Demande directe (CEACR) - adoptée 2020, publiée 109ème session CIT (2021)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Allemagne (Ratification: 1961)

Autre commentaire sur C111

Observation

Demande directe

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The Committee takes note of the Government’s report and the supplementary information provided in light of the decision adopted by the Governing Body at its 338th Session (June 2020).

The Committee also notes the observations of the German Confederation of Trade Unions (DGB) received on 21 November 2019. It further notes the additional observations of the DGB received on 10 November 2020. The Committee requests the Government to provide its comments with respect to the additional observations.

Article 1(1)(b) of the Convention. Additional grounds of discrimination. Disability The Committee recalls that it previously noted the adoption, in 2016, of the Act to strengthen the Participation and Self-Determination of Persons with Disabilities (Federal Act on Participation) and highlighted the substantial unemployment rate for persons with disabilities compared to the rest of the population. The Committee welcomes the Government’s indication, in its report, that several initiatives were implemented to raise awareness of employers about the potential of persons with disabilities. In this regard, the Government states in its supplementary information that, as a result of the Enterprise Network Inclusion Project, about 42,000 companies which do not employ a single person with severe disabilities, despite their obligation to do so, have been targeted as part of the joint initiative called “Recruitment counts – Employers Win” since April 2019. 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 5.9 per cent between 2014 and 2017. However, 25.6 per cent of employers still do not employ a single person with severe disabilities, in spite of their obligation to do so. The Committee further notes the Government’s statement that the Federal Employment Agency and other rehabilitation providers, along with job centres and State integration offices, offer a wide spectrum of tailored support, vocational training and integration programmes. In that regard, it notes that the unemployment rate of persons with severe disabilities was estimated at 11.2 per cent in 2018 (compared to 6.5 per cent for the rest of the population). The Committee further notes the Government’s statement that, according to initial surveys carried out in the Länder, since 1st January 2018, about 1,800 employees have switched from segregated workshops for persons with disabilities to the open labour market, in particular as a result of the “Budget for Work” measure, a permanent wage subsidy. The number of persons with disabilities employed in segregated workshops also increased from 278,591 in 2014 to 289,842 in 2017. The Government states that of those eligible for employment in the workshops for persons with disabilities, 41 per cent are women and 59 per cent are men, a proportion which has remained unchanged since 2007. Welcoming the various steps taken to increase the participation of persons with disabilities in the labour market, the Committee asks the Government to continue to provide information on : (i) any measures, including gender responsive measures, taken to promote vocational training and employment of persons with disabilities and improve their access to the open labour market, and on the results achieved; as well as (ii) statistics 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. The Committee recalls that section 9 of the General Act on Equal Treatment provides that : (1) a difference 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, having regard to the ethos of the religious community or organization in question and by reason of their right to self-determination or by the nature of the particular activity”; and (2) the prohibition of different treatment on the grounds of religion or belief shall be without prejudice to the right of the religious community to require individuals working for them to “act in good faith and with loyalty to the ethos of the organization”. The Committee previously noted that case law underlined the wide discretion that religious communities enjoy as to the duties of loyalty that can justify unequal treatment and that cases 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, were reported. The Committee also previously noted that, as a consequence of 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 (No. 8 AZR 501/14), section 9 of the General Act on Equal Treatment: (1) cannot be applied any longer as far as it refers to the right of self-determination of religious communities, and (2) must be interpreted restrictively as far as it refers to the nature of the activity concerned. The Committee notes the Government’s statement that both above-referred rulings represent the most recent case law under that provision, and national courts should comply with it in their decisions in similar cases. In that regard, the Committee notes the Government’s statement that two rulings of the Federal Labour Court (No. 8 AZR 562/16 and No. 2 AZR 746/14) and one ruling of the Hamm State Labour Court (Westphalia) (No. 18 Sa 639/18) issued between October 2018 and February 2019 have interpreted section 9 of the General Act on Equal Treatment in the light of the above-referred case-law. Finally, the Committee observes that, in its 2020 Country Report on Non-Discrimination, the European Commission identified as a specific issue the formulation of the justification of unequal treatment for religion or belief provided for in section 9 of the Act that depends on judicial interpretation (page 13). 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 continue to provide information on the application of section 9 of the General Act on Equal Treatment in practice, including on any court decision applying or interpreting this provision.

Articles 2 and 3. Equality of opportunity and treatment for men and women. Vertical and horizontal occupational segregation. The Committee recalls the adoption in 2015, of the Act on Equal Participation of Women and Men in Leadership Positions in the Public and Private Sectors, introducing a mandatory 30 per cent gender quota, to be realized by 2016, for supervisory boards of more than 100 companies that are publicly listed and subject to parity co-determination. Noting the persistent vertical and horizontal occupational segregation, it had previously requested the Government to provide information on its implementation and any measures taken to combat gender stereotypes in this regard. With respect to the measures taken to combat horizontal gender segregation, the Committee notes the Government’s indication that the Girls’ and Boys’ Days initiatives were continued to raise awareness of gender-stereotypical career choices, and that a new “Stereotypes-free” Campaign was launched to assist all stakeholders involved in the career choice process to support girls and boys in their career choice based on their strengths and inclinations rather than on gender stereotypes. The Government adds, in its supplementary information, that stereotype-free materials and programmes are available online and 260 partners have already undertaken to promote not gender-specific career or study guidance. The Committee also notes the Government’s indication that as a result of the coronavirus pandemic, the next specialized conference to be organized in this framework was postponed to March 2021. As regards the measures taken to combat vertical occupational gender segregation, the Committee notes that the Government refers to a number of initiatives undertaken by several stakeholders in order to raise awareness of gender stereotypes in the labour market and address them. The Government indicates that: (1) in the public sector, the share of women in all leadership positions throughout the entire public service slightly increased from 33 per cent in 2015 to 35 per cent in 2017, while women represent up to 52 per cent of workers in the public service; and (2) in the private sector, the share of women in the supervisory boards of companies that are subject to a fixed quota increased from 21 per cent in 2015 to 34 per cent in 2019, while the share of women on the supervisory boards of companies without a fixed quota is on average a mere 19.6 per cent. The Committee further notes that 70 per cent of companies that have set themselves targets for their boards have set a “zero target”. In this regard, the Committee welcomes the Government’s indication that a draft bill is currently being drawn up in order to amend the Act on Equal Participation of Women and Men in Leadership Positions in the Private and Public Sectors in order to improve its effectiveness, including by introducing an obligation for the private sector companies to provide the reasons why a target is set at “zero”, as well as sanctions for non-compliance with the reporting obligations in relation to targets. The Committee notes that, according to the DGB, further statutory requirements are needed to extend the 30 per cent gender quota to other enterprises and enhance women’s access to higher leadership positions, as well as to decision-making positions at all the levels of management, including for women working part-time. The DGB further considers that the public sector lags far behind the goal of equal treatment of men and women, as the higher the level in the hierarchy the fewer women are represented. In the DGB’s views, in light of the role of the public sector to set an example, the setting of the 30 per cent quota is too low. The Committee notes the Government’s indication that, as regards women’s representation within the federal police, men are still overrepresented and the achievement of equal numbers among the workforce appears unlikely, even in a foreseeable future. The Government states that in order to make the police force more attractive for women, the federal police has created family-friendly working conditions, such as flexible working hours, part-time work and alternative teleworking but the nature of the work which is “physically demanding and involves dangerous activities” remains an obstacle for women to becoming police officers. In this regard, the Committee notes that, in its observations, the DGB considers that the Government’s statements serve the gender stereotypes that continue to exist in society and directly contradicts programmes such as the “Stereotypes-free” initiative. The DGB further indicates that according to the federal police’s 2018 annual report, women make up around 15 per cent of police officers and it is not known whether any investigations have been undertaken to explain why the share of women in the federal police force continues to be lower than that in the Länder police forces, where women make up 28 per cent on average, according to the Federal Statistical Office. In the DGB’s views, not all employees can enjoy the same levels of flexibility around their family commitments, in practice, and the DGB highlights that research studies carried out since 2012 show that women in the police forces continue to suffer structural discrimination, particularly where they opt to work part-time for family reasons. The Committee asks the Government to strengthen its efforts to address horizontal and vertical occupational gender segregation both in the public and private sectors, in cooperation with employers’ and workers’ organizations. It also asks the Government to provide information on: (i) any measures taken or envisaged to strengthen the effectiveness of the impact of the Act on Equal Participation of Women and Men in Leadership Positions in the Public and Private Sectors; (ii) any other measures taken to enhance women’s access to occupations traditionally dominated by men, such as the police forces, and decision-making positions, in particular with respect to employment under the direct control of a national authority; and (iii) the content and impact of specific measures taken to combat gender stereotypes and prejudices regarding women’s career aspirations and capabilities.

Reconciliation of work and family responsibilities. The Committee previously noted the several measures taken by the Government to enhance better conciliation between work and family responsibilities and counteract the preconception that family responsibilities are primarily a matter for women. It however noted 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 requested the Government to provide information on the measures taken to improve the reconciliation of work and family responsibilities for workers and to increase the number of workers with family responsibilities in the labour market. The Committee notes the Government’s statement that, since the introduction of the parental allowance in 2007, supported by the expansion in childcare services, the employment level among mothers with young children increased steadily and significantly. For mothers whose youngest child is between 1 and 2 years old, this rate increased from 34 per cent (in 2007) to 44 per cent (in 2017). The Government adds that a third of fathers of newborn children take parental leave during which they receive a parental allowance. In this regard, the Committee however notes that, in its observations, the DGB indicates that two thirds of fathers who take parental allowance continue to opt for the minimum period of two months and only 20 per cent opt for a genuine partner-based division of between three and nine months. The Committee further notes the Government’s indication that there has been an increase in the employment rate of women aged between 15 to 64 years, from 71.5 per cent in 2017, to 75.8 per cent in 2018. It however notes that, in its observations, the DGB again points out 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. The DGB adds that part-time employment of less than 32 working hours a week has significantly increased during the last 25 years, representing a 16 per cent increase for women (compared to 9 per cent for men), and today almost one out of two women work part-time. The Committee further notes that the DGB welcomes : (1) the fact that part-time training, introduced in 2005, has enabled mothers and fathers without vocational training to combine parenthood and training and successfully complete a vocational course as a result; as well as (2) the amendments introduced in the Act on Part-Time and Fixed-Term Work, from 1 January 2019, which provide that anyone who wishes to temporarily reduce his or her working hours is able to rely on the legal right to temporary part-time work (“bridge” part-time work) without having to give specific reasons for this (section 9(a)). The Committee notes that, in its observations, the DGB highlights that this right only applies for companies with more than 45 employees, thus excluding most women, two thirds of whom work in small and medium-sized enterprises. In the DGB’s views, the scope of application of section 9(a) of the Act on Part-Time and Fixed-Term Work and the right for temporary part-time work should be extended. The Committee asks the Government to continue to provide information on : (i) the steps taken to improve the reconciliation of work and family responsibilities for workers, both in the public and private sectors; (ii) the measures adopted to increase the number of workers with family responsibilities in the labour market, in particular working mothers, and the impact thereof; and (iii) 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. The Committee previously noted that after the Federal Anti-Discrimination Agency’s (ADS) model project ended in 2012, subsequent pilot projects on anonymized job applications were introduced, with the support of the ADS, in private enterprises and public administration in various Länder, as well as within associations and foundations, thus giving women and applicants with a migration background a better chance of being invited to an interview. It requested the Government to continue to provide information on the development of such pilot projects and their impact, as well as statistical information on the applicants selected through these processes. The Committee notes the Government’s indication that the ADS provided employers with information and guidelines on diversity within the workplace and discrimination-free personnel policy. It however notes that no information was provided by the Government regarding its previous requests. The Committee therefore asks the Government once again to provide: (i) specific information on the development of anonymized job application pilot projects in private enterprises and public administration in various Länder; (ii) any assessment made of their impact, including by providing extracts of relevant studies or reports; and (iii) statistical information, disaggregated by sex and national extraction, on the applicants selected through these processes.

Enforcement. Equality body. The Committee notes the Government’s statement that the ADS continued to raise awareness of different forms of discrimination and provided advice to people about their rights in case of discrimination. Concerning the measures envisaged to expand the mandate of the ADS, the Committee notes the Government’s indication that, as a result of an evaluation of the General Act on Equal Treatment commissioned in 2016 by the ADS, comprehensive recommendations were made on the need to revise the Act, in particular by expanding the powers of the ADS. The Government adds that it is currently reviewing these recommendations to examine whether any measures should be implemented in this regard. The Committee notes that, in its 2019 report, the European Commission against Racism and Intolerance (ECRI) highlights that the ADS still lacks sufficient authority to file or support court cases, launch investigations or impose sanctions in response to discrimination claims. The ECRI further states that it is aware of considerable resistance to strengthening equality bodies and anti-discrimination legislation (ECRI Report, sixth monitoring cycle, 10 December 2019, page 7 and paragraphs 2 and 8). The Committee asks the Government to provide information on the activities of the Federal Anti-Discrimination Agency in relation to employment and occupation, as well as on any measures taken or envisaged to consider expanding its mandate to include the investigation and filing of complaints in court, including as a follow-up to the evaluation undertaken in 2016. In the absence of information in the Government’s report on this point, the Committee asks once again the Government to provide information on 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.