Germany’s anti-discrimination law, ten years on

Stakeholders take stock of Equal Opportunity in Germany, ten years after the anti-discrimination law went into effect

The General Act on Equal Treatment (Allgemeine Gleichbehandlungsgesetz or AGG), enacted for the purpose of preventing or stopping discrimination on the grounds of race or ethnic origin, gender, religion or belief, disability, age or sexual orientation in Germany, went into force in August 2006 amidst much controversy.

Employers called the law a “bureaucratic monster” and Chancellor Angela Merkel said it was a potential “job killer”, fearing a wave of legal suits by unsuccessful applicants for jobs.

Those fears have proved largely unfounded, says Christine Lueders, the head of the Federal Anti-Discrimination Agency (Antidiskriminierungsstelle des Bundes). Instead of a deluge of legal suits as expected by the law’s opponents, Ms Lueders says that, in fact, too few victims of discrimination have gone to court.

Isabel Teller of the Office for Equal Treatment (Gleichbehandlungsbuero) in Aachen says the hurdles before victims of discrimination are high which is why only a few number of them seek legal protection. “If you feel discriminated against, you have to have a witness and you have to have money to pay for the legal costs,” the lawyer explained.  Ms Teller said that one way to improve the situation is to give counselling centres such as hers the legal right to sue on behalf of victims, a view also shared by Lueders.

Despite the low number of people who have used the law to enforce their rights, the AGG has resulted in a number of precedent judgements.

In 2011, a court boldly applied the anti-discrimination law and held an estate management company guilty of discriminating against an African family in their search for a flat. According to Teller, the family had approached the company in Aachen that had advertised a vacant flat. The agent in charge simply told the family that she had had troubles with Africans in the past and would not rent the apartment to them.

The family thereafter approached the Aachen Office for Equal Treatment which sent another African to the same estate company to seek the same vacant flat. He was told also to his face that the company did not want an African tenant. The office now approached the estate agency officially and referred it to the anti-discrimination law and that its conduct was discriminatory and a contravention of the law. The company refused to change its decision.

With the financial support of the anti-discrimination NGO Living without Racism Foundation (Leben ohne Rassismus), the matter was then taken to court where the family sought compensation for the damage they suffered by virtue of the discrimination meted out to them.

The State High Court in Aachen dismissed the case, but the family appealed to the higher Upper High Court in Cologne, which reversed the judgement, holding the estate agency guilty of discrimination and liable to damages of 5,000 euros.

Most analysts believe the historic decision will ease the ordeal immigrants go through in search for flats and accommodation in Germany. For immigrants, especially those with a dark skin, looking for a flat can sometimes be akin to a Herculean task.

In December 2007, a single Black mother, Natasha Kelly, was told to leave her apartment in the north-western city of Osnabrueck because other tenants had complained of her presence. “Some of the other tenants are unhappy about the colour of your skin. Some of the elderly tenants have been here for forty years and I cannot ask them to leave,” the landlord is alleged to have told Kelly.

Another legal dimension of the landmark verdict is that any immigrant who feels discriminated in search of accommodation but has no money to seek redress in a law court can apply to the state for legal aid based on the precedence of this case.

“That case of the African family in Aachen and similar ones in which the discrimination on the basis of gender have been punished by courts in the past five years show that the law is working,” says a lawyer, who would like not to be named in this report. “It’s now left to those the law is supposed to protect, to use it.”

Apart from housing, employment is another major area in which women, people with disabilities or of foreign origin, face discrimination. In fact, one of the major hindrances to the integration of immigrants in Germany is their poor chances in the employment market.

The unemployment rate among foreign residents doubles that of native Germans. Although the main reasons advanced for the situation are inadequate language skills and professional qualifications, discrimination also plays a major role.

In fact, for highly educated foreigners, the chances of getting jobs commensurate to their qualifications are very slim. This is also why many university-educated Africans used to relocate to France and the UK after graduation because of better job opportunities there. This situation has however changed now.

That discrimination is rampant in the world of employment was proved by a study published several years ago, which showed that applicants with foreign-sounding names have poorer chances compared to applicants with German names when both have the same qualifications, language skills and all hold the German nationality.  In a test carried out by the University of Constance, applicants with Turkish names received up to 24 per cent lesser positive responses to their applications compared to their German counterparts.

It was in recognition of the fact that corporate hiring is still plagued by discrimination that moved the Federal Anti-Discrimination Agency to recommend to companies and public institutions to employ anonymous application process in their recruitment practice. A pilot project was carried out with the participation of many companies including big ones like Procter & Gamble. The result has been that the process improved the chances of applicants belonging to social groups often discriminated against.

Researchers have found out that migrants are often discriminated against in recruitment because they’re assumed to be less competent than their German counterparts even if both have the same qualifications. And for migrants to be able to defeat this stereotypical impression, they have to be given an opportunity to come in.

The then Federal Commissioner for Integration, Prof Maria Boehmer, in collaboration with leading companies such as Daimler, Deutsche Bank, Deutsche BP (British Petroleum) und Deutsche Telekom, initiated a campaign, under the motto Diversity as Opportunity (Vielfalt als Chance), in December 2006 to encourage both the private and public sectors to reflect the diversity of society in their workforce.

The initiative persuades companies, government ministries and other public agencies at federal, state and communal levels to employ people with foreign origin and train their youths. As a pledge of commitment to the objectives of the campaign, more than 2,250 companies have signed up to the Charter of Diversity (Charta der Vielfalt), which in itself was inspired by a similar programme in France called “Charte Diversité”.

As laudable as the Charter is, analysts say it remains a voluntary commitment, and that until there is a legally binding quota for employment the rapid changes that need to happen will remain an illusion.

Many migrant organisations have said time and again that a more effective way to fight discrimination is to ensure that diversity of society is reflected in public institutions by enacting a quota for the employment people of migrant origin in public service. “If the state introduces a quota, it will send a clear message to the private sector,” says one of its proponents, who points to the experience of countries such as Britain. The federal government has rejected that suggestion.

In a positive development, the state of Berlin announced in 2011 that it aimed to have people of foreign origin constitute 25 per cent of its employees. At that time, only about 10 per cent of employees in the service of the state have a migrant background though that social group constitute a quarter of the state’s population. Today, Berlin has achieved its target with nearly a third of its public servants having a migrant origin.

Most commentators on the anti-discrimination law, ten years on, however say its sheer existence has definitely increased the awareness of the need for equal treatment in society, and that is a major achievement of the law.

Sola Jolaoso