Expert opinion on the expansion of the protection against discrimination
Anti-Discrimination Agency: discrimination based on citizenship must be banned/Gaps in protection also exist with regard to language and family status

Year of issue 2019
Date 2019.11.29

Does the General Equal Treatment Act (AGG) still suffice in its present form? In many European countries, protection from discrimination extends beyond the characteristics of age, disability, ethnic origin, religion/beliefs, gender and sexual identity that are enshrined in German law. As a comprehensive expert opinion commissioned by the Federal Anti-Discrimination Agency finds, an expansion and specification of the grounds for protection would also strengthen those affected in Germany.

"Three in ten enquiries to our legal counselling team concern cases of discrimination that lie outside the list of characteristics currently covered by law", stated Bernhard Franke, acting head of the Federal Anti-Discrimination Agency, upon publication of the opinion. "Numerous cases show us that the current area of protection is too narrowly defined". As an example, Franke mentioned the Kuwait Airways case, in which the company refused to carry an Israeli citizen. The court did not find this to be a form of discrimination, since citizenship was not a protected characteristic. "Especially in this area, a specification of the General Equal Treatment Act is easily accomplished and an absolute imperative."

Therefore, the Rechtsexpertise zum Bedarf einer Präzisierung und Erweiterung der im Allgemeinen Gleichbehandlungsgesetz genannten Merkmale (legal opinion on the need to specify and expand the characteristics named in the General Equal Treatment Act), which was drafted by the Ernst & Young Law GmbH, proposes inter alia an assessment of the following areas:

Legal specification of the characteristic of ‘ethnic origin’ with regard to ‘language’ and ‘citizenship’

So far, neither language nor citizenship are explicitly protected by the General Equal Treatment Act. Citizenship falls under discrimination on grounds of ‘ethnic origin’ in cases where it constitutes a surrogate characteristic and the victim was really discriminated against based on their ethnic origin. The situation is similar when it comes to language. If the characteristic of ‘ethnic origin’ was specified accordingly, both aspects could be explicitly included within its scope of protection. This would give substance to the legal protection and prevent legal uncertainties.

Legal clarification: protection against discrimination on grounds of gender and gender identity

According to the current legal situation, discrimination against trans*- and intersexual persons either falls under the characteristic of sexual identity or under that of gender. Here it needs to be clarified that gender identity definitively falls under the protected characteristic of ‘gender’. In this context, Belgium could serve as a role model. The country adopted clear legislation according to which unequal treatment on grounds of gender reassignment, gender identity and gender expression constitute gender-based discrimination.

Potential inclusion of the discrimination characteristic ‘family status’

In some countries, categories such as marital status and partnership/family status/civil status/family relationships are also protected. Germany is also considering expanding its categories. Personal living situations, such as married person status or single parent status, or the existence of underage children or relatives with care needs are not currently covered and protected by the AGG. Marriage and family, however, enjoy special protection, both under Basic Law and at European level.
At the same time, counselling enquiries to the Anti-Discrimination Agency show that it is precisely within the area of the labour and housing market that discrimination based on family situation occurs time and time again. This is why an expansion of the discrimination characteristics should be considered.

Considering the inclusion of ‘adverse socio-economic status’ as a characteristic

Poverty and social exclusion can increase the risk of discrimination. Conversely, the discrimination someone has suffered might be one of the underlying causes of their poverty and social exclusion. In most cases, however, discrimination on grounds of socio-economic status occurs in combination with other characteristics such as gender or age. Therefore, according to the authors of the legal opinion, legal insecurities with regard to the definition and the need for clarification of the scope of application still exist.

Background: The General Equal Treatment Act entered into force in 2006 and implements four EU directives into German law. Many EU member states go beyond the characteristics specified in these directives and protect additional characteristics, such as social origin, nationality, family or civil status or physical appearance. Other countries, such as Finland for instance, work with an open-ended list of characteristics.

The Federal Anti-Discrimination Agency (ADS for its initials in German) was established when the General Equal Treatment Act (German abbreviation: AGG) entered into force in August 2006. This Act aims to prevent or eliminate any discrimination on grounds of racism or ethnic origin, gender, religion or belief, disability, age or sexual orientation.