(June 30, 2020) On June 21, 2020, a new antidiscrimination act entered into force in the city-state of Berlin, Germany. The act, entitled the State Antidiscrimination Act, prohibits Berlin public authorities, including police and public schools and universities, from engaging in discrimination on the grounds of gender, ethnic origin, racial association, religion or belief, disability, chronic illness, age, language, sexual or gender identity, or social status. Furthermore, it includes measures to promote an appreciation for diversity. The act complements the German Federal General Act on Equal Treatment, which applies to all areas of employment and mass market transactions in the private sector.
Content of the Law
Types of Discrimination
The act prohibits five different types of discrimination: direct discrimination, indirect discrimination, general harassment, sexual harassment, and an order to discriminate against another person, meaning an order to engage in behavior that would result in discrimination prohibited under the act. (§ 4.) Measures that are objectively justified or intend to compensate for disadvantages of structurally disadvantaged people are not covered by the prohibition. (§ 5.) In addition, the Antidiscrimination Act prohibits retaliatory measures against persons who exercise their rights under the act or persons who refuse to carry out an order that would perpetrate illegal discrimination against someone. (§ 6.)
Burden of Proof and Legal Recourse
The act provides that once a person has established facts from which it may be presumed that discrimination has taken place, it is up to the public authority to prove the contrary. (§ 7.) The public authority who supervises the person who has committed the discriminating act must pay damages to the person who has been discriminated against. In cases of nonpecuniary damages, the discriminated person may demand adequate financial compensation. (§ 8.) Legal recourse may be sought in civil court. (§ 8, para. 5.) The statute of limitations runs for one year from the end of the year in which the claim arose and the claimant knew or should have known, without gross negligence, of the circumstances giving rise to the claim and of the person who committed the discrimination. (§ 8, para. 4.)
Right of Associations to Initiate Proceedings
Certified antidiscrimination associations may demand a declaratory judgment that certain administrative acts, general orders, or other administrative actions generally discriminate without having to prove an infringement of their individual rights. Associations must complain to the public authority before initiating court proceedings. (§ 9.) In addition, such associations may sue on behalf of individuals who have been discriminated against if the individual agrees. (§ 10.)
An independent ombudsman is created within the antidiscrimination unit of the Senate Administration of the City of Berlin. The ombudsman is to work together with the appropriate public authorities and support discriminated individuals with information and advice. Furthermore, he or she should encourage amicable settlement of disputes. The ombudsman may consult with experts, request reports, refer complaints, and make recommendations. Berlin public authorities must work together with the ombudsman, in particular by providing the requested information or statements, and generally allow access to files. All information provided to the ombudsman must be kept confidential. (§ 15.)
Promotion of Diversity
All public authorities in Berlin are required to consider the prevention of discrimination and the promotion of diversity as guiding principles for their work. Training on diversity competency, including its antidiscriminatory origins, must be offered and completed by all public employees. (§ 12.) In addition, Berlin’s executive body, the Senate of Berlin, must pass statewide measures to promote diversity in the administration and report on their implementation to the Berlin Parliament at least every five years. (§ 13.)
The act has been severely criticized and dubbed an “Anti-police Act.” Opponents contend that it will negatively impact the ability of the police to do their work. In particular, police officers fear that they will be subjected to unjustified discrimination accusations when investigating drug crimes and gang violence. This fear stems from the fact that claimants must only establish facts from which it may be presumed that discrimination has taken place, after which it is up to the public authority to prove the contrary. Critics see this as a reversal of the burden of proof. Several German states, as well as the federal minister of the interior, fear disadvantages for their police officers, in particular additional administrative burdens, and have therefore announced that they will no longer send police to Berlin to support the local police force. In response, Berlin has emphasized that the new Antidiscrimination Act applies only to Berlin public authorities and will not be applied to out-of-state police.
Proponents, on the other hand, have stated that the law’s passage is an important acknowledgment that institutional racism and discrimination exist.