What is your ethnicity
You are one of them! - The East German and the ethnic origin
The General Equal Treatment Act (AGG) has been an integral part of labor law practice for more than 13 years. During this time, case law has made a large number of specific decisions, particularly on the various features of Section 1 of the AGG, especially on the features that are more frequently affected in practice, such as gender, age or religion. Nonetheless, there are still "gray areas" that require clarification. This also applies to the characteristic of ethnic origin, on which the Berlin Labor Court was allowed to deal with interesting issues.
Aims of the AGG?
The aim of the AGG in the field of labor law is - briefly summarized - to prevent or eliminate discrimination against employees, trainees or applicants on the grounds of race, disability, ideology, ethnic origin, gender, sexual identity and age. Accordingly, any unjustified direct or even indirect disadvantage of an employee or applicant, including because of his ethnic origin, is prohibited.
The characteristic of ethnic origin
But what exactly is meant by the concept of ethnic origin? The term is legally defined neither in § 1 AGG nor in the Anti-Racism Directive 2000/43 / EC or in Art. 19 TFEU.
Obviously, ethnic origin cannot be equated with the characteristic of nationality. However, following on from the definition in international agreements, there are various features that speak for the existence of an ethnic group. These features include, among others:
- a specific territory
- a long common history
- its own cultural tradition
- specific social customs and manners
An overview of these aspects is required. If one takes into account that the word »ethnicity« goes back to the Greek word »ethnos« and linguistically equates this with »people« or »ethnicity«, it becomes clear that the ethnic origin within the meaning of § 1 AGG is more than just the origin a place, a region, a country or a common territory. The concept of ethnicity can only apply if there is also a common history and culture, the connection to a certain territory and a feeling of solidarity for a definable group of people. As always with allocation decisions based on an overall view of a large number of criteria, there are gray areas in the edge areas.
Earlier decision of the Stuttgart Labor Court
Nine years ago, the Stuttgart Labor Court had to decide whether a failure to hire a plaintiff who came from the former GDR could constitute a violation of the AGG (ArbG Stuttgart, ruling of April 15, 2010 - 17 Ca 8907/09). The applicant at the time was sent back her application documents with the comment "Ossi -". Because of this, the plaintiff felt discriminated against and demanded compensation in accordance with Section 15 (2) of the AGG. The decisive factor was whether the AGG prohibits discrimination based on an East German origin.
The Stuttgart Labor Court denied the assumption of an ethnic group for people from East Germany. It recognized that the designation "Ossi" can be meant in a discriminatory way and that the plaintiff felt this to be the case. However, this does not constitute discrimination on the basis of ethnic origin. It is true that the feature "territory" could speak for the assumption of an ethnic group for people of East German origin. However, there is a lack of a uniform common language, since dialects from Saxon to Low German are also spoken in the eastern German states. From the point of view of the Stuttgart Labor Court, the assumption of a common history was also far from being possible, since the term »Ossi«, which only emerged after 1989, was too young to be able to assume the formation of a definable population since then. Furthermore, the fact that the former GDR and the Federal Republic of Germany have developed differently since 1989 does not lead to the assumption of a definable ethnic group. The common history since the abolition of small states, the common culture of the past 250 years and the common language (apart from dialect differences) made it clear that neither Bavaria nor Swabia nor »Wessis« or »Ossis« can represent their own ethnic group.
Current decision of the Labor Court in Berlin
This is how the labor court of Berlin recently saw it (ArbG Berlin, judgment of August 15, 2019 - 44 Ca 85/80/18). The deputy department head of a newspaper publisher sued his employer at the labor court in Berlin for compensation, damages and compensation for pain and suffering in the amount of EUR 800,000. The background to the lawsuit was alleged stigmatization and humiliation by two superiors because of his East German origins. According to the labor court in Berlin, the employee is not entitled to compensation under the AGG, as there is no discrimination based on ethnic origin or ideology. The labor court in Berlin was obviously of the opinion that people of East German origin cannot represent an ethnic group within the meaning of Section 1 AGG.
End of discussion?
It is questionable whether this is the end of the discussion. With regard to the evaluation of an East German ethnic origin, the decisions of the labor courts in Stuttgart and Berlin will probably be able to be followed. However, insofar as the Stuttgart Labor Court rules out discrimination against Swabians, Bavaria (exclusively the Franks who settle in the state) or Frisians because of their ethnic origin, this seems less clear, as these groups have a number of characteristics of an ethnic group: (Relative) specific territory, common history and cultural tradition, customs and traditions, common language in the form of dialects, etc. Which flowers the identification with this origin can produce can sometimes be seen on weekends in the football stadiums of the republic.
As an employer, you would do well not to make your hiring decisions dependent on whether the applicant is Saxon, Friesian or Swabian, but - as usual - to be guided by objective and factual considerations. Then you are on the safe side here too.
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