Federal Anti-Discrimination Agency

Evaluation: 10th anniversary of the General Equal Treatment Act

Year of issue 2016
date of issue 2016.08.09

Federal Anti-Discrimination Agency presents evaluation / Lüders: Protection against discriminations has to become more efficient

Ten years after entry into force of the General Equal Treatment Act (German abbreviation: AGG), the Federal Anti-Discrimination Agency is in favour of a reform of this Act.

Their argumentation is based on the results of an independent evaluation body according to which gaps in protection should be closed so that people can take more effective action against discrimination. In concrete terms, the experts support e.g. the prolongation of the time limits within which affected persons have to claim their rights. Moreover, organisations should be able to represent affected persons in court.

"The introduction of the AGG was a milestone", said the head of the Federal Anti-Discrimination Agency, Mrs Christine Lüders, when the evaluation was presented. "Since then, each and every person in Germany has had a right to equal treatment in working life and routine business dealings. Yet, when people want to enforce this right, the obstacles frequently are too high. The protection against discriminations has to become more efficient." According to a survey by the Federal Anti-Discrimination Agency, almost one in three of those questioned has experienced discrimination in the past two years. Since 2006 more than 15,000 people have turned to the counselling team of the Federal Anti-Discrimination Agency.

The General Equal Treatment Act had entered into force on 18th August 2006. It aims at preventing or eliminating any discrimination on grounds of racism or ethnic origin, gender, religion or belief, disability, age or sexual orientation. The main point of emphasis is the protection against discrimination in employment and profession, but in addition the AGG also includes provisions on the protection against discrimination in civil law affairs.

The Büro für Recht und Wissenschaft in Berlin was commissioned to carry out the evaluation, and the legal academic, Professor Dr Christiane Brors (University of Oldenburg), was asked to provide scientific research support in this context. Within the scope of a jurisprudential analysis, the past decisions of courts as well as existing rules of international law, Community law and constitutional law were evaluated. Moreover, lawyers, advisers, judges as well as organisations were interviewed about their experience, gaps of protection and the need for reform.

Key results:

Time limit for the enforcement of claims to be extended from two to six months
Currently, people who have experienced discrimination have to assert their claims for damages and/or compensation within a time limit of two months in written form. Advisory practice has shown that many of those affected failed: They hesitate to reach the difficult decision of going public with a discrimination or they have not been sufficiently informed about their rights. Beyond that, the time limit of the AGG is considerably shorter than in the case of other claims such as e.g. the infringement of the personality right. Therefore, the evaluation suggests an extension of the time limit to six months.

Right to sue for anti-discrimination associations
Those affected often shy away from describing their experiences of discrimination as only claimants in court and from enforcing their rights. For the purpose of an efficient legal protection it would thus be useful to expand the legal position and the powers of the anti-discrimination associations by a so-called representative action and a right to class action, so that associations may litigate on behalf of those affected. This has already been done successfully in other fields, as e.g. environmental law. In the opinion of the evaluation team, the mandate of the Federal Anti-Discrimination Agency should be extended at the same time: This includes, inter alia, a right to inspect the files and a right to obtain information as well as the entitlement to support affected individuals in court through comments and legal opinions when they file complaints. In addition, it is suggested to introduce a so-called right to file a general action in the public interest in cases of fundamental importance.

Increased protection in cases of sexual harassment
According to the General Equal Treatment Act, sexual harassment is only prohibited at the workplace, but not where it originates from e.g. landlords or when it happens to a customer in a shop. The protection against sexual harassment should be extended beyond the workplace to all spheres of life mentioned in the General Equal Treatment Act. At the same time, the evaluation includes an appeal to the Federal Laender to also regulate the protection against sexual harassment at universities.

Reasonable accommodation: Increasing accessibility
In Germany, accessibility for persons with disabilities is still uncommon in many places. However, it should be pointed out that the nation is obliged under the UN Convention on the Rights of Persons with Disabilities to provide "reasonable accommodation" in working life and in the field of private law. The evaluation recommends to clarify in the General Equal Treatment Act that it will constitute a prohibited discrimination if persons with disabilities are denied that reasonable accommodation. In individual cases it would thus be actionable in court if measures to overcome barriers for persons with disabilities were omitted.

Granting protection to external staff
So far, the law applies double standards to the protection against discrimination for external staff: The General Equal Treatment Act only applies to "classical" temporary workers, but not to comparable situations where external staff is deployed. External staff is increasingly deployed within the scope of long-term contracts for work or services carried out in other companies. In relation to the management of those companies, external staff is not protected by the General Equal Treatment Act. That lack of protection particularly applies to people from the low-wage sector - in the near future this will probably also be an increasing number of refugees coming into the labour market.

Triangular constellations in labour and civil law
Since according to the General Equal Treatment Act the liability rests with the employer alone, it would be advisable to put existing provisions in more concrete terms, especially where third persons such as e.g. recruitment agencies take action. Commissioning a third party to perform must not result in a circumvention of responsibility for damage and compensation. The legislator should also explain more clearly the duties which employers have in order to prevent discrimination. This shall also apply outside the labour law accordingly , e.g. regarding a tenancy in relation to estate agents or property management agencies.