Reform of regulations on anti-discrimination, harassment and violence in the workplace

A workplace free from discrimination, violence and harassment of any kind is the goal of various political initiatives and legislative measures. However, the vast majority of companies will also claim that they have created all the foundations for a discrimination-free working environment that the General Equal Treatment Act (AGG) has provided for since it came into force in 2006.

In this respect, current efforts at a political level, which could bring about changes and even stricter requirements for non-discriminatory organizations in the coming months, must be observed with interest.

Ratification of the 190th Convention of the ILO

In June 2023, Germany ratified the 190th Convention of the ILO (International Labor Organization) in order to strengthen the rights of those affected by violence and harassment in the workplace (link in the comments).

This international convention is the first to define what is meant by harassment and violence in the workplace. In addition to general definitions, further areas of application in working life, such as business trips and break rooms, are also explicitly covered. In addition, self-employed persons, job applicants and trainees are also explicitly covered by the scope of protection.

The convention is intended to generally prohibit any behavior that humiliates, degrades, harasses or physically or psychologically attacks people in their working environment. In particular, it also aims to prevent gender-specific harassment. Now that Germany has also ratified the Convention, it has committed to implementing it in law and practice within twelve months.

In this respect, the introduction of additional prohibition and sanction standards in the General Equal Treatment Act (AGG) would be conceivable for national implementation, as called for by the German Trade Union Confederation.

Reform of the General Equal Treatment Act (AGG)

However, the AGG is also set to undergo changes with another national initiative. The Federal Commissioner for Anti-Discrimination, Ferda Ataman, presented a proposal for the reform of the AGG in Berlin on July 18, 2023 (link in the comments). This proposal is intended to "form the basis for the AGG reform announced by the governing parties in the coalition agreement."

According to the reform proposals, the list of prohibited characteristics under the AGG is to be extended to include "nationality", "social status" and "family care responsibilities", among others. In addition, minimum and maximum age requirements are to be prohibited in future without exception. From a recruiting perspective, it would be very difficult to prevent discrimination on the basis of (elusive) social status. The demand to include "freelancers" in the scope of the law is also noteworthy. If self-employed persons are also to be covered in the future, this could lead to corporate selection decisions outside the HR area also having to be put to the test.

Ms Ataman would also like to make it easier to prove discrimination in court. Her paper states: "The requirement to prove discrimination and circumstantial evidence should be reduced to prima facie evidence, i.e. the overwhelming probability is sufficient." This will also be viewed critically by companies, as the mere requirement of circumstantial evidence has already contributed to the promotion of unjustified claims.

Another very important requirement of the reform is the extended right to bring legal action. The current deadline for asserting claims after the occurrence of discrimination is two months. However, an extension to twelve months is now being called for. In this respect, however, it would be critical with regard to application processes that every rejection of an application could in future give rise to fears that an AGG claim will be made for a whole year.

PBC legal takeaways: Companies pursue the goal of guaranteeing employees a workplace free of discrimination and harassment, not least out of strong self-interest. In principle, this does not require any tightening of the law. In this respect, there must be a concern that further legal regulation in this area will require established structures to be redesigned and that the creation of new incentives for legal action will also trigger undesirable developments. It remains to be seen whether and how the ILO Convention will be implemented in German law and whether there will be further reforms to the AGG in the coming months. HR and recruiting departments should keep an eye on these developments.