What is the best ethnicity
Prohibitions of Discrimination - Ethnic Origin, Racism
What do "race" and "ethnic origin" mean in the sense of the AGG?
Since there are no human “races”, one cannot be discriminated against “because of one's race”. The law takes this into account by stating that discrimination "on grounds of race" is prohibited. This means discrimination based on alleged "race" reasons, i.e. for racist reasons.
The disadvantaged therefore, if he wants to take action against racist discrimination, does not have to plead that he belongs to any alleged, actually non-existent "race". Rather, there is discrimination if the discriminator assumes the existence of a race and this is the reason This is additionally clarified by Section 7 (1) of the AGG, which states that prohibited discrimination exists even if the person discriminating “only accepts” one of the reasons stated in Section 1 of the AGG.
With "ethnic origin" the AGG means the ancestry of a person and his external or linguistic peculiarities connected with it, starting with the skin color over the affiliation to a people or an ethnic group up to language or dialect. Foreign citizenship as such does not belong to ethnic origin, as it does not say anything about language or ethnic group. Experience shows that "xenophobic" resentments are often directed against people with German citizenship who have a foreign family background or a migrant background.
EXAMPLE: An employee who grew up in Saxony / Stuttgart with Saxon / Swabian parents works in Ravensburg / Leipzig and is discriminated there as "Ossi" / "Wessi". There is discrimination here because of ethnic origin.
When is it permissible to be in a worse position because of origin?
Employees or job applicants in a worse position because of their ethnic origin are generally, but not always, prohibited or legally prohibited. Rather, the AGG allows in some cases a place of origin-related inferiority, just as it also allows inferior treatment in some cases because of age, gender or religious convictions. One speaks here of a "permissible different treatment". General information on the disadvantages allowed under the AGG can be found under the keyword "Discrimination - Allowed Disadvantages".
Section 8 (1) AGG declares a different treatment due to one of the personal characteristics mentioned in Section 1 AGG to be permissible if this characteristic
- because of the nature of the activity to be carried out or the conditions of its exercise
- represents an essential and decisive professional requirement, provided that
- the purpose lawful and
- the requirement is reasonable.
With reference to this exception rule, an opera house can, for example, exclude male applicants from the casting of a female singing role without any prohibited discrimination being present. And in a similar way, people with an "unsuitable" ethnic origin can also be excluded from professional activities where, for example, it is particularly important that the applicant speaks a certain language as his mother tongue.
EXAMPLE: The German subsidiary of a French parent company is looking for an assistant to the management who speaks French as his mother tongue, as the person concerned must be able to communicate with the contacts of the French parent company as smoothly as possible and in a good or relaxed atmosphere. Such a requirement is objectively justified. Applicants with the "inappropriate" ethnic origin can therefore be disregarded when filling the vacancy, even if they speak French very well.
When is there discrimination based on origin in job advertisements?
The AGG also prohibits indirect discrimination, i.e. such (unjustified) disadvantages in which an apparently neutral distinguishing feature in its practical application mainly disadvantages people with a differentiating feature prohibited under the AGG (Section 3 (2) AGG). A classic example is the disadvantage of part-time workers, i.e. those who do not work full-time, which in practice mainly affects women, as they make up over 90 percent of part-time workers. Such indirect discrimination is also possible with regard to ethnic origin.
EXAMPLE: In a job advertisement, "accent-free command of the German language" is required.
Since this - apparently neutral - employment requirement is often not met by people who themselves or their parents or grandparents moved to Germany from abroad, such a requirement in a job advertisement could be understood as an indirect disadvantage due to ethnic origin. Such discrimination can be objectively justified if the job advertised is particularly dependent on correct written and spoken German, for example in the case of a secretary. However, if the advertised position can easily be filled with people who do not have perfect knowledge of German (as is usually the case with jobs in the commercial sector), such a job advertisement would be discriminatory on grounds of ethnic origin.
When is there discrimination on grounds of origin when hiring?
In a case ruled by the European Court of Justice (ECJ), a Belgian company specializing in the sale and installation of security doors and heavily dependent on single-family home owners and "middle-class" customers publicly stated that it did not want to employ "Moroccans" . This was justified with - alleged - customer requests, i.e. with the fact that the company's customers allegedly do not want foreign assembly workers.
Such behavior constitutes forbidden discrimination on the basis of ethnic origin (ECJ, judgment of 10.07.2008 case C 54/07, Center for Equal Opportunities and for Combating Racism vs. Feryn - we recently reported in Arbeitsrecht aktuell 08/086 Discrimination through public expression without a specific victim).
What is xenophobic harassment?
According to Section 3 (3) AGG, "harassment" is a disadvantage if undesirable behavior that is related to a reason specified in Section 1 AGG is intended or has the effect that the dignity of the person concerned is violated and one of intimidation, hostility, Environment marked by humiliation, degradation or insults is created. If such harassment occurs and it is directed against people because of their ethnic origin, one can speak of xenophobic harassment.
The Federal Labor Court (BAG) has decided that employees affected by such harassment are only entitled to monetary compensation in accordance with Section 15 (2) AGG if there is systematic discrimination. One-time incidents are not enough. In addition, a prerequisite for a claim for compensation is that xenophobic slogans or graffiti or other incidents of this kind are known to the employer and he does not intervene (BAG, judgment of 24.09.2009, 8 AZR 705/08 - we reported on this in Arbeitsrecht aktuell 09/184 Monetary compensation for xenophobic slogans).
Where can you find out more about racial or ethnic discrimination?
You can find further information that may be of interest to you in connection with the subject of discrimination on grounds of origin here:
Contributions from our legal team on current court decisions and other labor law news related to the issue of racial or ethnic discrimination can be found here:
Last revision: January 8, 2021
What can we do for you?
We will be happy to advise and support you if you have any questions in connection with any discrimination that may be attributable to you and your employer because of your origin or "race".
Of course, we also support you in asserting claims resulting from origin-related or racist discrimination. Depending on the situation of the case or according to your wishes, we either do not appear externally or we negotiate on your behalf with your employer or with a representative of the shareholders' meeting.
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