The description of the understanding of discrimination has already made clear how complex the definition of discrimination alone is. This makes it all the more difficult in everyday life for those affected to assess whether discrimination has taken place or not, just as it is in the professional activities of counsellors, for example. Thus, those affected often have the uncomfortable feeling that they have been treated unfairly but do not have enough evidence to take official action against discrimination.
Similarly, actors who are told about experiences of discrimination feel that they cannot make any assessment and the issue is not dealt with further.
In the following, you can read about the legal basis on the one hand, and on the other hand, the three-step method is presented, which can possibly be helpful in assessing discriminatory situations.
Although the following legal principles are listed as potential aids to the recognition of discrimination, they alone cannot be sufficient for a comprehensive assessment of the situation. The perspective of those affected should always be at the centre when it comes to recognising and naming discrimination and, if necessary, taking further steps.
Article 3 Basic Law
§§1-3 General Act on Equal Treatment
(1) All persons shall be equal before the law.
(2) Men and women shall have equal rights. The state shall promote the actual implementation of equal rights for women and men and take steps to eliminate disadvantages that now exist.
(3) No person shall be favoured or disfavoured because of sex, parentage, race, language, homeland and origin, faith, or religious or political opinions. No person shall be disfavoured because of disability.
Identifying discrimination as a three-step
§ 1 Purpose of the act
The purpose of this Act is to prevent or to stop discrimination on the grounds of race or ethnic origin, gender, religion or belief, disability, age or sexual orientation.
§ 2 Scope
(1) For the purposes of this Act, any discrimination within the meaning of Section 1 shall be inadmissible in relation to:
1. conditions for access to dependent employment and self-employment, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of professional hierarchy, including promotion,
2. employment conditions and working conditions, including pay and reasons for dismissal, in particular in contracts between individuals, collective bargaining agreements and measures to implement and terminate an employment relationship, as well as for promotion,
3. access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience,,
4. membership of and involvement in an organisation of workers or employers or any organisation whose members carry on a particular profession, including all benefits provided for by such organisations
5. social protection, including social security and health care,
6. social advantages,,
8. access to and supply of goods and services which are available to the public, including housing.
§ 3 Definitions
(1) Direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation on any of the grounds referred to under Section 1. Direct discrimination on grounds of sex shall also be taken to occur in relation to Section 2(1) Nos 1 to 4 in the event of the less favourable treatment of a woman on account of pregnancy or maternity.
(2) Indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons at a particular disadvantage compared with other persons on any of the grounds referred to under Section 1, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary..
(3) Harassment shall be deemed to be discrimination when an unwanted conduct in connection with any of the grounds referred to under Section 1 takes place with the purpose or effect of violating the dignity of the person concerned and of creating an intimidating, hostile, degrading, humiliating or offensive environment..
(4) Sexual harassment shall be deemed to be discrimination in relation to Section 2(1) Nos 1 to 4, when an unwanted conduct of a sexual nature, including unwanted sexual acts and requests to carry out sexual acts, physical contact of a sexual nature, comments of a sexual nature, as well as the unwanted showing or public exhibition of pornographic images, takes place with the purpose or effect of violating the dignity of the person concerned, in particular where it creates an intimidating, hostile, degrading, humiliating or offensive environment.
(5) An instruction to discriminate against a person on any of the grounds referred to under Section 1 shall be deemed as discrimination. Such an instruction shall in particular be taken to occur in relation to Section 2(1) Nos 1 to 4 where a person instructs an employee to conduct which discriminates or can discriminate against another employee on one of the grounds referred to under Section 1.
In the guideline “Diskriminierungsschutz an Hochschulen“ issued by the Federal Anti-Discrimination Agency states: “Discrimination is the disadvantage of people (1) on the basis of a characteristic worthy of protection (2) without factual justification” (p. 9). To identify discrimination the following questions arise:
1. Is there a disadvantage?
2. Did this disadvantage occur because of a characteristic worthy of protection?
This follows the logic that every discrimination is a disadvantage, but not every disadvantage is a discrimination.
An example illustrates this: A dog owner is not allowed to take his dog to a café. This may be perceived as disadvantageous, but it does not affect any protected characteristic and therefore does not constitute discrimination.
3. Is there a factual justification for the unequal treatment?
The so-called factual justifications that allow unequal treatment include, for example, compensation for disadvantages, support programmes for women or age restrictions for the protection of minors.
This three-step can help both affected persons and, for example, counsellors to gain an initial assessment of a situation and to decide whether discrimination is involved. In reality, the situations are usually much more complex, since discrimination is often not directly recognisable as such and is therefore difficult to grasp or even prove.