In 1969 the Federal Republic acceded the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). The German 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 3).

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In 1969 the Federal Republic acceded the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). The German 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 3). It provides for the banning of associations, which are directed against the constitutional order, or the concept of international understanding (Article 9.2). Political parties which seek to impair or abolish the free, democratic basic order, shall be declared unconstitutional by the Federal Constitutional Court (Article 21.2).

The German Criminal Code complements constitutional legislation prohibiting certain associations and parties by penalizing the continuation of their activities, and prohibits dissemination of propaganda and use of the symbols of unconstitutional organizations (Section 84, 85, 86). The Criminal Code contains very comprehensive provisions aimed at hate speech and the approval, denial or playing down of the genocide committed under the National Socialist regime (Section 130) and also penalizes the crime of genocide (Section 220a). The Federal Supreme Court considers racism an aggravating circumstance in the case of murder. The provisions of the criminal code, however, require extensive evidence and lay the burden of proof on the victim: it is extremely difficult trying to make the provisions work for alleged victims.

The civil code does not have any specific provisions for dealing with discrimination in key fields of public life, such as housing, education, health, employment and other public spheres where discrimination frequently occurs. The principle of non-discrimination is contained in some laws and regulations dealing with specific aspects of civil and administrative law, especially in local legislation of single Länder: Brandenburg, Hesse, Saxony and Thüringen, for example, have legislative provisions in place prohibiting racial and religious discrimination in schools. But neither at federal level nor at the level of the German Länder are there any specific laws dealing with racial or ethnic discrimination in access to education.

Children of migrants and immigrants are over-represented at lower secondary schools and special schools for under-achievers and correspondingly under-represented at intermediate and grammar schools. There is also a higher than average dropout rate amongst these groups of children. But certain schools at the level of the Länder and municipalities are carrying out interesting initiatives such as preparatory courses, mother tongue education and the teaching of German as a second language.

According to the statistics, there is disproportionately high levels of unemployment amongst individuals of foreign origin. 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, whereas Section 75 of the Betriebsverfassungsgesetz states that employers and work councils have 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 and is not applicable to discrimination in recruitment.

In German legal system there is no definition of harassment, apart from sexual harassment. Particularly, acts which have the effect but are not intended to create an intimidating, hostile, degrading, humiliating or offensive environment are not covered by any law. The Federal Government's Commissioner for Foreigners' Issues (Landesbeauftragte für Ausländerfragen) addresses issues relating to foreigners in Germany, and the majority of Länder and many municipalities have commissioners or foreigners' councils with varying tasks and competence.

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

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