Article 3 of the Constitution ("Basic Law") establishes the fundamental principle of equality before the law and provides that no one may be disadvantaged or favored on the basis of sex, parentage, race, language, homeland or origin, faith or religious or political opinions. Article 12.1 (the basic right of freedom of occupation) states that German citizens have the right to choose freely their occupation, place of employment and place of training and the right to practice their occupation freely within the provisions of the current legislation.

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Article 3 of the Constitution ("Basic Law") establishes the fundamental principle of equality before the law and provides that no one may be disadvantaged or favored on the basis of sex, parentage, race, language, homeland or origin, faith or religious or political opinions. Article 12.1 (the basic right of freedom of occupation) states that German citizens have the right to choose freely their occupation, place of employment and place of training and the right to practice their occupation freely within the provisions of the current legislation. Citizens of EU Member States, however, are provided by Community law with protection for freedom of occupation equivalent to that of Germans.

Aliens coming from non EU-States can not invoke freedom of occupation as such, although they can invoke general freedom of action. In principle, all individuals who are not German within the meaning of the Basic Law need a work permit (Employment Promotion Act § 19). A work permit cannot be obtained for taking up employment in the context of the hiring-out of labor.

Aliens who have been lawfully engaged in continuous employment in Germany , and aliens married to a German citizen whose habitual place of residence is in the Federal Republic can obtain a special work permit irrespective of the general conditions. Children of foreign citizens who are lawfully resident in the Federal Republic are entitled to be granted a work permit if they have accompanied one or both parents to the Federal Republic before reaching the age of 18 and have there completed schooling or concluded a vocational training contract. Spouses and children of an alien who have lived in Germany for a specified period can also obtain a work permit. Permits are issued at the limited discretion of the Federal Employment Service, through the appropriate local Employment Office, and according to the needs of the labor market and the personal circumstances in each individual case. Work permits are for a particular job only, not employment in general. If an alien changes jobs, s/he will need to apply for a new work permit.

Although there is no special, comprehensive act dealing with racial or religious discrimination in Germany, there are laws, which cover certain, but not all forms of discrimination. The Federal Civil Services Code (Bundesbeamtengesetz), Section 8.1 and the Employment Constitution Act (Betriebsverfassungsgesetz) prohibit "differentiation" on the basis of, amongst other grounds, religion, nationality and origin. According to Section 75 of the Betriebsverfassungsgesetz employers and work councils are under the obligation to ensure that all employees are treated in conformity with the principles of law and fairness, and, in particular, that nobody is discriminated against because of his/her religion, nationality, origin, political or trade union activities or opinions or gender, sexual orientation. This Act only applies to private sector companies in which a works council has to be formed, i.e. which have at least 5 permanent employees. Section 75 of the Act is not applicable to discrimination in recruitment.

As regards the German trade unions, working for equal treatment and against racial discrimination of foreign workers has been an important field of trade union policy since the 1960s. Most trade unions have special departments for foreign workers an provide special services to them. Many foreign workers are active trade union members. In 1996, the IG Metall metalworkers' trade union disseminated a brochure containing a draft work agreement "for the fight against and the removal of discrimination of foreign workers and the improvement for equal opportunities at the workplace". The draft aimed to develop guidelines to help companies and the employee representatives to avoid racial discrimination and to secure equal opportunities for German and non-German workers regardless of their color, race, nationality, religion, ethnic or national origin. The draft proposed a broad range of measures and initiatives to be taken jointly by the social partners at company level. As a consequence of it, some companies have concluded important work agreements.

However, disproportionately high levels of unemployment amongst individuals of foreign origin exist who encounter particular difficulties in gaining access to the labor market. Indirect and direct discrimination frequently play a large part in explaining this phenomenon. For example, factors such as discriminatory job requirements and prejudices and stereotypes on the part of employers about individuals of a different ethnic background may negatively impact upon their opportunities for employment. Discriminatory practices are also reported with respect to rates of remuneration of migrant workers in certain sectors, particularly the construction industry. Such workers may be in a vulnerable situation when claiming their rights, despite the existence of minimum wages and a state supervision mechanism.

Analysis provided by: Antonella C. Attardo PhD (History of Law), Italy.

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