Non-discrimination
The prohibition of discrimination , including the prohibition of discrimination , forbids treating people unequally because of certain characteristics or facts if this leads to discrimination , i.e. disadvantage or degradation of individuals, without any objective justification. In particular, gender, race, skin color, language, religion, political or other opinion, national or social origin, membership of a national minority, wealth, birth or other status may not be used as distinguishing features.
The prohibition applies as a ban on arbitrariness in democratic states in principle for all state action. How far it applies to actions between private individuals depends on the status a society accords to the conflicting principle of private autonomy and other basic rights .
Basics
Addressee of the ban
The addressee of the ban on discrimination is first and foremost the state in its actions towards citizens. In particular, the prohibition of discrimination serves as a right of defense against attacks by the state and its organs. In contrast, the citizens themselves are not subject to a general ban on discrimination. Rather, their private autonomy basically enables them to behave in a discriminatory manner in everyday life, free from state regulation, without having to provide a justifying reason.
Reservation of the possible
No right of defense, but a right to participate, is asserted if the demand is made that the state or a municipality must to reduce discrimination, i.e. H. Spend money for the purpose of equality or equality. According to the established case law of the Federal Constitutional Court, the obligation to provide corresponding services is subject to the “reservation of the possible in the sense of what the individual can reasonably demand from society”; d. This means that no one can force state or local authorities to adopt budget estimates that the bodies authorized to make decisions consider to be too high: "The legislature is [...] not constitutionally prevented, the actual implementation of these forms of integration is dependent on restrictive conditions [...] to make “, ruled the Federal Constitutional Court in October 1997, when it had to evaluate the forced attendance of a special school by a physically disabled girl and her exclusion from a joint schooling with non-disabled children; because: "The referral of a disabled pupil to a special school does not in itself constitute a prohibited disadvantage".
Following this line of argument, the answer to the question of whether it is possible to legally enforce the joint schooling of disabled and non-disabled children depends above all on the answer to the question of whether integrative schooling is more cost-effective than teaching at a special school. Comparable situations are always to be expected if a right of participation is to be enforced against the resistance of state or municipal authorities.
However, it is questionable whether this interpretation is still tenable after 2009, when the UN Convention on the Rights of Persons with Disabilities came into force in Germany, since Article 24 of the Convention guarantees every child the right to inclusive education at a regular school. In the context of this provision, the “reservation of the possible” leads to the question of what specific support a specific child with special educational needs is “entitled” to even when the resources of a service provider are limited.
Prohibition of discrimination in private law
However, the freedom to differentiate between the frowned upon characteristics when choosing one's contractual partner and structuring the contractual relationship is often considered offensive, especially in the area of occupation and employment, in mass transactions in civil law transactions and in the supply of goods and access to services felt. This has led to the demand for state regulation to protect citizens from discrimination against other citizens.
This creates a tense relationship between the postulate of state protection against discrimination by other citizens and the necessary interference of the state in private autonomy. Fundamental and human rights, such as freedom of religion, play a special role . Their guarantee makes it necessary, for example, to allow a religious community to distinguish (discriminate) according to religious affiliation and B. to refuse the occupation of a religious office by someone of a different or non-believer.
Legal framework
European Convention on Human Rights
The European Convention on Human Rights contains in Art. 14 prohibits discrimination. According to this, it is forbidden to treat people because of their gender, race, skin color, language, religion, political or other opinion, national or social origin, belonging to a national minority, property, birth or any other status to withhold or restrict the rights and freedoms of the Convention.
European legal requirements
FEU Treaty
According to Art. 18 TFEU , EU member states are prohibited from discriminating against EU citizens (note: of another state) on the basis of their nationality , including those that come to the same result using different distinguishing features, i.e. also any hidden discrimination against EU citizens on the basis of their nationality .
With the Treaty of Amsterdam, which was Art. 13 EC Treaty (now Article 19. TFEU) supplements, which expresses the common will to discrimination on the basis of other factors (gender, race, ethnic origin, religion or belief, disability, age or sexual orientation) to fight , not just to create framework conditions , but to take active action against it.
The ECJ ruled that the protection of Directive 2000/78 against discrimination and harassment due to a disability is not limited to people who themselves have a disability.
Guidelines
In addition, several directives have been issued by the Council of the European Union which oblige the member states to prevent certain forms of discrimination in the private sector by means of national legal norms:
- 2000/43 / EG Equal treatment regardless of race or ethnic origin
- 2000/78 / EG Equal treatment in employment and occupation
- 2006/54 / EC Equal treatment of women and men in matters of employment and occupation
- 2004/113 / EC Equal treatment of women and men outside the field of employment
According to this, discrimination on grounds of race, ethnic origin, religion and belief, disability, age, sexual identity and gender should be prevented in the area of employment and occupation , especially in the relationship between employer and employee . In addition, Article 5 of the directive is mandatory
- 2010/18 / EU Parental Leave Directive
the Member States and the social partners to take measures to protect workers against discrimination or dismissal due to the application or use of parental leave .
In addition, in civil law, the characteristics of race and ethnic origin and gender should not be grounds for discrimination.
In order to make protection against discrimination effective, the guidelines require that effective sanctions be provided for violations. Effective legal protection against discrimination should also be provided, which may, for example, require simplification of evidence for those who feel they have been discriminated against in a prohibited manner.
EU Charter of Fundamental Rights
In the Charter of Fundamental Rights , in addition to the general principle of equality in Article 20, which guarantees equality before the law, there are specific prohibitions of discrimination in Articles 21 and 23.Article 21 contains a comprehensive prohibition of discrimination, in particular on the basis of sex, race, skin color, ethnic or social origin, genetic characteristics, language, religion or belief, political or other beliefs, membership of a national minority, property, birth, disability, age or sexual orientation. Art. 23 guarantees the equality of men and women and at the same time establishes a right to support the "underrepresented sex".
Extension of the anti-discrimination law
The EU Commission has decided to extend discrimination beyond the labor market to include the provision of goods and services.
In July 2008 the European Commission submitted a draft for a “Council Directive on the application of the principle of equal treatment regardless of religion or belief, disability, age or sexual orientation”, based on Directive 2000/43 / EC , 2000/78 / EC and 2004/113 / EC - in particular as a supplement to the relevant legislation in the field of employment - is intended to offer protection against discrimination in the areas of health care, education, social security and housing. It would bring the protection against discrimination for the reasons stated therein in line with the level established for the characteristic of ethnic origin in the Anti-Racism Directive 43/2000 .
According to media reports, all states except Germany have since indicated their consent to the proposed new anti-discrimination directive.
Federal Republic of Germany
The prohibition of discrimination describes in Germany repeatedly statutory prohibition to exercise over other individuals or institutions such benachteiligendes behavior without the need for an objective reason. In federal German law, (social) discrimination, unequal treatment and differentiation are sometimes used synonymously.
In essence, this requirement is derived from Article 3 of the Basic Law and applies to state actions. On the basis of this, any state discrimination is forbidden, provided that defense rights are affected, but not all private discrimination . In its case law, the Federal Labor Court had always directly applied the fundamental rights norms in the relationship between employer and employee.
In the course of the development of the Federal Republic of Germany, the prohibition of discrimination became more and more extended to the relationship between private individuals due to the call of the women's movement and the EU treaties and was made more concrete in various areas of law. The most recent example of this is the General Equal Treatment Act (AGG), according to which an employer may not discriminate against individual employees on the basis of their gender in any decisions (dismissals, instructions, career advancement). The Act against Restraints of Competition also regulates a prohibition of discrimination, which prohibits dominant companies from treating competitors differently without an objectively justified reason. The General Equal Treatment Act was introduced to implement the requirements of European law. It is intended to prevent and eliminate unjustified discrimination based on “race”, ethnic origin, gender, religion, ideology, disability, age or sexual identity.
Furthermore, the state equality laws regulate the equality of disabled people and the equality of the sexes.
There is also a prohibition of discrimination against employees, commercial agents , home workers, civil servants and judges who are called up for a military exercise , basic military service or a fitness exercise . This must not result in any disadvantage for them in professional, operational or official terms or in the contractual relationship with the entrepreneur.
France
In the Code pénal , Articles 225-1 to 225-3, the French criminal law prohibits discrimination on the basis of origin, gender, family situation and surname, pregnancy, physical appearance, state of health, disability, genetic characteristics, manners and customs, sexual orientation, age, political Opinion, union activity, real or presumed affiliation or non-affiliation with a race, nation, or religion. From 2004 to 2011, the Haute autorité de lutte contre les discriminations et pour l'égalité (German: High Authority for the Fight against Discrimination and for Equality) was an independent, administrative body that dealt with all violations of French laws or international agreements signed by France in relation to direct or indirect discrimination. In the meantime, these tasks are performed by the Défenseur des droits (German: Commissioner for the protection of rights).
United States
Unlawful discrimination can occur directly or indirectly. In the USA, direct disadvantage includes irrelevant factors such as gender, age, “race”, religion, family status, origin, military rank and disability. A prime example of indirect disadvantage in the USA is the case of Griggs v. Duke Power Company .
Special gender legislation plays a special role in the USA . Exceptions are allowed in working life. Basically, the Fair Labor Standards Act outlaws wage differentiation, but different wages are allowed under Section VII of the Civil Rights Act of 1964 for prison guards and public bath attendants.
United Kingdom
In the United Kingdom , discrimination is governed by the Equal Pay Act of 1970 , which sets comparable pay for comparable work. The Gender Equality Act of 1975 prohibits discrimination based on gender or civil status in the workplace. With the entry into force of the Human Rights Act of 1998 in 2000, equality was comprehensively reorganized.
See also
Web links
- Topic dossier prohibition of discrimination from Humanrights.ch
- Protection against indirect discrimination
- Online manual “Active against Discrimination!” From the German Institute for Human Rights
Individual evidence
- ↑ BVerfGE 33, 303 [333]
- ↑ BVerfGE 96, 288
- ↑ http://www.gew-nds.de/sos/4-1999-Integration-Kosten.pdf
- ↑ Prohibition of discrimination. (No longer available online.) In: EUROPA> Glossary. European Communities, archived from the original on June 2, 2008 ; Retrieved May 28, 2008 . Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
- ↑ Equality and the fight against discrimination in an enlarged European Union. (No longer available online.) In: Areas of Activity of the European Union: EUROPA> Summaries of Legislation. European Communities, April 25, 2005, archived from the original on May 11, 2008 ; Retrieved May 28, 2008 . Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
- ^ Judgment of the Court of Justice (Grand Chamber) of July 17, 2008
- ↑ EU_Kommission: Non-Discrimination and Equal Opportunities: Renewed Engagement
- ↑ Proposal for a Council directive on the application of the principle of equal treatment regardless of religion or belief, disability, age or sexual orientation. July 2, 2008, accessed June 2, 2019 .
- ↑ Equal treatment not only on paper. European Commission, accessed January 18, 2009 .
- ↑ July 2008: EU Commission presents new draft directive. Homosexual Initiative Vienna, accessed on January 18, 2009 .
- ↑ Malte Göbel: Germany blocks EU directive: Veto against anti-discrimination. In: taz.de. July 3, 2015, accessed January 7, 2018 .
- ↑ Vanessa Vu : Migration: From Deportation to Anti-Discrimination. In: Zeit Online. September 18, 2017, accessed January 7, 2018 .
- ^ Matthias Ruffert : "Priority of the constitution and independence of private law" , Mohr Siebeck 2001, ISBN 316147628X , p. 121
- ↑ EÜG
- ↑ ArbPlSchG
- ↑ www.legifrance.gouv.fr: "Code pénal - Version consolidée au 7 mars 2008" : Articles 225-1 to 225-3 , viewed on April 7, 2008.
- ↑ Archive link ( Memento of the original from September 5, 2007 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. (en) It's about a recruitment test that discriminates against blacks.
