The definition of discrimination

• Author: Matthias Mahlmann
• Pages: 18-42

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2THE DEFINITION OF DISCRIMINATION

2.1Grounds of unlawful discrimination explicitly covered

The grounds of discrimination explicitly prohibited in the main legislation transposing the

two EU anti-discrimination directives (as listed inthe Introduction) are: sex, parentage,

race, language, homeland and origin, faith, religion, political opinion and disability are

explicitly covered by the constitutional guarantee of equality as formulated in Article 3 GG,

which is a major element of the transposition of the directives. As the guarantee includes,

as just mentioned, an open-textured general principle, other grounds are potentially

included as well. The Federal Constitutional Court regards sexual orientation and identity

(including gender aspects) as part of the human personality as protected by the guarantee

of human dignity and the general right to personality.60The guarantees in the Länder

constitutions differ in their details from this list61although this is of no great significance

in practice.62

The AGG covers all grounds from the directives covered by this report (race, ethnic origin,

religion, belief, disability, age or sexual orientation). Sexual orientation is substituted by

the term sexual identity, without this having any discernible legal relevance in practice.

The Equal Treatment of Soldiers Act (Gesetz über die Gleichbehandlung der Soldatinnen

und Soldaten) (SoldGG)63covers all grounds with the exception of age and disability in

Article 1, taking advantage of the exception for military service in Article 3(4) Directive

60 Settled case law, see BVerfGE 49, 286; 96, 56; 115, 1. The right includes finding and cognition of the

identity, BVerfGE 49, 286; 96, 56; 115, 1. The right to a name according to sexual orientation is

encompassed by this right, including for homosexual transsexuals, BVerfGE 49, 286; 96, 56; 115, 1.

61 State/Provision/Ground/Content concerning differences from the federal guarantee of equality: Bavaria:

Constitution of the Free State of Bavaria (Verfassung des Freistaates Bayern) (BayVerf), 15 December

1998, Article 118a; Disability; promotion of equalisation; Berlin: Constitution of Berlin (Verfassung von

Berlin)(VvB), 23 November 1995, Article 10 Section 2; Sexual identity; prohibition of discrimination; Ibid.,

Article 11; Disability; promotion of equality; Brandenburg: Constitution of the Land of Brandenburg

(Verfassung des Landes Brandenburg) (BbgVerf), 20 August 1992, Article 12 Section 2; Sexual identity,

nationality, social background; prohibition of discrimination; Ibid., Article 12 Section 4; Disability; promotion

of equality; Ibid., Article 25; Ethnic minority of the Sorbs; Right to own national identity, language, culture,

schools, participation in legislation regarding Sorbian affairs; Bremen: Constitution of the Free Hanseatic

City of Bremen (Landesverfassung der Freien Hansestadt Bremen) (BremVerf), 21 October 1947, Article 2

Section 2; Social background; prohibition of discrimination; Ibid., Article 2 Section 3; Disability; promotion

of equality; Mecklenburg-West Pomerania: Constitution of the Land of Mecklenburg - West Pomerania

(Verfassung des Landes Mecklenburg-Vorpommern) (VerfMV), 23 May 1993, Article 17a, Article 18; Old

age, disability, ethnic and national minorities and groups; special protection when minority or group consists

of German citizens; North Rhine-Westphalia: Constitution for the Land of North Rhine-Westphalia

(Verfassung für das Land Nordrhein-Westfalen) (VerfNRW), 28 June 1950, Article 13; Religion; prohibition

on denying schooling for religious reasons in state schools in absence of confessional schools; Rhineland-

Palatinate: Constitution for Rhineland-Palatinate (Verfassung für Rheinland-Pfalz) (VerfRP), 18 May 1947,

Article 17 Section 2; Diverse grounds (groups of persons (Personengruppen)); Prohibition of discrimination;

Ibid., Article 17 Section 4; Ethnic and linguistic minorities; Respect (Achtung); Ibid., Article 64; Disability;

protection, promotion of equality and integration; Saxony: Constitution of the Free State of Saxony

(Verfassung des Freistaates Sachsen) (SächsVerf), 27 May 1992, Article 6; Ethnic minority of the Sorbs;

Right to own national identity, language, culture, tradition, schools; Saxony-Anhalt: Constitution of the Land

of Saxony-Anhalt (Verfassung des Landes Sachsen-Anhalt) (VerfST), 16 July 1992, Article 37; Ethnic

minorities; Protection of cultural independence and political participation; Ibid., Article 38; Old age,

disability; protection of disabled and elderly people, promotion of equality; Schleswig-Holstein: Constitution

of the Land of Schleswig-Holstein (Verfassung des Landes Schleswig-Holstein) (VerfSH), 13 May 2008,

Article 5 Section 1, 2; Ethnic minorities, especially Danes and Frisians and Sinti and Roma; Protection of

cultural independence and political participation, protection of Danes and Frisians and promotion of their

affairs; Ibid., Article 5a; protection of rights and interests of people in need of care; promotion of

accommodation; Thuringia: Constitution of the Free State of Thuringia (Verfassung des Freistaats

Thüringen) (ThürVerf), 25 October 1993, Article 2 Section 3; Ethnicity, social background, sexual

orientation; Prohibition of discrimination; Ibid., Article 2 Section 4; special protection of people with

disabilities, promotion of equal participation in social life.

62See Article 31 GG: ‘Federal law shall take precedence over Land law.’ However, Article 142 GG states that,

notwithstanding the provision of Article 31, provisions of Land constitutions guaranteeing basic rights in

conformity with Articles 1 to 18 of the Federal Constitution remain in force. This provision gives Länder

some space for independent guarantees of fundamental rights.

63 SoldGG, 14 August 2006.

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2000/78. However, there are regulations on severely disabled soldiers64 based on the

provisions of the Sections 1(2) and 18 SoldGG.

Other specialised legislation contains slightly modified lists. The main examples are as

follows.

Section 9 of the Federal Civil Service Act (Bundesbeamtengesetz) (BBG)65 repeats the

principle of access to the civil service according to aptitude, qualifications and professional

achievements and prohibits discrimination in access to the civil service on the grounds of

sex, parentage, race or ethnic origin, disability, religion and belief, political opinions,

background, relationships or sexual identity.66 Age (Alter) is not explicitly included,

although it is implicitly covered by other legislation, such as Section 24 AGG.

Section 67 of the Federal Personnel Representation Act

(Bundespersonalvertretungsgesetz) (BPersVG)67 obliges employers and employees in the

public sector to ensure that all employees are treated in conformity with the principles of

law and fairness, and in particular that nobody is discriminated against because of race or

ethnic origin, parentage or other origin, nationality, religion or belief, disability, age,

political or union activities or attitude, sex or sexual identity.

At Landlevel, the legal regulations for civil servants and other public employees were

amended because of a change in the legal regulation of civil servants.68

According to Section 75(1) of the Works Constitution Act (Betriebsverfassungsgesetz)

(BetrVG),69 employers and work councils are under an obligation to ensure that all

employees are treated in conformity with the principles of law and fairness, and in

particular that nobody is discriminated against because of race or ethnic origin, parentage

or other origin, nationality, religion or belief, disability, age, political or union activities or

attitudes, sex or sexual identity. Section 27(1) of the Executive Committees Act

(Sprecherausschussgesetz) (SprAuG)70 contains an equivalent provision for executives.

As the latter regulations list characteristics only as examples, other comparable types of

discrimination are prohibited as well.

The general principle of equal treatment of employees protects employees generally

against unequal treatment without objective reason. It is generally held that discrimination

on the ground of characteristics listed in Section 67(1) BetrVG or Section 75(1) BetrVG

lacks objective reason and can be regarded as unlawful arbitrary treatment. The AGG

confirms this view.

Legislation regulating public and private employment includes several measures at federal

and Land level prohibiting discrimination on the ground of disability.71 There is some Land

64 See the decision by the Federal Administrative Court (Bundesverwaltungsgericht) (BVerwG), 1 WB 8/08, 11

March 2008, ECLI: DE:BVerwG:2008:110308B1WB8.08.0, which clarifies that there is no analogous

application of the AGG in these cases.

65BBG, 5 February 2009.

66 Section 9 of the Federal Civil Service Act reads as follows: ‘Geschlecht, Abstammung, Rasse oder ethnische

Herkunft, Behinderung, Religion oder Weltanschauung, politische Anschauungen, Herkunft, Beziehungen

oder sexuelle Identität.’

67 Germany, Federal Personnel Representation Act, (Bundespersonalvertretungsgesetz) (BPersVG) 15 March

1974.

68 See Annex 1 of this report.

69 BetrVG, 25 September 2001.

70 Executive Committees Act, (Sprecherausschussgesetz) (SprAuG), 20 December 1988.

71 Cf. Section 164(2) SGB IX referring to the AGG. The prohibition of discrimination on the basis of disability

binds the partners to a collective wage agreement (unions and management), Decisions of the Federal

Labour Court (Entscheidungen des Bundesarbeitsgerichts)(BAGE) 108, 333. Land anti-discrimination laws

exist in all German Länder: Baden-Württemberg: Act on Equal Opportunities for Persons with Disabilities

(Landes-Behindertengleichstellungsgesetz) (L-BGG), 17 December 2014; Bavaria: Bavaria Act on Equal

Opportunities, Integration and Participation for Persons with Disabilities (Bayerisches