Discrimination in the workplace is a widespread problem that often starts small, and the psychological strain can steadily increase if you don’t stand up for yourself and assert your rights.
Since many victims do not report workplace discrimination in the first place, experts assume there are a high number of unreported cases. But there are ways to fight back.
Anyone who feels disadvantaged at work should therefore not hesitate to consult a certified specialist lawyer in employment law. After all, neither individual disadvantage nor discrimination should simply be accepted.
After all, the law is clear when it comes to discrimination.
Both the employer’s duty of care and the clear provisions of the General Equal Treatment Act (AGG) must be observed within companies and, in some cases, even as early as the initial stages of establishing an employment relationship.
What is meant by discrimination in the workplace?
Discrimination occurs when individuals or groups of people are treated less favorably than others based on personal characteristics. This applies in particular when these characteristics cannot be changed through one’s own efforts.
Thus, it is prohibited to treat employees less favorably based on their gender, age, ethnic origin, religion, or worldview, or because of their sexual orientation or gender identity.
If, on the other hand, an employee receives a higher salary than his or her colleagues because of better performance, this is not necessarily considered discrimination. The same applies if a job applicant with weaker references than his or her competitors is rejected. Here, too, the unequal treatment is solely attributable to the performance of the individuals involved or the evaluation in the references.
What forms of discrimination exist?
The law distinguishes between direct discrimination, indirect discrimination, and instructions to discriminate in the workplace. Harassment and sexual harassment are also included.
In the case of direct discrimination, an employee is treated less favorably based on one of the characteristics defined in the AGG. A still common example of this is when women receive lower pay than their male colleagues in comparable positions.
Less obvious—and therefore less frequently penalized—are so-called indirect forms of discrimination. These occur when an internal company policy effectively disadvantages a specific group of employees. However, in such cases, be a valid justification for it.
A certified specialist lawyer in employment law can determine for you whether unjustified indirect discrimination exists in a specific case.
In cases of harassment, the behavior typically involves unwanted and degrading conduct by a supervisor or a coworker. Workplace bullying also falls under this category and is prohibited under German law.
Anyone who becomes a victim of discrimination, harassment, or sexual harassment in the workplace should take legal action immediately. This is the only way to effectively counteract the harmful behavior at an early stage.
Causes of Discrimination Against Individuals
Unfortunately, discrimination occurs time and again in everyday work life. It can take many different forms and occur in virtually every industry. Discrimination in the workplace is not always intentional.
It often occurs completely unconsciously, which in most cases is due to a lack of sensitivity or simple ignorance.
However, personal or political motives are also not uncommon. Discrimination does not always originate from supervisors or the company itself. Discrimination against individuals is also not uncommon among coworkers.
In some cases, persistent unequal treatment must also be classified as workplace bullying by coworkers or “bossing” by a supervisor.
Protection Against Discrimination—the General Equal Treatment Act (AGG)
To put a stop to unjustified discrimination against employees, lawmakers have, over time, enacted numerous regulations and laws designed to protect against discrimination.
These are consolidated in the AGG, the General Equal Treatment Act, which took effect on August 18, 2006. In the process, numerous European Union directives were transposed into German law.
When comparing these anti-discrimination provisions with previous laws, the protection afforded to employees has improved significantly as a result. The AGG, however, remains controversial among employers.
Due to the additional requirements, employers are faced with greater bureaucratic and organizational burdens. In many cases, implementation also results in significant additional costs that many companies would prefer to avoid.
While some of the old guidelines have been rendered invalid by the new AGG, a few remain in effect. This is because a revised version was not introduced for every law.
The General Equal Treatment Act (AGG) prohibits employers from engaging in any direct or indirect discrimination without objective justification based on race, ethnic origin, gender, religion or belief, or disability. Every employer is obligated to take appropriate measures to protect against and prevent such discrimination.
If discrimination has already occurred, the employer is obligated to take all necessary steps to remedy the discrimination. For example, the employer may issue a written warning to employees who are engaging in discriminatory behavior or reassign or transfer them to put an end to the discrimination.
In particularly egregious cases, the employee engaging in discrimination may also be terminated.
However, it is not only the General Equal Treatment Act that protects against discrimination in the workplace. Article 3, Paragraph 3 of the Basic Law already grants equal rights to all people. In this case, however, the provision is not a law directed exclusively at employers, but primarily at the state.
For employers, Section 75(1) of the Works Constitution Act (BetrVG) is particularly relevant and decisive.
This section obligates the company and any works council to ensure the implementation of and compliance with the AGG. If violations nevertheless occur, the employer must take appropriate steps to address the discrimination.
Special Protection for People with Disabilities
People with disabilities enjoy special protection in the workplace. The legal basis for this is Section 2 of the Social Code (SGB IX). According to this provision, people are considered disabled if they are mentally, physically, emotionally, or sensory impaired compared to others.
While employers were previously permitted under case law to request information from job applicants regarding whether they have a disability, those affected are no longer required to disclose this information. As a result, they are generally granted the “right to lie.”
In addition, companies with more than 20 employees are required to hire at least 5% people with severe disabilities. This is intended to ensure that people with severe disabilities are not excluded from the workforce.
Employers must also invite a severely disabled applicant to a job interview. Severely disabled individuals also have a special right to work part-time and enjoy special protection against termination.
Discrimination – Enforcing Damages and Compensation
If financial loss has resulted from the discrimination, the employer must compensate for it in full in accordance with the provisions of the AGG if the employer caused the disadvantage intentionally or through negligence.
Those affected are also entitled to monetary compensation even if the financial loss cannot be directly measured, provided that the discrimination and disadvantage have a direct negative impact. This compensation is conceptually similar to compensation for pain and suffering.
In such cases, the employer must be held responsible for the discriminatory conduct of its employees. Such compensation may even be required even if an employment relationship has not yet been established. These are typically cases in which discrimination occurs as early as the application process:
A younger woman is rejected as a candidate or excluded from the application process due to concerns about a potential pregnancy, despite having the same qualifications, or a severely disabled candidate is rejected despite having the same qualifications because the company does not want to be bound to an employee with special protection against termination or fears higher absenteeism due to illness.
In such cases, the affected individuals must prove that they would have been hired for the position had they not been discriminated against. If the employer who posted the job opening cannot exonerate itself, compensation of up to three months’ salary must be paid.
As employment lawyers, we can help you properly assess your specific situation of discrimination, remedy it, and secure compensation. Contact us directly for a brief, free initial assessment over the phone.
