Protection gaps and recommendations
- Fact sheet on the research project -
The General Equal Treatment Act (German abbreviation: AGG)
Students at public and private institutions of higher education are protected by the ban on discriminative harassment in accordance with Section 3(3) of the AGG. Besides, the provisions to alleviate the burden of proof (Section 22, AGG) and the provisions in support of anti-discrimination organisations (Section 23, AGG) are also applicable to the entire university context. However, Section 3(4) of the AGG that guarantees direct protection against sexual harassment applies only to university employees, not to students. The requirements set out in Section 3(3) of the AGG that need to be met to constitute an offence are higher than those stipulated in Section 3(4) of the AGG. In addition to the element of violation of dignity, a hostile environment must exist. Hence, the non-applicability of Section 3(4) of the AGG represents an enormous protection gap for students.
Higher education laws of the Laender
All 16 Federal Laender have used their legislative power to pass their own higher education laws. Hence the responsibility to implement and enforce gender equality and the ban on discrimination rests with the university. Yet, the form of implementation varies widely from Land to Land. The expert opinion points out that only few universities have sufficiently clear rules on the question of whether and how students may receive protection against sexual harassment. Besides, sexual harassment is only rarely made explicit as an element of the ban on discrimination.
Autonomous law of the universities
The autonomous law of universities comprises agreements that stipulate the ban on discrimination both for civil servants and university employees. To also include students, universities are authorised, yet not obliged, to establish guidelines prohibiting sexual harassment. These include principles and definitions, preventive measures, procedures in case of violation of the ban as well as sanctions. Furthermore, they provide information about contact persons at the university. The guidelines studied in the expert opinion differ widely, both in the number of rules they include and in the scope of those rules.