As should be surmised, the General Equal Treatment Act applies not only to existing employment relationships, but also to those at the application stage. While many employees who already have a job may turn a blind eye to less egregious forms of discrimination in the workplace so as not to jeopardize an otherwise good working environment, applicants for a job may not be so “generous.”
Germany’s Civil Code stated in the past that if a person suffers discrimination on the basis of sex, the damages would be up to three months of pay. A comparable provision is included in the General Equal Treatment Act, though it applies not only to sex discrimination, but to the seven other types of discrimination set forth in the General Equal Treatment Act. It is important to point out that the applicant may receive up to three months of compensation even if the applicant would not have gotten the job despite the discrimination. If the applicant would have received a job offer had there been no discrimination, the money damages are not limited to the three months’ pay.
What Questions May Be Asked?
Even after the enactment of the General Equal Treatment Act, employers are still permitted to pose any number of questions during interviews. For example, employers may ask applicants about their job-related qualifications, past work experience, and foreign-language capabilities (as long as these relate to the job). Employers may also ask for references. As can be imagined, employers are able to glean a good amount of information – including information that was not specifically requested – from the applicant’s answers to these questions.
Not surprisingly, the General Equal Treatment Act requires employers to pay a bit more attention during interviews to ensure that they do not ask any questions that are now prohibited, or at least must be posed in a different manner.
Résumés and Letters of Reference
A résumé in Germany will often include the applicant’s date of birth. If this information is not included, the employer should not request it, as this may potentially lead to a claim of age discrimination. Nevertheless, it is quite easy to gauge an applicant’s age by reviewing his letters of reference and, as is often still the case in Germany, by looking at the picture that is included with the résumé.
It has quickly become clear in Germany, however, that to insist upon receiving the applicant’s picture is a no-no. Not only may this lead to a claim of age discrimination, but the applicant’s race will also be revealed. Though the practice is still very common in Germany, postings for positions available should not explicitly request that applicants include a picture of themselves. In any case, assuming a personal interview takes place, the employer will learn of the applicant’s age, race, often whether the applicant is disabled, etc., during the interview.
“Ar e You Marr ied? Do You Have Childr en?”
Asking whether the applicant is married or single should also not be part of the application process, as this may be seen as a way of trying to determine the applicant’s sexual orientation. Employers should also not ask an applicant about children. Related thereto, posing questions about children to female applicants is problematic, as this may lead to a claim of indirect discrimination in that a female applicant with children may fear that she is being discriminated against because the employer will probably think she will be less devoted to her job than to her children. If an employer asks about the flexibility of an applicant, that applicant could also claim that the employer is engaging in sex discrimination, as women with children will tend to be less flexible due to their family commitments.
How Relevant Is a Disability?
The General Equal Treatment Act prohibits any form of discrimination based on disability. In the past, employers could ask applicants whether they were severely disabled. This is no longer the case. An employer should avoid asking such a question during the application process. Also, if such a question is posed, the applicant does not need to respond truthfully. If it subsequently turns out that the employee is disabled despite having said that this was not the case during the application process, the employer may not take any action against the employee for not disclosing this during the application process.
If the position requires certain qualifications – for example, physical qualifications – the employer may want to ask whether the applicant feels that he can fill the position without needing any special accommodations. The employer may state that the person who is hired will often be required to travel by plane. If the applicant states that this is no problem and later reveals that, due to a disability, he is unable to fly, the employer has a good chance of being able to nullify the employment relationship because the employee misrepresented the facts during the application process.
Religion and Beliefs
Questions relating to an applicant’s religion are generally taboo. Less clear are questions pertaining to an applicant’s “beliefs.” The General Equal Treatment Act also prohibits discrimination based on “beliefs.” For example, Scientology has often been a point of discussion within Germany. Though Germany’s Federal Labor Court does not recognize Scientology as a religion nor as a form of belief, this holding should not be the end of the discussion. As stated before, the General Equal Treatment Act is based on an EU Directive, and it is possible that the European Court of Justice, if ever confronted with this issue, will conclude differently.
A person’s beliefs may also be tied to whether the person is a member of a particular political party. As a result, asking any questions about an applicant’s political affiliations must be avoided – especially if the applicant is affiliated with a political party outside the mainstream. There is one proviso to the above – an employer may ask whether an applicant is affiliated with a political party or organization that is prohibited by law.
Finally, employers should avoid asking whether an applicant served in the military or, alternatively, provided social services (men of draft age in Germany may avoid being drafted into the military by electing to provide social services instead, e.g., working in a home for senior citizens).
Always Pr oceed With Caution
Because court decisions interpreting the General Equal Treatment Act are still quite limited, employers should proceed with caution during the application process. Based on Germany’s experience with sex discrimination, which has been prohibited in Germany since 1980, courts have tended to have an open ear for discrimination claims. As a result, employers should ensure when preparing a job posting that they are properly informed as to what may lead to a claim of discrimination. As an extreme, in the past applicants from India in the English-speaking world have “tested” employers by submitting two applications – one using an Indian name and one using an English-sounding name; other than the names, the information regarding these “two” applicants was nearly identical. If only the applicant with the Englishsounding name was invited in for an interview, the employer “failed” the test and might have opened itself up to a claim of discrimination.