Forms of discrimination

According to the General Act on Equal Treatment (AGG), discrimination is the less favourable treatment of a person on the grounds of age, disability, ethnic origin, race, gender, religion or belief or sexual orientation (Section 1 AGG) which cannot be justified by objective reasons.

In Section 3, the Act specifies different forms of such discrimination.

Direct discrimination: A person is treated less favourably than another in a comparable situation on any of the grounds referred to under Section 1 AGG. Examples are, for instance, job advertisements with discriminating age limits, dismissal of a woman because of pregnancy (gender) or the refusal of membership at a gym on the grounds of ethnic origin.

Indirect discrimination: Discrimination against a person does not appear to occur on the grounds stated under Section 1 AGG but on grounds of a seemingly neutral criterion. Initially, they apply to everybody in the same way, however, as regards their effect, they are more discriminating for certain groups than for others. As a consequence, a job advertisement is indirectly discriminating if it requires German as mother tongue for the work in a market garden. This occupation requires a relatively low level of linguistic competence. However, such a requirement excludes those who do not have German as their mother tongue, e.g. people who have come to a country as immigrants.

Harassment: If a person’s dignity is violated, if that person is degraded or offended on the grounds referred to under Section 1 AGG, this shall be deemed to be discrimination under the AGG. A specific form of harassment is sexual harassment caused by an unwanted conduct of a sexual nature, ranging from inappropriate sexual allusions, staring (at somebody), suggestive comments to the spreading of pornographic material to physical sexual assaults. Sexual harassment violates the affected person’s dignity. It is not relevant whether the violation of dignity has been intentional. A 2019 survey by the Federal Anti-Discrimination Agency has shown that about one in eleven working persons experienced sexual harassment at the workplace over the past three years. At 13 per cent, women are much more often affected than men at five per cent. However, the prohibition of discrimination through sexual harassment applies to men, transgender[1] and intersex persons alike.

Bullying as a very frequent form of harassment increasingly takes place in the work environment. Bullying is defined as actions violating a person’s dignity and lasting for a longer period of time, taking place in a targeted manner and in a systematic way and being geared towards an infringement of personality rights of the bullied person. Eventually, there can also be victimisation in the work environment if a person complains about discrimination and is therefore discriminated against again - e.g. by transferring the person to a worse workplace.

The General Act on Equal Treatment also protects persons against unequal treatment on several grounds (Section 4 AGG) even though multiple discrimination is not defined clearly in the Act. Multiple discrimination or multidimensional discrimination may occur if different discrimination grounds converge and mutually reinforce each other. One example of this additive form of discrimination would be if a woman with a disability applied for a new job, and firstly, if she structurally had worse chances of access to the labour market due to her disability and, secondly, if she as a woman was subject to the risk of indirect discrimination of being paid less than men (gender pay gap). In this context, both forms of discrimination can be witnessed and analysed separately.

Intersectional discrimination[2] designates the specific interaction or “overlapping” of different characteristics of discrimination. These interact and cannot be separated any more. Frequently, discrimination on grounds not covered by the AGG add up to discrimination on grounds covered by the AGG and interact intersectionally. Thus, the social status, the employment situation or the family status, among other things, can intersectionally increase discrimination, e.g. if a refugee family with many children receiving transfer payments is discriminated against when looking for a flat. 

Another example would be racist admission controls in clubs. Here, primarily young men are concerned who are perceived as migrants. As young age, male sex and ethnic origin of the persons concerned coincide here, they are rejected at the club entrance.

[1] Transgender (in Germany: trans*) is a generic term for transsexual or trans-identifying. Various persons speak of themselves as such if they do not or not only identify with the gender assigned to them at birth. The asterisk in the German term trans* is a placeholder for various identities.

[2] The term and the concept of intersectionality was used for the first time by Kimberlé Crenshaw. Please also see this study.

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