Legal tips for diversity in the working world (Osborne Clarke)

There are a number of legal aspects that need to be taken into account when it comes to diversity at companies and institutions. This section is intended to provide an overview.

The EU’s four key directives on equal treatment are particularly important here. They have already been integrated into German law with the enactment of the General Act on Equal Treatment (AGG, also colloquially known as the Anti-Discrimination Act):

  • Race Equality Directive (2000/43/EC): implements equal treatment irrespective of racial or ethnic origin.
  • Employment Equality Framework Directive (2000/78/EC): establishes a general framework for equal treatment in the workplace.
  • Directive on Gender Equality in Access to Employment (2002/73/EC): implements the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. This directive has since been merged with other directives on gender equality and rewritten as Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (OJ No. L 204 p. 23).
  • Directive on Gender Equality in the Access to and Supply of Goods and Services (2004/113/EC): implements the principle of the equal treatment of men and women in areas other than employment.

The directives and the AGG have made their way into various aspects of the working world, from the phrasing of job ads to interactions in day-to-day work.

Job ads

Companies need to start taking diversity into account at an early stage, such as when they post a job ad. It is important to pay attention to the details of the ad, regardless of whether the vacancy is listed on social networks, on the company website or on job portals.

In order to avoid potential discrimination against applicants right from the start, the job ad should be phrased in a gender-neutral way. It should also be neutral as regards potential applicants’ physical condition. No direct mention should be made of applicant age and the ad should not include any restrictions regarding ethnic background, religion or ideology. It should be neutral regarding sexual orientation as well. Phrases such as ‘young professional’, ‘entry-level worker’, ‘age 25 to 35’, ‘good physical condition’ and the like are to be avoided. Recruitment and HR processes also need to be in line with the AGG. Otherwise, the most interesting candidates may not feel that the ad is aimed at them, and your company could miss out. In the worst-case scenario, you may even run the risk of facing claims for damages.

Interviews and rejections

Diversity also plays an important role in the interview process for potential hires. Comments like ‘We need to think about this; you’d be the oldest person on the team’ or inappropriate questions on discriminatory subjects are to be avoided, as they could discourage potential employees. Additionally, discrimination against applicants can result in claims for damages against the company of up to three months’ gross wages. And in this digital age, a story about discrimination during a job interview can spread like wildfire and quickly harm a company’s reputation.

Rejections should also be phrased in a neutral, objective manner, without long justifications for the rejection, which often tend to be judgemental and may be discriminatory.

During employment

We often forget that diversity is a vital factor during employment as well – the workplace has to be a discrimination-free zone. This can only happen if companies keep a careful eye out for any potential discrimination, direct or indirect.

To that end, companies should raise awareness of discrimination among their human resources departments and other employees. They should also offer specific training courses on the subject. These training courses may be offered as part of diversity management or compliance management, and employees can be granted time off to attend.

The employer’s duty of care toward its staff members also means that the employer is required to intervene in cases involving bullying and the like. Every employer needs to be aware that promoting or even tolerating discrimination or bullying is not permitted. Otherwise, the bullying victim may claim for damages against the employer. If the employer does not implement measures to prevent harassment in the workplace or if the measures implemented are clearly unsuitable, the affected employees are within their rights to stop working if doing so is necessary for their own protection. They are still entitled to full pay in this case, in accordance with Section 144 of the AGG.

It is also important for a company to appoint an internal ombudsperson in accordance with Section 13 of the AGG. Employees must be able to lodge a complaint with the ombudsperson if they feel that they are facing discrimination from their employer, supervisor, other employees or a third party in relation to their employment on the grounds of one of the causes listed in Section 1 of the AGG. The employer can decide how to establish the internal ombudsperson position within the company: it can be an individual person at the company or even the managing director. However, if the managing director is the ombudsperson, an alternative ombudsperson should also be appointed in case a complaint is made against the managing director. We recommend giving employees the option to report incidents of workplace sexual harassment to a person of the same gender, if possible. For this reason, employers should consider appointing both male and female ombudspersons. If multiple people from under-represented groups work at the company, we also recommend appointing an ombudsperson from a diverse background.

If your company has a works council, you should also bear in mind that assigning duties to an ombudsperson can constitute a transfer under the German Works Constitution Act (BetrVG). The works council must therefore be consulted in accordance with Section 99 of the BetrVG.

Other aspects such as occupational health and safety can have an indirect impact on diversity at the company. Pregnant women and parents will leave the company sooner or not even apply in the first place if the company does not ensure that statutory (occupational) health and safety regulations are observed. When in doubt, do not hesitate to seek advice from experts.