LGBT in the workplace – diversity and discrimination
Diversity in the workplace is a widespread and highly important topic for many companies in Germany. Society has become more open in recent years when it comes to equality and the acceptance of LGBT people. As a result, LGBT people can be more outspoken about their sexual orientation, also in the workplace. A diversified workforce can not only lead to diversity in thinking, more creativity, and greater productivity, but also a positive image of the company in the public’s eye and as an employer. This is why many companies are already taking targeted measures to accommodate greater diversity. In doing so, however, the legal limits that result in particular from anti-discrimination laws need to be observed.
The General Equal Treatment Act (AGG) protects against discrimination in all phases of employment, including selection procedures, recruitment conditions, employment and working conditions, the conduct of the employment relationship and promotion.
The aim of the law is to "prevent or eliminate discrimination on the basis of race or ethnic origin, gender, religion or belief, disability, age or sexual identity". This means that discrimination based on any of the aforementioned characteristics is fundamentally prohibited. Therefore, questions in job interviews about or in connection with the characteristics protected by § 1 AGG are generally inadmissible. By preventing discrimination on the basis of sexual identity, discrimination related to homosexuality is prohibited, as are transsexual and intersexual discrimination. If the employer nevertheless inquiries about such characteristics during the hiring process, the candidate is entitled to lie to the employer. If the candidate is subsequently employed and it is revealed that he lied in response to a question on these issues, the employer cannot bring any claim against the employee. If the candidate gives a false answer to a permitted question, the employer may challenge the validity of the employment contract for fraudulent misrepresentation. Moreover, questions related to sexual orientation can indicate discrimination and be the basis of an anti-discrimination claim. Irrespective of the inadmissibility of questions under the AGG, questions about certain personal matters are not permitted under the General Data Protection Regulation (GDPR) anyway, such as questions about marital status, children, political views, ideology and certainly not sexual orientation.
Accordingly, a company generally cannot refuse to employ an applicant merely because of his or her sexual orientation. The AGG tolerates unequal treatment under various conditions: discrimination on the basis of the aforementioned issues, including sexual orientation is justified, if a substantial and vital work-related requirement can be demonstrated. However, in practically no conceivable case will sexual orientation be an "essential and decisive occupational requirement" for the position advertised.
On the other hand, preferential measures towards LGBT applicants and employees may in turn cause problems with other groups feeling disadvantaged. Thus, so-called affirmative action measures have to comply with anti-discrimination laws (§ 5 AGG) as well. As companies have long recognised the advantages of a diversified workforce, such as a positive corporate image, the employer will thus have to find a balanced solution for all applicants and employees. Permissible affirmative action measures have to be objectively appropriate and proportionate to the promotion and must not unduly interfere with the interests of the persons excluded from the benefit. For instance, inflexible priority rules, whereby members of an under-represented group are automatically given priority or promoted if they have the same or even lower qualifications, are not permitted. However, companies could introduce priority rules that take into account the individual case and only consider employees with the same level of qualification. Besides, workforce diversity targets are considered reasonable.
In addition to specific rules on recruitment and promotion and clear targets, employers could offer, in particular, individual support, such as special representatives, diversity programs or respective networks for LGBT employees. Also, in diversity-oriented works council agreements, the employer could contribute to the clarification of discrimination and commit to actively counteracting discrimination without running the risk of discriminating against other groups. Not only can this help employers establish a diversified image in the international context, but it could also create incentives for LGBT people to choose to work for their company.
After all this, it is obvious that the rejection of an application and the dismissal solely on the grounds of sexual orientation are considered invalid. However, the general protection against unfair dismissal under the German Protection Against Dismissal Act (KSchG), where applicable, shall prevail and protects the employee comprehensively. Only where the Dismissal Protection Act is not applicable, such as in the case that the company employs fewer than 10 employees or the employee has been employed in the company for less than 6 months, will the court examine discrimination under the AGG. Disputes relating to the financial betterment of married couples in comparison to homosexual couples have also been settled in favour of homosexual couples. As a result, discrimination on the grounds of sexual identity is still present, but it is also severely restricted. By taking advantage of a diversified workforce, employers should also ensure that they strike a balance so that other (under-represented) groups are not disadvantaged in the debate on discrimination against LGBT people.
Verena Holzbauer, Attorney-at-law (Germany) at BEITEN BURKHARDT Rechtsanwaltsgesellschaft mbH, member of the Labour & Employment Law practice Group