How can an employer defend themselves against discrimination
Can an employer request German without an accent?
Knowledge of German and discrimination
The question of the extent to which employers are allowed to require employees to speak German has recently been the subject of several labor court decisions. The employees concerned, non-German native speakers, defended themselves with the argument that the employer's request for knowledge of German constituted discrimination on the basis of their origin. (We reported in Arbeitsrecht aktuell 10/030: "Termination because of bad German").
Since the General Equal Treatment Act (AGG) came into force on 08/14/2006, employees according to Section 1 in conjunction with Section 7 AGG is expressly protected against, among other things, discrimination on the basis of ethnic origin in relation to the entire employment relationship, including the application process (Section 2 AGG). If they suffer discrimination, they are entitled to a claim for compensation against the employee (Section 15 (2) AGG).
According to case law, the requirement of German language skills can constitute discrimination on the basis of ethnic origin, because employees of non-German origin have more problems with the German language than employees of German origin. However, this is not a direct (“immediate”) disadvantage but at most an indirect disadvantage within the meaning of Section 3 (2) AGG, which is permissible if there is an “objective justification” for this.
From the court decisions it can be seen that basic German language skills, which enable communication with customers, employers and colleagues, may generally be required. Because, in the opinion of the courts, this corresponds to the requirements for (almost) all activities and is therefore objectively justified.
A factual justification cannot be accepted without further ado if additional knowledge of the German language is required. It can be assumed here that the assessment of whether there is a justification for the disadvantage depends very precisely on the activity to be performed and the extent of the language skills required by the employer.
The present decision of the Labor Court (ArbG) Hamburg (judgment of January 26, 2010, 25 Ca 282/09) deals with the question of the extent to which an employer may require applicants to have a basic knowledge of the German language.
The case of the Hamburg Labor Court: Applicants for work as a mail deliverer are rejected due to unclear pronunciation
The plaintiff, born in Ivory Coast and a French native speaker, applied several times to the defendant employer, a postal company, as a mail carrier. The plaintiff had successfully completed training in German.
The employer demanded that the postal deliverers “have a command of the German language, both written and spoken”. The first contact with applicants takes place with the employer through a short telephone call. The employer also contacted the plaintiff by telephone and asked him whether he could ride a bicycle, which the plaintiff replied in the affirmative. The employer got the impression that the plaintiff's pronunciation was unclear.
The employer therefore refused to hire the plaintiff. According to the employer, the plaintiff cannot express himself clearly and distinctly in German. However, the mail deliverers would have to be able to communicate with customers and complete training and further education.
The plaintiff sees his rejection as discrimination on the basis of ethnic origin and therefore demands compensation before the Hamburg labor court, the amount of which he leaves at the discretion of the court.
The employer considers the requirement for a clear discussion to be factually justified. In addition, according to the employer, several French-speaking native speakers had been hired and the plaintiff's refusal was not related to his origin.
Hamburg Labor Court: Demand for clear discussion is discrimination
The Hamburg Labor Court agreed with the plaintiff and awarded him three gross monthly salaries.
In the opinion of the court, the demand for a “largely accent-free” German language constitutes indirect discrimination on the basis of ethnic origin.
According to the labor court, it is objectively justified that the employer requires postal deliverers to have a command of the German language, both spoken and written. In the opinion of the court, however, additional requirements are not necessary for the activity as a mail deliverer and therefore not objectively justified. Because apparently, according to the court, there were no communication problems during the phone call. The employer therefore sets requirements that go beyond the requirement of a (problem-free) understanding, which the court considers excessive. Because it is not necessary, according to the court, for a postman to speak German largely without an accent.
The court also makes it clear that it does not consider short telephone calls to be suitable for checking applicants' knowledge of German. With a quick question, as in the present case, the employer cannot get an idea of how well or how badly an applicant actually speaks German.
Conclusion: The decision of the Hamburg Labor Court is in line with previous case law. The labor court rightly considers the demand for a basic knowledge of the German language to be factually justified, but a largely accent-free German for a postman is excessive.
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Last revision: July 5th, 2014
For further information please contact:
Dr. Martin Hensche
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