Since the middle of August 20006 an anti-discrimination law (Antidiskriminierungsgesetz or ADG) has applied in Germany. After a delay of many years, and only after threats of contractual penalties, the legislator converted the appropriate European Commission anti-discrimination guidelines at least partially into a national right.

One must not be misled by this positive aspect, as the discrimination protection will be cancelled in many areas by providing overly broad exceptions. The enforcement of the rights of those concerned is further adversely affected by the reversal of the burden/onus of proof (Beweislastumkehr), the planned structure of the anti-discrimination position of the state, and making the possibility of non-governmental organizations (NGOs) participating in legal proceedings substantially more difficult. For example the Anti-Diskriminierungsbüro Berlin (ADB), despite its many years of experience, may not give legal advice before a court, since this right is limited to NGOs with at least 75 members.

The greatest shortcoming in the AGG is that it is not applicable to many of the cases of discrimination that are brought to us in our consultations. A comprehensive fight against discrimination should not be limited to the area of employment and civil law, but must also be directed against discrimination from the state. If the struggle against discrimination is to not only be a lip-service, discriminatory laws such as the residence obligation (Residenzpflicht)² and the ban on employment for asylum seekers and refugees granted ‘exceptional leave to remain’ (Duldung)³ must be abolished.

The General Act on Equal Treatment is thus a step in the right direction-admittedly only a small one. Much remains to be done to protect all people from discrimination effectively.

Notes

¹ In the justification of the bill one must deal with the problem of the concept of ‘race’. The use of this concept does not mean the acceptance of the ideas which proceed from belief in the existance of different human races. It is soley used to have a linguistic link to the term ‘racism’.

² The residence obligation forbids asylmseekers to leave their designated district (Landkreis). Each time they wish to leave their district a special permit is required, which is frequently refused. With each violation comes a penalty of one year in detention, and also threatens disadvantages in asylum proceedings.
The residence obligation in Germany is unique across the EU. Similar laws existed in National Socialist Germany, and during apartheid in South Africa.

³ ‘Exceptional leave to remain’ (Duldung), is termed in the German Right of Residence (Aufenthaltsrecht) the ‘temporary suspension of deportation’. Refugees receive the residence title of ‘exceptional leave to remain’, if the state would like to deport them, but at present cannot. ‘Exceptional leave to remain’ usually applies only for a brief period, and must be extended afterwards. At any time there is a danger of immediate deportion. Approximately 200,000 people live under these conditions in Germany-nearly half of them for more than 10 years.