Latest developments in 2019

• Author: Matthias Mahlmann
• Pages: 96-105

96

12LATEST DEVELOPMENTS IN 2019

12.1Legislative amendments

The most important development in 2019 in the field of anti-discrimination law has been

the preparation of a draft anti-discrimination law of the Berlin Senate submitted by the

Senator for Justice, Consumer Protection and Anti-Discrimination, Dr Dirk Behrendt.475The

proposed law, the Berlin Land Anti-Discrimination Law (Land Antidiskriminierungsgesetz)

(LADG),476 implements the European requirements in the area of anti-discrimination law in

the Land law of Berlin, providing in addition an instrument with which affected persons can

enforce the constitutional prohibitions of discrimination. The LADG offers protection against

discrimination based on racist attribution, ethnic origin, gender, religion and belief,

disability, chronic illness, age, language, sexual and gender identity and social status.

Whereas the AGG has so far been limited to employment and private law transactions, the

LADG will provide a comparable protection against discrimination in relation to public law

actions by the administration and public bodies of the Berlin Land. The LADG provides for

a right to file an actio popularis and for an ombudsman. The draft of the Berlin LADG is

currently being discussed in the House of Representatives. Until it has been passed, the

draft law can still be changed in parliamentary proceedings.

Furthermore, the Federal Ministry of Health (Bundesministerium für Gesundheit) (BMG)

has prepared a draft law for the protection against treatments to change or suppress sexual

orientation or self-perceived gender identity (Sexuelle-Orientierung-und geschlechtliche

Identität-Schutz-Gesetz)(SOGISchutzG), prohibiting ‘conversion therapies’.477

12.2Case law

Discrimination on the ground of age

Name of the Court: Federal Labour Court (Bundesarbeitsgericht, BAG)

Date of decision: 19 February 2019

Name of the parties: N/A478

Reference number: 3 AZR 215/18, ECLI:DE:BAG:2019:190219.U.3AZR215.18.0

Address of the webpage: https://juris.bundesarbeitsgericht.de/cgi-

bin/rechtsprechung/document.py?Gericht=bag&Art=en&sid=5303fd1838e1a22a16ad93d

8966b308e&nr=22613&pos=0&anz=1

Brief summary: The case concerns a regulation in an occupational pension scheme, which

excluded from the benefits of this scheme those partners who had married when the

employee was older than 62 years. The wife of a deceased employee who had married

after this age limit filed a suit claiming discrimination based on the ground of age because

she was denied the pension due to this regulation.

The Federal Labour Court argued that a regulation that links the right to benefits from a

pension scheme of a partner of a deceased employee to the marriage being concluded

before a certain age is direct discrimination on the ground of age. It held that such

discrimination is not justified according to Section 10 AGG. In this case, Section 10,

sentence 3, number 4, AGG is applicable, which holds:

‘A difference of treatment on grounds of age shall not constitute discrimination if it

is objectively and reasonably justified by a legitimate aim. The means of achieving

that aim must be appropriate and necessary. Such differences of treatment may

475 For more information about the draft, see in German:

https://www.berlin.de/sen/lads/recht/ladg/materialien/.

476 See in German, Abgeordnetenhaus of Berlin, Drucksache 18/1996, 12 June 2019.

477 See in German in the version of 29 October 2019,

https://www.bundesgesundheitsministerium.de/fileadmin/Dateien/3_Downloads/Gesetze_und_Verordnunge

n/GuV/K/RefE_Konversionstherapieverbot.pdf.

478 In Germany, court decisions do not publish the names of the parties.