Vom Verbot zur Gleichberechtigung - Hirschfeld-Eddy-Stiftung

02 | Anti-Discrimination – Legal Right and Reality 39
subordinate role in relation to the type of contractual obligation (Paragraph 19, section
1, no. 1 AGG). Racist discrimination or unequal treatment due to ethnic background is,
however, generally prohibited, regardless of whether it is a case of bulk business or not.
After the introduction of the AGG, the European Commission listed 14 points that they
believed did not conform with the Directive. The regulations criticised included, for example,
the short deadline for lodging suits, the bulk business rule, and the so-called
church clause, which is stipulated in Paragraph 9 of the AGG. It foresees an exception
from protection against discrimination for religious communities, to the extent that
their own self-perception is affected. That means, for example, that church hospitals or
kindergartens are not required to employ members of other religious communities and
that enterprises supported by the Catholic church can terminate the employment of
people who remarry or of employees who have entered into a registered partnership. It is
still subject to controversy, whether the rule conforms with European law in areas beyond
the transmission of religious tenets. The impact of this exception becomes clear,
when one considers that both German churches are the largest employers in Germany
after the public service sector. In parts of Germany, church supported enterprises nearly
have a monopoly in social services, for example. In the meantime, the infringement proceedings
initiated by the European Commission were abandoned in the autumn of 2010.
The European stipulations of three Equal Treatment Directives foresee the establishment
of so-called National Equality Bodies. Their essential tasks include providing support in
cases of discrimination, publishing reports and recommendations, as well as promoting
research on the topic. The way they are organised in each of the Member States differs
greatly in terms of personnel, budget, and competencies. The Anti-Discrimination Agency
(Antidiskriminierungsstelle des Bundes or ADS) is relatively small, with approx. 20
employees, the English Equality and Human Rights Commission employs several hundred
persons. The competencies accorded to the Agency are also relatively narrow in
European comparison. Hence, the ADS cannot initiate proceedings on its own or provide
legal support for those affected.
According to the European stipulations, the ADS operates independently. The director of
the agency is named at the beginning of every legislative period by the federal cabinet. It
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1 Cf. reasoning for the law BT-Drucksache 16/1780. P. 20. This is the Directive 2000/43/EU (Anti-Racism Directive),
the Directive 2000/78/EU (Framework Directive), the Directive 2002/73/EU (Gender Directive Labour Law) and the
Directive 2004/113/EU (Gender Directive Civil Law).