What is workplace discrimination
Discrimination in the workplace: we can help you
The most common cases of discrimination in the workplace
Discrimination in the workplace can take many different forms. However, as multifaceted as the problem is, there are certain variants of disadvantages that are repeated so often that, from the point of view of many employees, they have almost become normal. Many of those affected therefore do not recognize existing violations of the AGG or have no knowledge of their specific rights and claims. The most common forms of discrimination in the workplace include the following groups of cases:
Discrimination: exclusion from application procedures
Discrimination in the world of work often already occurs when people are not (yet) employed by an employee, but only themselves are in the application process: Many applicants are rejected in advance due to a discriminatory characteristic. For example, younger women are excluded from an application process because employers fear an imminent pregnancy. It is also possible that a dark-skinned applicant will not be invited to an interview because of his skin color, even though he is just as well qualified as other applicants.
By behaving in this way, the employer violates the prohibition of discrimination and a claim for damages arises. In many cases, the amount cannot be clearly determined because the applicant has to prove material damage. So he has to show that the position offered would have been filled by him without discriminatory disadvantage. If this is possible and if the employer cannot prove that the discriminated applicant would not have been hired in any other way, the person concerned is entitled to a maximum of three months' compensation as compensation. The same applies if employees are not taken into account during a promotion. If the disadvantaged person can prove that he would have achieved a higher income without discrimination, he is entitled to the lost amount as compensation.
Discrimination: Sexual Harassment
Sexual harassment is not only punishable, it is also one of the most common forms of discrimination within the meaning of the AGG. According to a survey by the Federal Anti-Discrimination Agency in 2015, more than every second employee has experienced or seen sexual harassment at work. In a large number of cases, women are affected. One speaks of this form of discrimination, for example, when colleagues come unnaturally close without necessity, perhaps touching the buttocks or chest seemingly by chance, making sexual innuendos or showing pornographic pictures. Such behavior violates the dignity of the person concerned and should not be accepted - even if the insult, shame or humiliation may not be intended as such. The decisive factor is the feelings of the harassed person.
If there is discrimination in the form of sexual harassment, those affected are entitled to claims for damages. The right to refuse performance regulated in the AGG can in principle also be exercised in certain cases, but this is only recommended after consulting a specialized lawyer. He can assess whether the conditions for a refusal to perform are met, i.e. whether absenteeism is proportionate to the extent of the harassment, whether the employer has been adequately informed, and whether the measures taken are insufficient or unsuitable.
According to a Forsa survey, 20% of all employees have already experienced age discrimination. This can be done in different ways. Even cases in which a job advertisement is explicitly looking for applicants from a certain age group represent discrimination. According to the AGG, different wage levels or irrelevant differences in the number of vacation days are discrimination based on age. The same applies if employees who are “too young” or “too old” are ignored during promotions. However, in cases of age discrimination, the existing claims are seldom asserted: many employees are neither sufficiently aware of the prohibition of discrimination nor their specific rights or consider unequal treatment for reasons of age to be normal and acceptable.
It happens again and again in working life that pregnant women do not get a job or are passed over for promotions. In these cases, too, discrimination is not permitted and violates the AGG. It is explicitly stated here that discrimination against pregnant women falls under direct discrimination because of gender. Against this background, case law also regularly decides in favor of pregnant women in relevant cases. For example, an employee was awarded five-digit compensation by the Berlin Regional Labor Court (LAG) because she was not taken into account in a promotion. In advance, the person concerned had been signaled good chances of finding the job. In addition, she had already represented the vacant position several times. When the position finally became vacant, the worker was expecting a child. A colleague was promoted. The court ultimately recognized the evidence that the person concerned had been passed over due to her pregnancy. The employer could not prove otherwise and had to pay damages.
The LAG Cologne also decided in favor of a pregnant woman. An employer had accused an employee of fraudulent misrepresentation because she had withheld her pregnancy when she was hired as a pregnancy replacement for another employee. The court rejected the allegation that there was no obligation to provide information. The question of pregnancy always has a gender-discriminatory effect and is therefore inadmissible within the meaning of the AGG.
Discrimination based on religion and practice
In which cases there is an unjustified disadvantage on the basis of religious affiliation is often not easy to see, since different interests, rights and obligations collide. The most important example in this context is wearing a headscarf at work. An employer may not prohibit Muslim women from doing this in principle. Nevertheless, those affected are often asked to take off their headscarves, or they are not even invited to an interview. The employer usually justifies this with the desire to show neutrality to the outside world, or with customer needs. In fact, the employer also has the right to present himself neutrally and to require employees to act in this way. The individual case assessment can therefore be difficult and complex: It must be weighed up which right - that to exercise religion and belief, or that to neutrality - is preferred. In general, it can be said that a claim to neutrality only exists if representative tasks are actually carried out in the context of the position. In addition, the claim is linked to the condition that it may not relate exclusively to religious convictions. It must also touch political opinions and worldviews.
If applicants who wear a headscarf are excluded from the application process from the outset, this is in any case inadmissible. Only if the person concerned does not agree to take off the headscarf during working hours after an interview, the employer may invoke the neutrality claim. Otherwise, of course, claims for compensation also exist in the case of this type of discrimination.
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