After several years of discussions and despite numerous obstacles from all sides, the new German Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, AGG) went into effect on August 18, 2006. Through this act, Germany fulfilled its duty vis-à-vis the European Union and implemented European anti-discrimination legislation into German law. With this a new era begins in German labor law as anti-discrimination was almost an unknown topic to it in the past.
A couple of years ago four EU directives, which prohibit discrimination due to race, ethnic origin, religion and ideology, disability, age, gender and sexual identity, went into effect. EU Member States were required to incorporate the directives into their national legislation, and the transition period for some of these directives has already expired. The previous German government tried to convert the requirements of the mentioned directives into German law through a measure entitled “Anti-Discrimination Act.” Due to a heavy protest—from associations, churches, etc.—the conversion was never completed. The current government made a new attempt and, in connection with the agreement concerning the federalism reform, overcame the resistance of the states. The Equal Treatment Act went into effect on August 18, 2006.
Alterations for the Employers
Section 12 of the Equal Treatment Act will be particularly significant for employers in the future. Employers are now obliged to take appropriate action to protect their employees from discrimination based on the mentioned criteria. This protection includes preventive measures.
Employers must—particularly in line with occupational and further education—point out the inadmissibility of such discriminations and undertake every action possible to avoid them. If an employer trains employees in an adequate manner to prevent discrimination, then such duties are met. In the case of future discrimination claims, employers should assume judges will ask if and to what extent they have provided anti-discrimination training.
In the event that employees violate the prohibition to discriminate employers must take appropriate, necessary and adequate measures to prevent further discrimination in each particular case (e.g., warning, transition, relocation or termination). Further, they may be obliged to compensate an employee who claims discrimination in terms of both financial and non-pecuniary damages. However, this does not apply if the neglect of duty was not caused by the employer, which will be determined by reviewing the extent to which an employer met its duty to educate employees in advance of the discriminatory act.
Consequences for Companies
Throughout the legislative process, several different parties expressed their doubts, ranging from expected burdens to companies to higher costs for more bureaucracy. It remains to be seen how the new act will actually prove in practice, but it is clear that employers now have a duty to explain the new legislation to and to train their employees.