The disabled constitute one of the protected classes under Germany’s General Equal Treatment Act. This article will discuss some of the crucial issues that need to be considered when confronted with the prohibition against discrimination based on disability.
Prohibition Against Discr imination Based on Disability – Old and New
The prohibition on discriminating against disabled persons is not new to Germany. Such a prohibition has been codified in Germany’s “Social Book” since 2001. This particular provision prohibits discrimination against employees with a “disability degree” of at least 50. In Germany, a disabled person may apply for his level of disability with the responsible authorities (more specifically, the Integration Office).
A disability degree of above 50 constitutes a “severe disability.” Though this provision is actually now redundant as a result of the enactment of the General Equal Treatment Act, it remains on the books.
The term “disability” as used in the General Equal Treatment Act has a different basis than does the term “severely disabled” as used in the Social Book. The former means a physical, mental, or psychological state that is atypical for a person of that age, lasts longer than six months, and impairs the person’s ability to participate “normally” in society. The term “severely disabled” means, very simply, if the degree of disability is above 50. The General Equal Treatment Act uses this broader term so that it is in line with the EU Equal Treatment Directive that Germany was required to harmonize into its national law.
The term “severely disabled” is distinguishable from the term “disabled.” Germany’s Federal Labor Court, however, recently eliminated this apparent contradiction, as the court held that a person with a disability degree of under 50 is also protected by the prohibition on discrimination in the Social Book, i.e., even if that employee is not “severely disabled.” The court ruled in this manner, as otherwise the Social Book would be in violation of the above-referenced EU Equal Treatment Directive. This means that employees who are not “severely disabled” and were victims of discrimination prior to the enactment of the General Equal Treatment Act may seek compensatory damages for discrimination under the Social Book
Watch Out What Questions You, as the Em ployer, Ask During an Interview
If a job applicant lies in response to a question posed by a potential employer during an interview, and the question was permissible, the employer may subsequently rescind the employment once the truth comes out. If an employer exercises this right, it is deemed that the employment relationship had never commenced.
Prior to 2001, German courts had consistently held that employers were permitted to ask applicants about a disability; this was largely because employers were required to accommodate disabled employees and an employer had to know what type of accommodations it would need to make if the disabled individual was hired. If, during an interview, a potential employer asked an applicant about a disability that did not constitute a “severe disability,” the applicant was required to answer this question truthfully only if the disability somehow restricted the applicant’s ability to perform the work without any accommodations.
Since 2001 employers have generally not been permitted to inquire about a disability, as it would open the door to discrimination prohibited by the Social Book. The General Equal Treatment Act does not change this. The only time an employer may ask about a disability is if such a disability would disqualify an individual for the available position; e.g., the driver of an ambulance cannot be blind. Though not that significant, the General Equal Treatment Act will cause a couple of practical changes to be introduced with respect to inquiring about a disability during an interview. Not only may an employer not ask about a “severe disability,” the employer may not ask about any “disability.” An exception exists if the employer is seeking to hire a disabled employee in response to a call for “positive action” under the General Equal Treatment Act (comparable to affirmative action in the United States); in such an instance, the employer may ask about a disability. An employer may also ask about a disability if the employer is seeking to improve the integration of disabled persons or to increase the company’s number of disabled employees.
Regardless, as can be imagined, asking about a disability is risky, as it may open the door to a claim of discrimination.
Illness Does Not Constitute a Disability
A person who is “ill” generally may not file a claim for discrimination under the General Equal Treatment Act, as an “illness” does not constitute a “disability.” The difference relates primarily to duration – an illness is generally temporary, while a disability is generally permanent. Only if an employee has been ill for at least six months, and is the victim of discrimination, can the illness constitute a disability and thus enable that person to file a claim under the General Equal Treatment Act.
Has the Dismissal of Disabled Em ployees Become More Complicated?
Germany’s General Equal Treatment Act succinctly states that Germany’s termination protection laws, rather than the General Equal Treatment Act, will exclusively apply to the termination of employees. From a practical perspective, this means that the General Equal Treatment Act does not play a role with respect to terminations. But not so fast . . . this may soon change.
The European Court of Justice decided last year that the EU Equal Treatment Directive, on which Germany’s General Equal Treatment Act is based, does not permit the termination of an employee as the result of a disability if the employee is not able to perform his work duties only because the employer failed to provide the statutory reasonable accommodations. This means that an employer may terminate a disabled employee as a result of the disability only if the employee is unable to perform his work obligations despite the employer having provided the requisite reasonable accommodations.
This principle is currently reflected in the Social Book only with respect to “severely disabled” persons. Only for such employees is an employer required to provide reasonable accommodations. Under the EU Directive, however, an employer is required to make such accommodations for all disabled employees, without regard to their degree of disability. As a result, German law is not yet in line with EU standards. If bringing German law in line with EU law is accomplished by amending the General Equal Treatment Act – which is quite possible – then this will indeed complicate the termination of disabled employees.