Prohibition of Discrimination

Definition and legal basis of the prohibition of discrimination

Das Prohibition of discrimination is a central legal principle in national and international legal systems that prohibits the disadvantage of individuals or groups based on certain personal characteristics. It serves to protect human dignity, equal opportunities, and social participation, and is particularly enshrined in constitutional and human rights protection. The prohibition of discrimination thus forms an essential part of modern constitutional states and is specified through numerous norms and regulations.

Historical development

The prohibition of discrimination developed in the course of international human rights protection. As early as the Universal Declaration of Human Rights (UDHR) of 1948, Article 2 enshrined a prohibition of discrimination. The further development of these principles is reflected in various international and national legal instruments, such as the European Convention on Human Rights (ECHR), the Charter of Fundamental Rights of the European Union (CFR), or the constitutions of the states.

National Law: Prohibition of discrimination in Germany

Constitutional basis

In Germany, the prohibition of discrimination is constitutionally regulated in Article 3 of the Basic Law (Grundgesetz, GG). Paragraph 1 stipulates the equality of all people before the law, while Paragraph 3 explicitly prohibits disadvantage or preferential treatment due to gender, descent, race, language, homeland and origin, faith, religious or political opinions, and a disability.

Excerpt from Article 3 GG:

• Paragraph 1: All persons shall be equal before the law.
• Paragraph 2: Men and women have equal rights.
• Paragraph 3: No person shall be disadvantaged or favored because of their sex, their ancestry, their race, their language, their homeland and origin, their faith, their religious or political opinion. No person shall be disadvantaged because of their disability.

Statutory provisions

General Equal Treatment Act (AGG)

The General Equal Treatment Act (AGG), also known as the Anti-Discrimination Act, specifies the prohibition of discrimination for working life and everyday life. It protects against disadvantage for reasons of race, ethnic origin, gender, religion or belief, disability, age, or sexual identity. The AGG regulates claims, procedures, and sanctions in cases of violations of the prohibition of discrimination.

Other statutory regulations

Other areas of law also contain specific prohibitions of discrimination, such as in social law (§ 33c SGB I), school law, tenancy law, criminal law, or public service law.

International and European law

European Union

The Charter of Fundamental Rights of the European Union (CFR), especially Art. 21, contains a comprehensive prohibition of discrimination. In addition, there are numerous EU directives that explicitly provide protection mechanisms against discrimination, particularly in the labor market (e.g., Directive 2000/43/EC on equal treatment regardless of racial or ethnic origin).

Other international human rights treaties

Key international agreements such as the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR) lay down the prohibition of discrimination as a binding human right. Conventions such as the UN Convention on the Rights of Persons with Disabilities (CRPD) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) are also of particular significance.

Scope of application of the prohibition of discrimination

Labor law

The prohibition of discrimination is applied extensively in labor law, for example in recruitment, working conditions, remuneration, promotion, and dismissals. Employers are required to take measures to prevent disadvantage of employees.

Civil law relationships

In civil legal transactions, e.g., in renting housing, access to services, and concluding contracts, discrimination is likewise prohibited. The prohibition of discrimination protects those affected from disadvantage and offers them claims for damages and injunctive relief.

Public administration and state action

State authorities are required to provide equal treatment and may not make unjustified distinctions in administrative procedures or when enacting legal acts.

Terms and distinctions

Direct and indirect discrimination

• Direct discrimination occurs when a person is directly disadvantaged because of a discriminatory characteristic.
• Indirect discrimination refers to measures or practices that appear neutral but in fact disadvantage members of certain groups.

Positive measures (affirmative action)

The prohibition of discrimination does not exclude certain measures to eliminate existing disadvantages (positive measures). The aim is to achieve actual equal treatment.

Enforcement of the prohibition of discrimination and legal consequences

Legal protection and claims

Affected persons may seek protection and remedy in courts and/or anti-discrimination offices. Respective claims may include, for example, compensation for damages, injunctive relief, removal of disadvantages, and, if applicable, compensation.

Reversal of the burden of proof

The AGG provides in certain cases for a reversal of the burden of proof in favor of the person who has been disadvantaged. If there are indications of discrimination, the other side must prove that no disadvantage occurred.

Sanctions and consequences in case of violations

Violations of the prohibition of discrimination may have consequences under labor, civil, and even criminal law. Especially in employment relationships, possible consequences include warnings, dismissal, or claims for damages.

Significance and evaluation

The prohibition of discrimination is a central component of the rule of law, democratic value order, and social justice. It guarantees that no one is excluded, disadvantaged, or favored because of personal characteristics and makes a significant contribution to an open, pluralistic society.

References

• General Equal Treatment Act (AGG)
• Basic Law for the Federal Republic of Germany (GG)
• Charter of Fundamental Rights of the European Union (CFR)
• European Convention on Human Rights (ECHR)
• European Union anti-discrimination directives
• International human rights treaties (UDHR, ICCPR, CRPD)

See also

• Principle of equal treatment
• Human rights
• Equality
• Anti-discrimination policy

Note: This article provides a comprehensive overview of the prohibition of discrimination from a legal perspective for a legal lexicon, addressing numerous aspects relevant to detailed research and understanding.

Frequently asked questions

Does the prohibition of discrimination apply in both the public and private sectors?

In Germany, the prohibition of discrimination applies in both the public sector and the private sector, although the legal bases are structured differently. In the public sector, i.e., for state institutions and their actions, the prohibition of discrimination follows directly from the Basic Law, especially Article 3 GG, which guarantees equality before the law and expressly prohibits any disadvantage for reasons of race, descent, language, homeland and origin, faith, or religious or political opinions. Authorities, courts, schools, or other public institutions are obliged to comply with the prohibition of discrimination in all their actions and decisions. In the private sector, for example in employment relationships, rental agreements, club memberships, or services, the General Equal Treatment Act (AGG) primarily applies, which contains detailed regulations for protection against disadvantages based on specific characteristics. Private employers, landlords, or service providers are required to observe the prohibitions of disadvantage specified therein. However, in private law there are exceptions, such as in the so-called ‘immediate family environment’ (§ 19 Sec. 1 AGG), so the prohibition of discrimination does not apply without limitation here.

Which characteristics are protected under the prohibition of discrimination?

The prohibition of discrimination legally protects certain personal characteristics against disadvantages. In German law, Article 3 GG in particular names race, ethnic origin, gender, descent, language, homeland and origin, faith, religious or political beliefs, and disability as particularly worthy of protection. The General Equal Treatment Act (AGG) expands this list and explicitly includes race, ethnic origin, gender, religion or belief, disability, age, and sexual identity (§ 1 AGG). This list is exhaustive, meaning discrimination for other reasons is not covered by the AGG unless it violates other special laws. In certain areas of life, such as public service, the prohibition of discrimination may, however, also extend to other characteristics under further legal sources or the general duty of equal treatment.

What must an affected person do in the event of discrimination at work to assert their rights in court?

In the event of discrimination in working life, certain deadlines and formal requirements must be observed in order to take legal action against disadvantages. The AGG stipulates that those who are disadvantaged must generally assert their claim for compensation or damages in writing to the employer within two months of becoming aware of the disadvantage (§ 15 Sec. 4 AGG). If the claim is asserted and the employer does not provide a remedy, a claim may be filed with the competent labor court within a further three months. The burden of proof is divided: the victim must present indications that suggest a disadvantage for a reason protected by the AGG. If this is successful, the employer must prove that there was no violation of the prohibition of discrimination. The person concerned may also seek support from the works council, an anti-discrimination office, or trade unions.

Are there legally permissible exceptions to the prohibition of discrimination?

Yes, the prohibition of discrimination is subject to certain permissible exceptions under German and European law. For example, in employment law, different treatment may be permitted if a particular characteristic (such as gender or religion) constitutes a ‘genuine and determining occupational requirement’ (§ 8 AGG). An example is an acting role that requires a particular gender or the requirement of a certain denomination in religious institutions. Positive measures, so-called ‘affirmative action’, i.e. measures to promote disadvantaged groups (see § 5 AGG), are also permissible. In civil law, exceptions may exist as well, for example, in the conclusion of private contractual relationships within the closest family sphere (§ 19 Sec. 1 AGG). However, exceptions are to be interpreted narrowly and must be proportionate and objectively justified.

What legal remedies are available against state discrimination?

Various legal remedies are available to persons affected by discrimination by state action. Initially, in the context of an administrative procedure or against an administrative act, an objection may be lodged, followed by legal action at the administrative court. The prohibition of discrimination can also be asserted in a constitutional complaint to the Federal Constitutional Court, for instance, when a violation of Article 3 GG is alleged. In certain cases, especially involving discrimination based on race or ethnic origin, recourse may be had to the European courts, such as the European Court of Human Rights (ECtHR), provided domestic legal remedies have been exhausted. Additionally, discrimination may be reported to specialized independent bodies, such as the Federal Anti-Discrimination Agency, although these agencies do not have judicial or sanctioning powers.

How does the prohibition of discrimination relate to freedom of contract?

The prohibition of discrimination imposes legally binding limits on contractual freedom under civil law in certain areas. In principle, private autonomy applies, meaning individuals are free to conclude or refuse contracts as they choose. However, the AGG expressly restricts this freedom within its scope of application regarding the specified discriminatory grounds. In so-called mass transactions of daily life (such as shopping, using services, renting housing) or in employment, no disadvantage may occur on the basis of protected characteristics. At the same time, there are restrictions here as well, for example, if objective reasons justify the different treatment (§ 20 AGG). The regulation is intended to balance the interest in access to goods and services free from discrimination and the preservation of private autonomy.

What legal consequences are there for violations of the prohibition of discrimination?

If a violation of the prohibition of discrimination is proven, different legal consequences may follow. In employment law, the affected person may be entitled to removal of the disadvantage, damages, as well as reasonable compensation for immaterial harm (§§ 15, 21 AGG). In civil law, a disadvantaged contract party may sue for performance, damages, or injunctive relief (§ 21 AGG). Furthermore, associations, organizations, or companies can be obliged by courts to change their business practices in case of violations. In certain cases – such as discrimination related to racist motives or incitement to hatred – criminal consequences may also arise, such as under § 130 German Criminal Code (incitement to hatred). Authorities can also intervene against discriminatory actions as part of legal supervision. In practice, it has also become evident that violations can result in considerable reputational harm and, thus, economic losses.