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Germany: Reports from a developing country: On the failure of the anti-discrimnation law and the perspectives thereafter by Marcus Lippe*

01 May 2006

The committee created by the Upper House on 8 July 2005 represented its second attempt to implement EU Directives relating to anti-discrimination measures in Germany (1). Public debate accompanying the issue gave the impression that the government's draft law, as passed by the Lower House, was going further than the EU Directive required, while opposition parties demanded that the Directives be implemented in full. A closer look at the situation reveals a different story. Ideological turf wars and party political battles have been fought out on the backs of those the law is intended to protect. Nonetheless, the legal situation for the victims of discrimination is not as hopeless as the failure of the German Anti-Discrimination Act (ADA) makes it appear.

Daily discrimination

The failure of the law and the polemical discussion (2) accompanying it demonstrate that, in the field of anti-discrimination politics, Germany is still a developing country. Statistical evidence supports this claim. The Eurobarometer Survey of May 2003, for instance, found that only around two thirds of all German citizens are opposed to discrimination on grounds of ethnic origin, religion, sexual identity, age, gender or disability. Germany lies far behind the European average and is the worst in Europe.
Significantly, there is no single study on the extent of discrimination although some studies exist in the area of employment. (3) A study in 2000 on discotheque entry policies in Brandenburg (a region around Berlin) concluded that one third of those checked clearly discriminate about who they allow entry. Three young men of non-German ethnic origin visited 15 discotheques to test the results. Six venues rejected them at the door, usually with the excuse that they were full, despite other white guests being granted entry (4). Other facts on discrimination under civil law are limited to news articles. There are numerous reports, for example, of estate agents and landlords refusing to sign contracts with foreigners (5). Further, when a German insurance company failed in its attempt to significantly increase the premium of its automobile liability insurance for Turkish, (then) Yugoslav and Greek citizens, some companies tried to stop its insurance salesmen from recruiting foreigners by reducing or scrapping the commission for the recruitment of non-German customers (6). Another example appears to be the rejection of interested customers by gyms: "headscarf-wearing women"(7), foreign women, but also Germans of Turkish origin are, according to news reports, refused membership when company rules on "foreigner quotas" are exceeded (8). When confronted with their discriminatory behaviour, the businessmen argued that members of the rejected group would be unreliable in their payments, that they had a tendency towards vandalism or that they would harass other customers. With regard to discrimination against disabled people businessmen made even more scandalous remarks (9).

What would be possible

The EU Directives oblige Member States to implement effective legal protective mechanisms against discrimination (10). Member States, including Germany, are required by EU law to implement the Directives into national law within a certain timeframe. For the Anti-Racism and the Employment Equality Directives, this time limit has already lapsed.

Regarding gender and ethnic origin, the protections offered under the EU Directives are extensive as it also applies to civil law contracts and not only to employment in the broad sense (11). Unfortunately, this comprehensive protection is not extended to other areas. It is also regrettable that the institutional discrimination of refugees was removed from the scope of the Directives, which does not stipulate a refugee law free from discrimination. This should not come as a surprise considering the increasing number of hostile immigration policies in EU law-making. The limited nature of the clause tha