Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Germany (Ratification: 1961)

Other comments on C111

Observation

Direct Request

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The Committee notes the observations of the German Trade Union Confederation (DGB) of 5 December 2016.

Article 1(1)(b) of the Convention. Additional grounds of discrimination. Legislation. Disability. The Committee takes note of the adoption of the Act on the Improvement of Inclusion and Self-Determination of Persons with Disabilities on 1 December 2016, which aims at preventing discrimination on the grounds of disability and incapacity for employment. It refers to its 2016 direct request made under the application of the Vocational Rehabilitation and Employment (Disabled Persons) Convention, 1983 (No. 159), where it noted that the unemployment rate for persons with severe disabilities was 13.4 per cent in 2015 (against 8.2 per cent for the rest of the population) and that from 2007 to 2015 the gap between the unemployment rates of persons with severe disabilities and the remainder of the population has widened by a 0.9 percentage point. The Committee notes that several United Nations (UN) treaty bodies recently expressed concern about segregation in the labour market and financial disincentives for persons with disabilities preventing their entry or transition to the open labour market (E/C.12/DEU/CO/6, 12 October 2018, paragraph 34; CEDAW/C/DEU/CO/7-8, 9 March 2017, paragraph 35; and CRPD/C/DEU/CO/1, 13 May 2015, paragraph 49). Noting that the aim of the Act of 1 December 2016 on the Improvement of Inclusion and Self-Determination of Persons with Disabilities, is to ensure better participation of persons with disabilities in society, the Committee requests the Government to provide information on any measures taken to promote vocational training and employment of persons with disabilities and improve their access to the open labour market, including in the framework of the Act, and on the results achieved. It also requests the Government to provide updated information on the employment rate of persons with disabilities, disaggregated by sex and work environment (segregated work environment or open labour market).

Articles 1 and 2. Legislation. Inherent job requirements. The Committee notes that, according to the last European Commission country report on non-discrimination (2017, page 8), some recent case law has underlined the wide discretion that religious communities enjoy as to the duties of loyalty that can justify unequal treatment. It further notes that, in its 2018 concluding observations, the UN Committee on Economic, Social and Cultural Rights (CESCR) expressed concern at the related reports of discrimination based on religious belief, or sexual orientation and gender identity in employment of non-ecclesiastic positions in church-run institutions, such as schools and hospitals, and requested the Government to review section 9 of the General Equal Treatment Act to ensure that no discrimination is permitted against non-ecclesiastical employees on grounds of religious belief, or sexual orientation or gender identity (E/C.12/DEU/CO/6, 12 October 2018, paragraphs 22 and 23). The Committee understands, however, that as a consequence of recent rulings of the Court of Justice of the European Union (Cases C-68/17 and C-414/16) as well as the Federal Labour Court (8 AZR 501/14), section 9 of the General Equal Treatment Act cannot be applied any longer as far as it refers to the right of self-determination of religious communities and that section 9 must be interpreted restrictively as far as it refers to the nature of the activity concerned. The Committee requests the Government to provide information on any court decision applying section 9 of the General Equal Treatment Act, in light of this new case law.

Articles 2 and 3. Equality of opportunity and treatment of men and women. Reconciliation of work and family responsibilities. The Committee previously noted the adoption of the Care Time Act, 2008; the Family Care Time Act, 2011; and the Family Care Time and Flexible Retirement for Civil Servants of the Federal Government Act, 2013, which provide workers caring for close family members an opportunity to work reduced hours. It welcomes the Government’s indication that amendments were introduced to the Care Time Act and Family Care Time Act in 2015 to establish a legal entitlement to family care time as well as a carer’s allowance for up to ten days if employees are temporarily unable to work. The Government also indicates that a “Family Allowance Plus” was introduced to complement the basic family allowance and is available to parents who would like to work part-time during the period they receive the family allowance. The Government further indicates that more flexible regulations governing parental leave have also been introduced in order to counteract the preconception that family responsibilities are primarily a matter for women, such as the Parental Benefit and Parental Leave Act of November 2014, forwarded by the Government. The Committee notes that the DGB however indicates that the effectiveness of these measures is restricted by the fact that the right to reduced working time is limited to employers with an average number of at least 15 employees, while a considerable number of women are employed in small businesses. It notes the Government’s indication that there has been an increase in the employment rate of women aged between 15 to 64 years, up to 71.5 per cent in 2017, but that the DGB specifies that there has been in reality a decrease in the full-time employment rate of women and an increase in their part-time employment rate. Furthermore, the DGB adds that care obligations and subsequent breaks in employment are still primararily borne by women who often take on care activities at the expense of their financial independence and their own provisions of retirement. In this regard, the Committee notes that, in its concluding observations, the UN Committee on the Elimination of Discrimination against Women (CEDAW) remained concerned that prevailing stereotypes about the roles and responsibilities of women and men in the family and in society continue to impede progress in advancing gender equality and recommended that the Government strengthen awareness-raising campaigns to address the prevailing negative stereotypes limiting mothers’ integration in the labour market (CEDAW/C/DEU/CO/7-8, paragraphs 21 and 36). The Committee requests the Government to continue to provide information on the measures taken to improve the reconciliation of work and family life for workers both in the public and private sectors, as well as to increase the number of workers with family responsibilities in the labour market, in particular working mothers, and on the impact thereof. It also requests the Government to provide information on awareness-raising activities undertaken to address stereotyped assumptions that the main responsibility for family care lies with women, and on their outcomes.

Depersonalized job application process. Referring to its previous comments, the Committee notes the Government’s indication that subsequent pilot projects on depersonalized job applications were introduced, with the support of the Federal Anti-Discrimination Agency (FADA), in private enterprises and public administration in various Länder, as well as within associations and foundations. The Committee notes the Government’s statement that compared to the traditional process, women and applicants with a migration background have a better chance of being invited to an interview. The Committee requests the Government to continue to provide information on the development of the depersonalized job application project, including the results of relevant studies and reports on its impact, as well as statistical information, disaggregated by sex and national extraction, on the applicants selected through these processes.

Enforcement. The Committee notes the Government’s indication that about 28 per cent of the queries for advice received by the FADA between 2006 and 2016 concerning discrimination, were related to a disability; 24 per cent to ethnic background; and 23 per cent to gender. It further notes that ten anti-discrimination advice centres were established in regions, with the support of the FADA, in order to improve available advice closer to those affected. It notes however that, in its concluding observations, the CEDAW remained concerned about the limited mandate of the FADA, which, notwithstanding its increased resources, continues to lack sufficient authority to file or support court cases, launch investigations or impose sanctions in response to discrimination claims (CEDAW/C/DEU/CO/7-8, paragraph 17). The Committee further notes, that according to the European Foundation of the Improvement of Living and Working Conditions (EUROFOUND), there is some indication that cases of discrimination are significantly under-reported. The Committee requests the Government to continue to provide information on the activities of the Federal Anti-Discrimination Agency, as well as on any measures taken or envisaged to consider expanding its mandate to include the investigation and filing of complaints in court and their outcomes. It requests the Government to provide information on any judicial or administrative decisions concerning the application of the principles of the Convention, as well as information on any violations detected by the labour inspectorate, the sanctions imposed and the remedies granted.