Have you experienced discrimination in a job?

Discrimination in the workplace

Discrimination against an employee on the basis of certain personal characteristics can occur both consciously and unconsciously. The legislature and case law have standardized a large number of case groups and defined legal consequences for discrimination in the workplace. You can find out what employers should pay attention to and whether employees can sue for recruitment, compensation or paid time off in the new blog for labor law from the law firm AHS Rechtsanwälte Köln and Bonn.

Basics:

The legislature protects certain groups of people through labor law regulations. The most important basis is the General Equal Treatment Act (AGG). If employees from one of the legally protected groups of people because of belonging to this group of people disadvantaged, there may be a case of discrimination. Discrimination in the workplace can have legal consequences if those affected defend themselves legally.

It is difficult to decide in individual cases whether there is discrimination in the workplace. In case of doubt, affected employees should first talk to their employer. If no solution can be found, employees and employers should definitely seek advice from a lawyer specializing in labor law.

Discrimination in the workplace:

In labor law, discrimination is understood as a unjustified Disadvantage. The criterion "unjustified" is decisive. The disadvantage is unjustified if it is due to certain reasons which the employee cannot influence and which have nothing to do with his performance.

These discriminatory reasons are listed in the General Equal Treatment Act (AGG), the Works Constitution Act (BetrVG) and in the Basic Law (GG) (see below).

The AGG and the BetrVG (if there is a works council) are applicable to all labor law directly between employer and employee; the GG does not have its effect directly between employer and employee, but does so indirectly. Indirectly means that the labor courts must also observe the fundamental rights protection of the employee when reaching a judgment.

First of all, a distinction must be made between direct and indirect disadvantages.

A immediate disadvantage i.S.d. § 3 Abs. 1 AGG exists when a person experiences less favorable treatment than another person in a comparable situation AND the unequal treatment occurs because of a discriminatory characteristic.

A indirect disadvantage Within the meaning of Section 3 (2) AGG, there are apparently neutral regulations, measures, criteria or procedures that actually have a discriminatory effect. For example, certain groups are preferred for an objective reason (e.g. permanent employees versus fixed-term employees or permanent employees versus temporary workers). If the disadvantaged group now consists largely of people who are protected by the AGG (for example women or men), then this group is indirectly disadvantaged.

A disadvantage can exist in all possible facets, for example different treatment with regard to wages or special payments, vacation planning or promotions.

The keyword of harassment in Section 3 (3) of the AGG includes, in particular, cases of bullying, verbal and non-verbal behaviors aimed at violating the employee's dignity.

Sexual harassment is described in detail in the fourth paragraph of Section 3 AGG.

Bans on discrimination in labor law:

The General Equal Treatment Act (AGG) prohibits discrimination on the grounds of § 1 AGG

  • ethnic origin or for reasons of race,
  • of gender,
  • religion or belief,
  • a disability,
  • of age or
  • sexual identity.

The Works Constitution Act (BetrVG) also adds trade union activity in Section 75.

In Article 3, Paragraph 3 of the Basic Law, the Basic Law additionally and explicitly prohibits preferential treatment or disadvantage because of language or political views. However, these features are already indirectly covered by the protection of the AGG and the BetrVG.

If employees are directly or indirectly disadvantaged or (sexually) harassed because of one of the above-mentioned characteristics, there is discrimination within the meaning of labor law.

Rights in the event of discrimination in the workplace:

First of all, employers who feel discriminated against in the workplace can have this checked by the competent authority, see § 13 AGG. The employer must set up a department for this or appoint a person who is responsible for complaints relating to discrimination. The complaint must then be examined and the result of the examination communicated to the employee. In case of doubt, the employer or employee should seek professional advice from a lawyer specializing in labor law.

According to § 14 AGG, those affected have the right to refuse performance if there is discrimination on the basis of harassment or sexual harassment. In such cases, workers are allowed to stay away from work without waiver of wages until the employer takes appropriate measures to stop the harassment. Because of the legal uncertainty, affected employees should also only make use of this after consulting a lawyer specializing in labor law.

Pursuant to Section 15 of the AGG, employees can receive compensation in the event of a violation of the prohibition of discrimination. A distinction must be made between material and immaterial damage. The material damage can usually be quantified, for example because an employee was not promoted because of a discriminatory disadvantage and is therefore not granted a salary increase. The employer must have caused the material damage willfully or negligently.

In the case of non-material damage (= similar to “compensation for pain and suffering”), the employer does not even have to be responsible for the discrimination, i.e. not have acted willfully or negligently. It is therefore already sufficient that the employee had to experience any discrimination at all. The non-pecuniary damage is usually dealt with by the labor courts at least three monthly salaries.

However, if an employee is disadvantaged because of discrimination and is therefore not hired and would not have been hired even without discrimination, then the non-pecuniary damage is usually included maximum three monthly salaries (corresponds to the established case law of the labor courts).

Incidentally, there is no entitlement to recruitment, see Section 15 (6) AGG.

The deadlines for asserting claims from the AGG result from Section 15 (4) AGG and are usually two months.

Case law on discrimination:

According to a current ruling by the Schleswig Holstein Administrative Court, a lawyer is entitled to compensation under the AGG because her application for the higher police force was not considered due to her height of 1.58 meters. The non-consideration is not justified by objective reasons.

The Federal Labor Court (BAG) gave the right to a shoe manufacturer who grants two additional days of vacation to employees who have reached the age of 58. A younger colleague felt that she had been discriminated against because she was younger because she was not given any additional vacation days. The FOPH recognized that physical work in shoe production is very strenuous and that two additional days of rest for older workers is an objective justification for the different treatment of older and younger workers.

In addition, the BAG stated in a ruling that asymptomatic HIV infection can represent a disability within the meaning of the AGG. If a newly hired employee is dismissed because of his / her HIV infection, although there is actually no objective reason for this, this constitutes discrimination on the basis of disability. The characteristic of disability within the meaning of the AGG can also be present in the case of very overweight.

Summary:

  • Under a discrimination is that factually unjustified Understanding employee disadvantage.
  • The disadvantage must not because of for a reason in the cases specified by law.
  • The most important features of discrimination are listed in the AGG.
  • Affected have a Right to refuse performance in the event of harassment or sexual harassment in the workplace.
  • In addition, employees who have been discriminated against can claim damages.
  • A Right to be hired cannot be sued.

Help with labor law issues:

Employers can very quickly and often unwittingly or unwittingly get into labor law disputes because of discrimination. Only a specialist lawyer for labor law knows the current case law of the labor courts and all labor law pitfalls that employers can get into. But employees should also seek advice from a lawyer specializing in labor law if they feel discriminated against in the workplace, because usually only a lawyer can judge with certainty whether there is actually discrimination and when it may even be objectively justified.

Dr. Patrizia Antoni is a specialist lawyer for labor law. She will be happy to advise you on all labor law issues. Make an appointment in the offices of AHS Rechtsanwälte in Cologne or Bonn.