Possibilities of enforcing the law of protection from discrimination
when it comes to creating, complying with and ending obligations under civil law.
Stocktake, alternatives and further development
- Fact sheet on the research project -
Authors: Steffen Beigang, Friederike Boll, Vera Egenberger, Lisa Hahn, Andreas Leidinger, Dr. Alexander Tischbirek and Defne Tuner Year of publication: 2021
The legal sociology study analyses existing approaches to enforcing the law in cases of discrimination concerning the access to and supply with goods and services as well as accompanying measures such as public relations and training. For this purpose, focus groups and experts were interviewed, case studies drawn up and results discussed with experts in the field. The analysis forms the basis for concrete recommendations for action to further improve existing procedures and approaches to enforcing the law and developing new ones.
In the access to goods and services, discrimination on grounds of any of the characteristics protected by the General Equal Treatment Act (AGG) as well as those not protected by it can, in principle, occur. While it is true that the number of court decisions on anti-discrimination law relating to goods and services has grown considerably in recent years, it is very rare for civil law actions under the AGG to be brought, which is why this field lacks the level of differentiation and depth seen in other fields of jurisdiction.
Private enforcement / strategic lawsuits
The authors make it clear that, when it comes to the access to goods and services, those affected tend to refrain from pursuing individual enforcement in the form of lawsuits. The underlying reasons are limited knowledge of the anti-discrimination law, relatively steep hurdles in terms of burden of proof, lengthy proceedings, a limited number of lawyers proficient in anti-discrimination law, unpredictable costs and negligible amounts in compensation as well as a two-month deadline to assert claims for a violation of the prohibition of discrimination under civil law the (section 21 (5) p. 1 of the AGG). A Hanover-based case study on discrimination at nightclub entrances shows that strategic lawsuits can help to overcome many of these problems. In addition, the expert opinion concludes that strategic lawsuits trigger the further development and reform of the law and can alter the interpretation of substantive law.
According to the authors, the weaknesses of individual enforcement could be overcome by instruments of collective enforcement, especially in cases where affected individuals can either not be identified or are not interested in seeing their specific case heard. A case study on the right of collective action in consumer protection law over the ban to take e-scooters on local public transport illustrates the potential strategic lawsuits can hold in discrimination scenarios. While, ultimately, the lawsuit was not successful, it led to a political solution. By the same token, representative action by assignment would render enforcement easier for those affected.
The analysis of public law enforcement that above all refers to the trade law prohibition of discrimination in accessing clubs and restaurants laid down in the licensing acts of Lower Saxony, Bremen and Thuringia concludes that – in theory – this could be a promising tool to fight discrimination more effectively. In practice, however, a case study on public law enforcement in the city of Hanover has shown this to only result in fine notices of little legal enforceability, which is mainly due to difficulties establishing the circumstances of the case. The authors conclude that public law enforcement is of only limited effectiveness in altering behaviours as intended when it comes to enabling access to clubs and restaurants.
According to the authors, alternative enforcement approaches, such as extra-judicial mediation, which is voluntary for those concerned, inherently have the potential to resolve conflicts over the access to goods and services in a low-threshold and sustained manner, provided they are properly designed. The advantages of extra-judicial mediation are that it is fast, cost-effective and allows unbureaucratic access. Moreover, it aims to settle disputes consensually and reach a compromise which tends to be in the interests of those affected: ending discrimination, receiving an apology or seeing the other party pledge to desist from a certain type of behaviour in the future. However, mediation mechanisms could act as an impediment to enforcement where those affected by discrimination (e.g. in North Rhine-Westphalia) are legally required to participate in a mediation process even before they are able to assert their claims under the AGG in court, which tends to make the proceedings even more lengthy. The authors argue that, until now, the full potential of mediation procedures has rarely been exploited in practice since the many different mechanisms in the fragmented mediation landscape are not sufficiently attuned to cases of discrimination and advice centres and those affected unlikely to be aware of these.
In addition, the study stresses that, while accompanying measures taken by anti-discrimination associations and advice centres such as, specifically, press and public relations work, cooperation with the various associations and other stakeholders, campaigns and information activities, do help to give visibility to discrimination in the public space and raise awareness to the issue of discrimination, they are, at most, an indirect means of helping those affected enforce their rights. Nevertheless, accompanying measures directly attending law enforcement represent an important and sometimes crucial instrument. However, this type of work, mostly shouldered by civil society associations, tends to be extremely time-consuming and costly. Generally, public funding of civil society organisations only very rarely provides for direct financing of accompanying measures or the connected personnel costs.
Options for action
Strengthening the law
To strengthen the law, the authors suggest, in particular, to specify the scope of application of the AGG’s Article 3 and enshrine the right to accessibility and reasonable accommodation in the AGG. The potential legal consequence of a legal obligation to contract should be clarified by the law, an obligation to provide information requested by the claimants should be introduced and specific provisions for the protection from discrimination included in all licensing acts.
The authors specifically recommend the introduction of representative action and the right of collective action as ways to facilitate law enforcement. Moreover, testing procedures should be recognised as a means of providing evidence and appropriate and deterrent penalties imposed for discrimination relating to the access to goods and services. The authors’ central recommendation is to set up, at the Federal Anti-Discrimination Agency, an ombuds office for the mediation of discrimination complaints that can take on and process complaints in an impartial manner. Existing ombuds structures such as those set up by banks, insurance companies and public transport, should be given the wherewithal to handle discrimination complaints with technical expertise. These arbitration procedures should be set up so as to be unilaterally obligating. Another proposal is to broaden the mandate of the BGG - Gesetz zur Gleichstellung von Menschen mit Behinderungen Arbitration Service pursuant to section 16 of the Act on Equal Opportunities for Persons with Disabilities beyond its narrow scope to also include all private respondents.
Accompanying measures and prevention
When it comes to accompanying measures and the prevention of discrimination, the authors suggest offering more training on protection from discrimination and adjusting vocational training curricula with this in mind. Moreover, the authors recommend intensifying cooperation among the trade associations, advocacy organisations and professional associations as well as consumer advice centres. The funding of anti-discrimination counselling bodies run by the State or civil society is seen as central to preventing and eliminating discrimination. Finally, the authors recommend that more research should be done into discrimination experiences and the effectiveness of anti-discrimination measures, especially those relating to the access to goods and services.