Germany will have a new ADA in the first half of the year 2005. Initiated by several EU directives, the German Government has recently presented the draft for a new ADA for discussion in the House of German Parliament (Deutscher Bundestag).
1. The new ADA forbids any unlawful discrimination based on race, ethnical origin, sex or sexual identity, religion or view of life, disability or age.
It does not only apply to employment relationships, but also to day-to-day business (shops, insurers, hotels, restaurants, tenancy etc).
In practice, the new ADA will have its greatest effect in the employment sector. The new ADA refers to all aspects of employment (recruitment, layoff, relocation, promotion, remuneration, bonuses etc).
The employer will also be obliged to protect his employees against any discrimination by other employees and even by his customers or suppliers.
In case of an unlawful discrimination the employee can claim for damages against his employer. The amount of compensation is not limited in the ADA, but must be reasonable.
In a court proceeding the employee has only to present credible discriminatory circumstances. In return, the employer has to prove that no unlawful discrimination took place (shifting of burden of proof).
External anti-discrimination organizations have the right to support and represent the employee allegedly discriminated in the course of court proceedings.
2. The new ADA will lead to additional costs and more legal risks for the companies operating in Germany, in particular for medium-sized businesses (so-called “Mittelstand”), less experienced in anti-discrimination procedures than multinational enterprises.
Companies should elaborate and introduce Codes of Conduct already well known in the US, to safeguard the compliance of its employees with the new anti-discrimination law.>
Companies will have to provide additional qualified personnel to deal internally with a growing number of complaints against alleged discrimination. A significant raise of court proceedings is expected because of the new rules on compensation. Therefore, additional legal advice is needed. Some companies may find their case being reported in the newspapers.
In order to protect themselves the companies will have to document carefully all steps of their decisions relating to the hiring and firing of personnel, to promotions, remunerations etc.