The definition of discrimination

AuthorMatthias Mahlmann
Pages18-42
18
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

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