures and networks to support and advise people who are victims of discrimination.
It has been argued that, as a result of the EU framework Directive 'employers will have to take greater care to ensure that they create a work environment that adheres to the principle of equal treatment. This not only concerns the way that employees treat one another, but also such issues as remuneration and the selection of job applicants.' However, specific anti-discrimination measures do not appear to be a very important topic in German collective agreements. Sectoral agreements on pay and other matters generally include rules that are identical, independent of religion, sexual orientation or gender. An exception is age (see above): some sectoral agreements, such as in public services, the metalworking and electrical industry and the chemicals industry, apply seniority rules with regard to dismissal protection and payments.
What has been the impact of any initiatives in your country in the areas covered by the Directive? Are there monitoring arrangements in place, and if so, what experiences do they report in response to the Directive?
The EU framework equal treatment Directive and the subsequent national implementing legislation undoubtedly have great symbolic significance. The focus in the German public debate has mainly been on both the framework Directive and the race Directive together and not separately. In June and July 2003, EU anti-discrimination measures and plans received considerable attention and were the focus of much media attention - partly because Germany missed the deadline to transpose the race Directive into national law, and partly because of reports of internal European Commission discussions of further measures to combat sex discrimination (in areas such as outlawing stereotypical presentations of men and women in the media, or pension, insurance and tax inequalities).
Resistance by the churches, which would lose part of their abovementioned current special exemptions under the planned anti-discrimination law, may contribute to making the German implementation of the EU framework Directive difficult.
Finally, Chancellor Gerhard Schröder has stated, with regard to the forthcoming German anti-discrimination law, that he wants to avoid the creation by legislation of a 'bureaucratic monster' that could be regarded as a new hindrance by business. (Lothar Funk, Cologne Institute for Business Research, IW)