By Alexander Steven, Firm: kliemt.de

The Berlin Labour Court has held that an employee who was bullied on the grounds of his East German origin had not suffered discrimination on the basis of ethnic origin.

Even 30 years after the fall of the Berlin Wall, the German population is still dealing with similarities and differences between East and West Germany in many different social, political and legal areas. Discussions in this context are frequently influenced by persistent resentment and prejudice. The topic of ‘equal treatment’ plays a central role in this. This can also affect the workplace. In this context, a recent decision of the Berlin Labour Court (ruling of 15 August 2019 - 44 Ca 8580/18) raises the question of the extent to which claims for damages can arise if resentment and prejudices between colleagues are unleashed and discrimination against East German employees is imminent.

The Labour Court ruling

The plaintiff had been employed as deputy head of department of the defendant newspaper publisher since 2011 and had concluded a contract for partial retirement with his employer in 2017, according to which the employment relationship was to end prematurely on 31 October 2021. The plaintiff then sued his employer for compensation, damages, inter alia for pain and suffering, as he had been stigmatised and humiliated by two senior employees because of his East German origin.

There had been verbal humiliation, connecting the plaintiff to, among other things, the state security, the socialist and repressive political system of the GDR, living habits and the behaviour of citizens of the former GDR. Furthermore, he had been described as a ‘stupid Ossi’ at editorial meetings. The plaintiff had been in psychotherapeutic treatment for several years because of these incidents. He had also only signed the contract for part-time work for older employees because of his mental illness and the existential fears associated with it. Concluding this agreement and the associated early termination of his working life had caused him damages in the amount of EUR 600,000 in total. In addition, the non-material damage resulting from the discrimination amounted to at least EUR 200,000. The question was thus whether bullying an employee because of his East German origin constituted a disadvantage within the meaning of s1 of the Equal Treatment Act (AGG) and whether the plaintiff could assert claims for damages accordingly. In addition, the court examined whether a claim for damages based on harm to personality or health could be considered under s823 of the Civil Code.

According to section 1 of the Equal Treatment Act, its aim is to prevent or eliminate discrimination on grounds of race or ethnic origin, gender, religion or ideology, disability, age or sexual identity. Accordingly, the court examined whether belittling the plaintiff on the grounds of his East German origin constituted discrimination on the grounds of his ethnic origin or ideology and held that it did not. People of East German origin would not be considered an ethnic group. Moreover, East Germans would not have a uniform worldview.

In addition, damages for a violation of personality or health under s823 of the Civil Code were out of the question, since the plaintiff should have informed the defendant of the danger of the EUR 800,000 damage that, in his view, had occurred. In this context, the plaintiff was subject to contributory negligence within the meaning of s254.2 of the Civil Code, assuming that the facts of the case did in fact involve harm to his personality or health. According to his own submission, the plaintiff was already aware in 2015 that his mental illness was caused by ‘bullying’ by his superiors. In order to avoid such high damages, the plaintiff should have informed the defendant of this. This meant he was not entitled to damages claimed because of his contributory negligence.

Discrimination on grounds of ethnic origin or belief

The judgement underlines the legal view of the Stuttgart Labour Court in a now nearly 10 years old decision, in which an employee of a company had written the note ‘Ossi’ and a minus sign on the curriculum vitae of an applicant, who was then rejected in the application procedure. In this decision, the court also denied discriminatory behaviour and was of the opinion that East Germans do not share the same ethnic origin. Although the East German federal states are a distinct territory, they do not have any ethnic commonalities beyond this, such as language, traditional customs or similar. The Federal Labour Court's case law also takes this view, according to which an ethnic group is to be understood as a part of the population which is linked by common origin, history, culture or a feeling of belonging together, irrespective of nationality (Federal Labour Court, judgement dated 21 June 2012 - 8 AZR 364/11). According to the explanatory memorandum to the Equal Treatment Act, discrimination on the basis of ethnicity is to be understood broadly in this context and may include racial discrimination (BT-Drs. 16/1780 p. 31). It is present, for example, when employees speak disparagingly about Sinti and Roma or ‘Islamists’, if this refers to a population group that is linked by history, culture and origin.

Similarly, when East German origin is disparaged, ideology is not considered a discriminatory factor. In the Federal Labour Court’s opinion, this difficult-to-define element of the offence does not apply, at least in the case of a general political opinion or sympathy for a political party (BAG, ruling dated 20 June 2013 - 8 AZR 482/12).

However, the Federal Labour Court has left open the question of whether membership of a political party constitutes a worldview in the meaning of s1 of the Equal Treatment Act (BAG, judgement of 21 September 2011 - 7 AZR 150/10). In an earlier decision, the Berlin Labour Court had also taken the view that the political conviction ‘Marxism-Leninism’ was a worldview because it was a ‘theory of society as a whole’ (ArbG Berlin, judgement of 30 July 2009 - 33 Ca 5772/09).

Conclusion

If discrimination on the basis of ethnic origin or ideology is at issue, those affected must carefully examine the extent to which discrimination under the Equal Treatment Act actually applies. The Berlin Labour Court judgement has clarified that at least bullying on the grounds of East German origin does not constitute discrimination as defined in the Equal Treatment Act.

However, in view of the increasing number of bullying victims and a social change in what is an acceptable tone regarding questions of ethnic origin or ideology, employees and organisations should be particularly sensitive to allegations of discrimination in this area.