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The General Equal Treatment Act (AGG) of Germany is being advertised as “protects against discrimination” and “protects against racial discrimination” (*01). Section 12 (1) of the AGG obliges the employer to take protective measures. But is the protective effect of the AGG really big enough?

Basics

Six years ago (2017), the federal government of Germany determined in its study on experiences of discrimination (*02) that around a quarter (23.3%) of all people with a migration background had been affected by discrimination within the last 2 years (p.101). The most recent study by the Bertelsmann Foundation from 2023 (*03) on that states that around half of all people (52%) with a migration background have been affected by discrimination in the last 12 months (p.26). Even if the study design was not exactly the same, it can be concluded that the efficiency of the protection provided by the AGG has not increased but decreased. And this shows: The existence of such a law is not enough to keep discrimination, racism or bullying at a low level. Of course, this conclusion comes as no surprise to those who are repeatedly affected by it, and certainly not to experts on the subject. As an aside, it should be pointed out that even the evaluation of the AGG by the federal government in 2016 (*04) came to a similar conclusion (p.64): "Examples from other EU countries indicate that ' proactive equality models are clearly more effective in combating systemic and structural discrimination than the legal processing of incidents of discrimination.”

What helps in the operational and official environment?

In my opinion, there are four perspectives that are essential to minimizing discrimination, racism and bullying :
1. ALL employees have to be informed and made aware regularly of the three terms discrimination, racism and bullying.
2. How do managers HAVE TO act when corresponding cases arise in their area of responsibility
3. How HR (Human Resources) employees HAVE TO react when handling relevant cases
4. There HAVE TO BE serious consequences for employees who clearly have a discriminatory or racist attitude.

Regarding point 1, one must unfortunately state that the AGG is not of much help here, because when it comes to the practical implementation of protection (§12 Para. 2), then the employer is suddenly not obliged, but "should" within the framework of training and further education inform the employees about the inadmissibility of discrimination. The fact that education and sensitization for the topics is important results from the fact that in Germany the image of people from distant countries has been shaped very strongly for many decades by one-sided, negative reporting that focuses on problems. If we now meet people who, in our opinion, look as if they come from these far-off countries, heaps of prejudice and stereotyping strikes.

In my experience, point 2 is of the utmost importance for those affected, because there is nothing worse than managers who look the other way, trivialize or even help the perpetrators. Such behavior is not only morally absolutely inappropriate (here one should actually choose even harsher words), it also represents a clear violation of the german Occupational Health and Safety Act (mental stress at work).

Point 3 may seem strange at first glance, because one would actually expect that all employees from the HR / human resources area would be well qualified on this topic. Unfortunately, the reality is sometimes different (cf. *05 : "The personnel administration is now trying to solve the problem in the 'old and proven' way by first reminding those affected of the 'rules of the game that apply to everyone'; of their tolerance appeals not to take everything 'crookedly' and immediately announces that he will be transferred to another post/job in the event that the situation does not improve in the future.").

Implementation

Since the law hardly makes any clear specifications for the four points described, only an inner- company or inner-authority solution will help. The best way would be to conclude a corresponding (service) agreement with the staff representatives (works council/staff council). Such an agreement would have to specify points 1 to 3, define annual information and sensitization, give managers instructions on how to behave when dealing with such cases and also state which procedures are not acceptable (e.g. first organize a joint discussion with alleged perpetrators and alleged victims). This only works if top management takes on the issue, recognizes the need for action and stands behind such an agreement. If this is not the case, the proverb with the fish and the head probably applies. Of course, the staff/works council can definitely show initiative here and submit a draft to the management of the company/authorities. After all, this would certainly be in the interests of the employees.

Sources

*01 : Das AGG schützt

https://www.antidiskriminierungsstelle.de/agg-schuetzt/agg-schuetzt_node.html

*02 : Beigang, Steffen; Fetz, Karolina; Kalkum, Dorina; Otto, Magdalena (2017): Diskriminierungserfahrungen in Deutschland. Ergebnisse einer Repräsentativ- und einer Betroffenenbefragung. Hg. v. Antidiskriminierungsstelle des Bundes. Baden-Baden: Nomos.

https://www.antidiskriminierungsstelle.de/SharedDocs/downloads/DE/publikationen/Expertisen/expertise_diskriminierungserfahrungen_in_deutschland.pdf?__blob=publicationFile&v=6

*03 : Diskriminierung in der Einwanderungsgesellschaft

https://www.bertelsmann-stiftung.de/de/publikationen/publikation/did/diskriminierung-in-der-einwanderungsgesellschaft

*04 : Berghahn/Klapp/Tischbirek, Evaluation des AGG, erstellt im Auftrag der Antidiskriminierungsstelle des Bundes, 2016

https://www.antidiskriminierungsstelle.de/SharedDocs/downloads/DE/publikationen/AGG/agg_evaluation.pdf?__blob=publicationFile&v=12

*05 : Honsa, Hans-Jürgen ; Mobbing und sexuelle Belästigung im öffentlichen Dienst (2008) ; Berlin: Erich Schmidt Verlag GmbH & co.