Evaluation
of the General Act
on Equal Treatment
- Factsheet on the Evaluation -
Authors: Dr Sabine Berghahn, Vera Egenberger, Micha Klapp, Alexander Klose, Doris Liebscher, Dr Linda Supik and Alexander Tischbirek, commissioned by the Federal Anti-Discrimination Agency Year of publication: 2016
Brief overview
The present study evaluates the General Act on Equal Treatment (AGG), which came into force in 2006. It examines both the legal aspects and the practical effectiveness of the law. Since the Act is designed to implement four European Union directives into national law, the study will first analyse the international, European and constitutional law requirements. In addition, it examines the case law and literature based on focus group conversations, expert interviews and written surveys. The evaluation concludes with recommendations for action to be taken by lawmakers and for the enforcement of rights.
Main results
General part of the General Act on Equal Treatment (AGG) / terminology
The authors recommend replacing the term “Benachteiligung” (disadvantage) with “discrimination” in the German version of the Act [Note: the English version solely uses “discrimination”]. According to the case law of the European Court of Justice (ECJ), protection must now also apply to those experiencing discrimination by association. The scope of the Act should also be extended to discrimination with no identifiable victim. In addition, the authors recommend replacing the term “race” by the term “racist” in the wording of the legislation, which serves to abolish the idea of different human “races”. Moreover, the term “age” should be replaced by “chronological age” to make it clear that the term also includes discrimination of young people.
It should be made clearer that the term “gender” in the AGG also relates to intersex and transgender people. Additionally, the term “disability” should be more broadly defined in line with the UN Convention on the Rights of Persons with Disabilities, so as to include discrimination due to a lack of reasonable accommodation.
Sexual harassment
Regarding the protection from sexual harassment beyond the workplace, it is also recommended that the Act be expanded to include other spheres of life. This should no longer require the existence of a “hostile environment”.
Positive action
Positive action to combat discrimination, which so far has been merely permitted by the AGG, is only used rarely according to the study; a mandatory framework taking the form of e.g. company agreements should therefore be created.
Protection from discrimination under labour law
There is a need to amend the scope of application of the AGG concerning the protection from discrimination under labour law; firstly with regard to expanding the obligation to advertise vacancies in a non-discriminatory manner, and secondly with regard to the legal clarification that the AGG also covers dismissals. Similarly, the increased use of outside staff makes it necessary to expand the protection from discrimination. With a view to the growing importance of company pension schemes, it is also recommended that the relation between the Company Pensions Act and the AGG be specified.
Justification for unequal treatment
The authors also advise to limit the scope for justifying unequal treatment. In their opinion, the focus should be on the lacking protection from discrimination for people of retirement age who want to or have to continue working.
"Church-clause"
The “church clause” laid down in the AGG refers to the freedom of religious communities to discriminate against staff on grounds of their religious affiliation and on grounds of a breach of behavioural obligations. The authors of the evaluation argue for a more differentiated solution: these kinds of requirements could be justified in the area of preaching; however, the general provisions would continue to apply to doctors, nurses and teachers who are employed by Caritas or Diakonie.
Triangular contracts in labour and civil law
With regard to a three-way relationship between employers and third parties, the authors recommend a clearer definition of employers’ obligations to protect employees. In case of a violation of these obligations, employees should have a claim for compensation as set out in the AGG. This can be applied to housing and tenancy law.
Expanding the protection from discrimination on grounds of belief to civil law
Based on the evaluation, the protection from discrimination on grounds of belief laid down in the AGG is not sufficient, as it only applies to labour law. Expanding the scope to civil law is recommended, since there are gaps in protection in the housing market in particular. Legislators should also demand stricter justifications for discrimination by private insurance companies that is due to a person’s age.
Extending period of time periods and strengthening rights of appeal
Due to the fact that people affected by discrimination are individually responsible for lodging a complaint, it is of key importance that they can enforce their rights in order for the AGG to be effective. The authors of the evaluation therefore recommend strengthening the rights of employees included in the AGG to lodge a complaint and refuse performance and to protection against victimisation. In addition, the period for asserting a claim under the AGG should be extended to six months.
Lifting restrictions on the compensation claim
In order to effect a change in behaviour – preferably in a preventive manner – using the sanctions provided for in the AGG, it is advisable to lift the existing restrictions on the claim for compensation and to propose benchmarks for assessing the claim.
Expanding the easing of the burden of proof and right of collective action
Providing evidence remains the key issue when enforcing anti-discrimination law in court. The eased burden of proof under the AGG should therefore be moderately expanded and be complemented by a right to information in labour law. Due to the various barriers on the path towards an individual’s right to remedy, legislators should establish a collective right to remedy by way of a right of collective action for appropriately qualified anti-discrimination associations and should strengthen the rights of works councils and trade unions.
Strengthening the Federal Anti-Discrimination Agency
The powers of the Federal Anti-Discrimination Agency should be extended beyond the right to provide advice and counselling and be strengthened. According to the authors of the study, this includes support in filing complaints through opinions, a comprehensive right to information, to lodge complaints and to participate in proceedings and a right of action in fundamental cases. As a result, the evaluation recommends expanding the Agency’s staff and resources.
