Solicitud directa (CEACR) - Adopción: 2024, Publicación: 113ª reunión CIT (2025)

Convenio sobre la discriminación (empleo y ocupación), 1958 (núm. 111) - Alemania (Ratificación : 1961)

The Committee notes the observations of the German Confederation of Trade Unions (DGB) received on 31 August 2023.

Article 1(1)(b) of the Convention. Additional grounds of discrimination. Disability. The Committee welcomes the adoption of: (1) the Relatives Relief Act (Angehörigen-Entlastungsgesetz), of 10 December 2019, which supports persons with disabilities in taking up regular in-company training or specialist practical training in the general labour market; (2) the Participation Strengthening Act (TeilhStG), of 2 June 2021, which created “single contact points” nationwide to advise companies on training, hiring and employment of people with severe disabilities; and (3) the Act to Promote an Inclusive Labour Market of 6 June 2023, which introduces a significantly higher compensatory levy for employers who do not meet their mandatory employment quota. It further notes the Government’s indication, in its report, that the results of the Study on a transparent, sustainable and future-oriented remuneration system for people with disabilities in sheltered workshops and their prospects on the general labour market, which was carried out from 2020 to 2023, are currently being discussed with the stakeholders involved and will form the basis for possible legislative action. The Committee notes, from the statistical information provided by the Government, that the number of persons with severe disabilities employed in the open labour market by employers under an obligation to do so, increased by 1 per cent, from 1,100,052 in 2020 to 1,111,272 in 2021. However, the proportion of employers required to employ persons with severe disabilities who failed to fulfil their obligation at all increased from 25.5 per cent in 2018 to 25.9 per cent in 2021, while the proportion of those who only partially fulfilled their obligation was estimated at 35.1 per cent in 2021. Welcoming the legislative steps taken to enhance the participation of persons with disabilities in vocational training and the labour market, the Committee asks the Government to provide information on: (i) any measures taken to effectively enforce the relevant legislative provisions, including by encouraging companies to comply with their mandatory employment quota of persons with severe disabilities and improving the access of such persons to the open labour market; (ii) any assessment made on the effectiveness and impact of such measures on the employment of persons with disabilities and any follow-up measures undertaken, including as a result of the study carried out from 2020 to 2023; and (iii) statistical data on the employment rate of persons with disabilities, disaggregated by sex and work environment (segregated work environment or open labour market).

Article 1(2). Inherent requirements of the job. Legislation and judicial interpretation. Referring to its previous comments regarding section 9 of the General Act on Equal Treatment (AGG) which provides that differences of treatment on the grounds of religion or belief of employees of a religious community shall not constitute discrimination where such ground constitutes “a justified occupational requirement for a particular religion or belief”, the Committee welcomes the Government’s indication that following two judgments from the European Court of Justice, church employers are no longer permitted to give preference to Christian applicants, and religious affiliation can be required only in cases where it is a “genuine occupational requirement” for the job in question. The Committee however notes that the Federal Anti-Discrimination Agency (ADS) received requests for advice from applicants whose applications for church employment had been rejected because they have no religious affiliation, wear a headscarf as a Muslim woman, or have left the church. In that regard, the Committee notes the Government’s statement that the AGG will be evaluated, and legal protection improved. It notes that, in September 2023, the ADS submitted several proposals for the reform of the Act, including to reformulate the occupational requirement exception on the ground of religion. The Government adds that there are plans to work together with the churches to determine the extent to which church labour law can be brought into line with state labour law. Recalling that exceptions relating to inherent requirements of a particular job under Article 1(2) of the Convention should be interpreted restrictively and on a case-by-case basis, the Committee asks the Government to provide information on: (i) the application of section 9 of the General Act on Equal Treatment in practice, including any court decision applying or interpreting this provision; as well as (ii) any amendment made to this provision.

Articles 2 and 3. Equality of opportunity and treatment for men and women. Vertical and horizontal occupational gender segregation. Referring to its previous comments, the Committee notes the Government’s indication that several initiatives have been continued, including in collaboration with the social partners, to raise awareness of gender-stereotypical career choices, such as the “Girls’ and Boys’ Days”, the “Cliché-Free” and the “YouCodeGirl” initiatives. The Government states, however, that the labour market continues to be characterized by vertical and horizontal occupational gender segregation. According to the results of the 2022 micro-census, men are still more likely to be in paid employment than women, with an employment rate estimated at 80.6 per cent in 2022, compared to 73.1 per cent for women. Furthermore, 5.5 per cent of men were employed in managerial positions in 2022 (compared to 2.5 per cent of women) and men were significantly over-represented in “craft and related trades workers” (19.1 per cent of men compared to 2.5 per cent of women) and “plant and machine operators and assemblers” (9.7 per cent compared with 2.1 per cent). On the other hand, 18.4 per cent of women were employed as “clerical support workers” (compared to 8.7 per cent of men) and 18.1 per cent as “service and sales workers” (compared to 9.5 per cent of men). In 2022, 19.7 per cent of men and 23.6 per cent of women had no vocational qualification. As regards women’s representation within the federal police, the Government indicates that despite a steadily increasing proportion of women, often just 20 to 30 per cent of applicants are women. In order to make the police service more attractive for women, the federal police has created family-friendly working conditions to promote the compatibility of family and career. The Committee further notes that, as of December 2022, 2,365 companies fall within the scope of application of the Act on the Equal Participation of Women and Men in Leadership Positions in the Private Sector and in the Public Sector (FüPoG I), 2015, out of which 102 are companies with a fixed quota of 30 per cent of women on their supervisory boards. In that regard, the Committee welcomes the adoption of the Act to Supplement and Amend the Regulations for the Equal Participation of Women in Leadership Positions in the Private Sector and the Public Sector (FüPoG II), of 11 August 2021, which supplements FüPoG I with numerous regulations, introduces a minimum requirement of at least one woman on boards of directors with more than three members in respect of listed companies and companies with parity-based worker representation on their boards, and provides that private sector companies will have to justify why they have set themselves the goal of not appointing women to their board. Companies that do not report a target or do not provide a justification for the zero target will be sanctioned more stringently. The Committee notes the Government’s indication that the proportion of women on the supervisory boards of private sector’s companies that are subject to a fixed quota increased from 34 per cent in 2019 to 36.7 per cent in 2022, while the proportion of women on supervisory boards without a fixed quota is significantly lower, at 29.3 per cent. The Government adds that, as regards the federal public service, in 2022, the proportion of women in management positions was around 43 per cent, while women represented 54.9 per cent of the civil service workforce. In that regard, the Committee notes the Government’s indication that the “Part-time leadership in the highest federal authorities” project was launched in March 2023 in order to bring more women into leadership positions, as only 10 per cent of senior civil service supervisors and managers work part-time, and 73 per cent of them are women. The Committee notes that, according to the results of the 2022 micro-census, half of all employed women still work part-time (49.2 per cent) compared to 12.7 per cent for men. The Committee notes that, in its observations, the DGB highlights that the figure of 49.2 per cent includes both part-time employment subject to social security contributions and marginal employment, the latter of which is a particularly precarious form of women’s part-time work. In the DGB’s view, while the Coalition Agreement of the Federal Government for 2021–25 sets the goal of “preventing mini-jobs from being misused as a substitute for regular employment or becoming a part-time trap, especially for women”, the Government has hitherto made no effort to reduce these types of employment. The DGB further considers that the dismantling of gender stereotypes in career options remains a key challenge and, overall, things are progressing, but too slowly, in both the private and public sectors. In that regard, the Committee further notes that, in its 2023 concluding observations, the United Nations (UN) Committee on the Elimination of Discrimination against Women (CEDAW) expressed concerns about: (1) women who remain under-represented in subject areas within science, technology, engineering and mathematics, non-traditional and non-academic fields of education and academia owing in part to the persistence of gender stereotypes; (2) the persistence of horizontal and vertical occupational segregation and the under-representation of women at decision-making levels in private companies; and (3) women’s concentration in temporary and part-time work owing to their traditional role as caregivers for children and older family members (CEDAW/C/DEU/CO/9, 31 May 2023, paragraphs 41 and 43). The Committee asks the Government to strengthen its efforts to address gender stereotypes and horizontal and vertical occupational gender segregation, both in the public and private sectors, including in cooperation with employers’ and workers’ organizations. It asks the Government to provide information on: (i) any legislative, policy or other measures implemented to enhance women’s representation in non-traditional fields of study and occupations and promote equality of treatment and opportunity between men and women; (ii) the results achieved by such measures, in particular in order to address vertical and horizontal occupational gender segregation, by enhancing women’s access to a wider range of jobs and to jobs at higher levels, including in sectors where women are less represented, such as the police force for example; and (iii) the participation of men and women in education, training, employment and occupation, disaggregated by occupational categories and positions, both in the public and private sectors.

Reconciliation of work and family responsibilities. In relation to its previous comment, the Committee notes with interest the adoption of: (1) the Federal Parental Allowance and Parental Leave Act, of 15 February 2021, which increases the previously applicable working limits for receiving parental allowance to 32 hours, thus making it possible for parents who want to work longer hours to receive support through the parental allowance, and introduces the “partnership bonus” which is granted for up to four additional months for parents who both work part-time and receive parental allowance; and (2) the Act for the Implementation of the European Union (EU) Directive 2019/1158 of 20 June 2019 on Work-Life Balance for Parents and Carers, of 23 December 2022, which provides that: (a) employers who do not comply with a parent's wish to reduce or distribute working hours during parental leave will be obliged to justify their decision; and (b) the ADS is to be responsible for issues relating to discrimination when workers who are parents and caregivers believe that they have been disadvantaged as a result of applying for or exercising their rights under the EU Directive. In that regard, the Committee notes that, in 2022, the ADS commissioned a study on the extent and forms of discrimination experienced by workers in caregiving roles in the context of pregnancy, parental leave and caring for relatives as well as a legal report on protection against discrimination for caregivers. The Committee notes the Government’s statement that it is committed to further increasing both the duration of benefits for fathers and their participation in parental leave and parental allowance. In that regard, the Committee notes that, in its observations, the DGB highlights that there is still a need for reform as major differences between men and women persist in practice. Evaluations of parental allowance statistics for 2022 have shown that, since its introduction, over 98 per cent of mothers entitled to parental allowance have claimed it consistently, most of them for more than ten months. In 2021, the percentage of fathers claiming parental allowance was estimated at 43.5 per cent; around three quarters of fathers, however, take no more than two months of parental leave. The DGB highlights that the proposal in the Coalition Agreement for 2021–25 to allow paid paternity leave (or paid second-parent leave) of ten days has not yet materialized, whereas it would lend positive impetus to the needed shift in corporate culture and contribute to raising employer awareness of the need for couples to share work and family responsibilities. As regards the persistent high proportion of women in part-time employment, the DGB further highlights that this proportion is heavily age-dependent: while only one third of employed women aged 15 to 35 are in part-time work, this figure is consistently over 50 per cent among women aged 35 to 65. The high proportion of employed women performing part-time work alongside family duties is the expression of a structural problem of the unequal division of paid work and unpaid care work between men and women, and the difficulty of reconciling family obligations with paid employment. In that regard, the Committee notes that the “Gender Equality in the Labour Market, Creating Perspectives” (GAPS) action programme, which was launched in 2022, sets specific objectives of enhancing the equal division of gainful employment and unpaid care work. The Committee asks the Government to provide information on: (i) the application of the Federal Parental Allowanceand Parental Leave Act and the Act for the Implementation of the EU Directive on Work-Life Balance in practice, including their impact on the reconciliation between work and family life, as well as the prevention and elimination of discrimination against mothers and female carers; (ii) the measures taken to enhance opportunities for workers with family responsibilities, in particular women, to work longer hours or engage in full-time employment, if they so wish, and the impact thereof; and (iii) the awareness-raising activities undertaken, including among workers, employers, and their respective organizations, to address stereotypical assumptions that the main responsibility for care work lies with women.

Depersonalized job application process. The Committee notes the Government’s indication that anonymized application procedures are used by the Federal Government and the ADS, as well as in some Länder and municipalities. The Government adds that the use of such procedures in the private sector is subject to employers’ decisions and no information is available on the results achieved by pilot projects implemented to that end. The Committee asks the Government to provide information on: (i) the number of anonymized application procedures implemented in the public administration, at the federal, Länder and municipality levels, as well as in the private sector, where possible; (ii) any assessment made of their impact, in particular in light of the persistent occupational gender segregation of the labour market and low employment rate of workers with a migration background; and (iii) any measures envisaged, including in collaboration with the social partners, to enhance the implementation of anonymized application procedures in the private sector.

Enforcement. Equality body. The Committee welcomes the adoption of the Act amending the General Act on Equal Treatment, of 23 May 2022, which strengthens the position of the ADS by creating the Office of the Independent Federal Anti-Discrimination Commissioner. Observing that the first Commissioner was appointed in July 2022, the Committee notes that the Commissioner: (1) must be involved in all planned activities which affect his or her tasks, and can make proposals to the Federal Government; (2) informs the Federal ministries as regards matters which are of fundamental political relevance; (3) may ask the parties to submit statements in those cases in which a person has turned to the ADS owing to a case of discrimination and the agency is seeking to reach a friendly settlement between the parties; and (4) shall be provided with all the required information and be supported in fulfilling his or her tasks by the Federal Government (section 28 of the Act). In its observations, the DGB highlights the lack of enforcement of the General Act on Equal Treatment and welcomes the Government’s intention to close existing protection gaps, increase legal protection, and expand the scope of application of the Act. The DGB considers that the reform of the Act, which was announced in the Coalition Agreement for 2021–25, is long overdue and must be swiftly tackled and implemented. In that regard, the Committee notes that, in September 2023, the ADS submitted several proposals for the reform of the Act, including to: (1) extend the deadline for making discrimination claims from two to twelve months; (2) ease the burden of proof for persons alleging discrimination; (3) establish effective, proportionate and dissuasive sanctions in cases of discrimination; and (4) grant the ADS the power to take legal action on behalf of the affected parties. The Committee asks the Government to provide information on: (i) any measures taken to amend the General Act on Equal Treatment, in particular with a view to ensuring its effective enforcement; (ii) the activities of the ADS and the Independent Federal Anti-Discrimination Commissioner in relation to employment and occupation, including any measures envisaged to expand its mandate to include the investigation and filing of complaints in court; and (iii) any cases of discrimination in employment and occupation dealt with by labour inspectors, the courts or any other competent authorities, as well as the sanctions imposed.