Diskriminierung wegen "Rasse" und "ethnischer Herkunft" - Probleme bei der Umsetzung der RL 2000/43/EG im Arbeitsrecht

Directive 2000/43/EC postulates the application of the principle of equal treatment without discrimination based on race or ethnic origin. When one compares the problems of gender discrimination and race discrimination, it becomes apparent that gender is a clear criterion, whilst the notion of race is a construct that is artificial and cannot be comprehended by science. The central instrument for realising the principle of equality is prohibition of discrimination based on race and ethnic origin. The concept of direct discrimination has as a prerequisite that a comparable person can be found who has not been treated so unfavourably. Indirect discrimination is given when seemingly neutral rules, criteria or procedures can discriminate against persons belonging to a race or ethnic group in a particular way. This criterion should make ethnic statistics dispensable. Other forms of discrimination are molestation and ordering others to discriminate. Whilst German Labour Law does have a certain legal framework against discrimination on a horizontal level (between colleagues) the picture is not that good regarding discrimination on the vertical level, that means regarding chances to be hired and promoted. The article quotes the prohibition of discrimination in Works Constitution Law (§ 75 Works Constitution Act) and § 138 Civil Code respectively unwritten principles of contrahendum-relationship. The Works Constitution Act provides for selection guidelines. The Trade Unions have drafted model collective agreements against discrimination.