Analysis provided by Dominika Skubida, ODIHR Legal Expert

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The German law is undergoing significant changes with regard to the gender equity based employment policy. The introduced improvements concern mainly the anti-discrimination provisions, as well as reconciliation of family and work, and protection of maternity. In a result of the judgment of the European Court of Justice as of April 1997 the German labour law has been developed towards elimination of discrimination against women. The court stated that the German provisions concerning the right to employment, particularly initiating employment, were contradicting to the European Equal Treatment Directive. As a consequence of the above the Civil Code and Labour Law were amended. The Second Equality Act of 1998 obliges the employer to provide compensation if he has discriminated against gender in initiating the employment. The employer is also made responsible for the misconduct of his subordinates during this process.

The Civil Code in its Section 611 establishes the right to money compensation if the recruitment procedure was conducted against gender equality rules. This section provides also for a reversal burden of proof in favor of the discriminated applicant.

Within the companies the sphere of equal rights for men and women is addressed by the Act to Reform the Works Constitution Act of 2001. This act provides for equal opportunities by introducing the obligation on work assemblies and departmental meetings to provide regular reports on the state of gender equality in the work. Genders must be equally represented at the General Works Council and works councils of affiliated companies.

As regards employment within the structures of public service the situation was changed with the adoption of the Federal Act on the Equal Opportunities between Men and Women in 2001. This act replaced the old Federal Act on the Promotion of Women of 1994 and set up the possibility to give a preference to a women candidate with the same qualification and professional experience in the areas where women are underrepresented.

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