– Why professional associations must treat members the same as employees –
“Mountaineers: two men whose purpose is to climb mountains.”
(Expedition to Kilimanjaro, Monty Python’s Wonderful World of Gravity)
The German General Equal Treatment Act (AGG – Allgemeines Gleichbehandlungsgesetz) has been in force since 2006, and it has made employers in particular very cautious. Job advertisements, for example, now expressly refer to all at least three genders as “m/f/d”, no longer state an age requirement, and use gender-sensitive – carefully de-gendered – language. Many professional associations, however, have not yet recognised that they owe members and applicants for membership duties, and that members enjoy corresponding rights, analogous to those of employees.
Members of professional associations are also protected by the AGG
Section 2 of the AGG (“Protection of employees against discrimination”) is extended by § 18 AGG to membership in – not only – professional associations:
“(1) The provisions of this section shall apply mutatis mutandis to membership or participation in an … association whose members belong to a particular professional group, or which holds a predominant position of power in the economic or social sphere, where there is a fundamental interest in acquiring membership, as well as to their respective umbrella associations.
(2) Where a refusal constitutes a violation of the prohibition of discrimination under Section 7(1), it gives rise to a claim to membership or participation in the associations referred to in paragraph 1.”
Such professional associations may include, for example, professional chambers and associations, trade associations, and even self-employed professional athletes in the relevant federations – or, for amateur mountaineers, a mountaineering club of outstanding importance.
Under § 7 AGG, no member may then be disadvantaged within the association for any of the reasons listed in § 1 AGG. These include discrimination on grounds of race or ethnic origin, gender, religion or belief, disability, age or sexual identity.
Section 2 of the AGG expressly lists, among these grounds, the prohibition of discrimination regarding “membership and participation in an employees’ or employers’ association, or in an association whose members belong to a particular occupational group, including the use of the services of such associations”.
Indirect discrimination is also prohibited
A person is directly disadvantaged where, because of one of these grounds, they are treated less favourably than another person in a comparable situation.
Indirect discrimination – that is, discrimination based on seemingly neutral criteria – on one of these grounds is also impermissible. Examples include insisting on a particular native language rather than on the level of language skills actually required, or imposing a minimum height that the majority of women cannot meet.
There is no impermissible discrimination where the difference in treatment is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. One example is excluding retirees – an indirect age disadvantage – from professional-association committees in order to ensure their members’ ongoing contact with practising professionals.
Unequal treatment is, however, permitted as a positive measure to compensate for existing disadvantages – for example, the promotion of women where they would otherwise be disadvantaged. This may not be justified, though, in certain professions that already have a high proportion of women.
An association’s autonomy is restricted under the conditions of the AGG. Provisions in agreements that violate the prohibition of discrimination are void – this may also apply, for instance, to the articles of association. Nor can a majority of members validly adopt such provisions, and an association board cannot rely on such majority decisions.
Professional associations must comply with the rules in the same way as employers
Under § 11 AGG, this concerns not only admission as a member or to preparatory training, but also advertisements seeking participation in association bodies, committees, working groups, and the like. Even a description of the addressees that fails to include all at least three “official” genders – for example only “female and male engineers”, or merely “engineers” without the clarification “m/f/d”, “all genders”, or a gender asterisk – is a breach of the law and therefore prohibited. So too are unjustified age limits, work-experience requirements, or notices aimed solely at entry-level applicants without compelling reasons.
Under § 12 AGG, the professional association is obliged to take the measures necessary to protect against discrimination, including preventive measures. To this end it must, for example, point out the impermissibility of such discrimination in the context of training and continuing education – and work to ensure that it does not occur. To fulfil this duty, the board may also provide members with appropriate training aimed at preventing discrimination.
Where members violate the prohibition of discrimination, the board must take the appropriate, necessary and reasonable measures in the individual case to stop it, such as issuing a warning or expelling the member from the association.
For instance, a professional association’s board that provides an online forum for anonymous, gender-hostile statements by its members, or that fails to react clearly to such statements, commits an absolute no-go.
Professional associations must set up a complaints office for members
Under Section 13 AGG, members have the right to complain to the competent body of the professional association if they feel they have been discriminated against – by the association itself or by other members – in connection with their membership on any of the grounds mentioned above. The complaint must be examined by the association’s competent complaints office, and the outcome must be communicated to the complaining member.
The AGG, together with information about the body responsible for handling complaints, must be made known within the professional association – for example, through the information and communication technology customary in that association.
The professional association may not discriminate against members – or their employees – for asserting rights under the AGG, or for refusing to carry out an instruction that violates these provisions; this protection also covers anyone who supports disadvantaged persons in doing so or who gives evidence in such matters.
Every appearance of impropriety is to be avoided
Where, in a dispute, circumstantial evidence is provided suggesting a disadvantage on one of the grounds mentioned above, the other party bears the burden of proving that there was no breach of the protective provisions. In practice this reversal of the burden of proof can hardly ever be discharged; and where it can, in the case of calls for participation in association committees and the like, it requires extensive documentation of the entire selection process, just as with appointments by employers.
Even a refusal to provide information – all the more so a demonstrably false one – about the reasons for less favourable treatment may constitute sufficient evidence (LAG Rheinland-Pfalz (Regional Labour Court), judgment of 25 March 2011 – ref.: 9 Sa 678/10).
As with job advertisements by employers, it is therefore also entirely sensible for professional associations to avoid, from the outset, any indication of a possible disadvantage.
It is already problematic to address only “female and male physicists” for advertised participation, since this excludes the “diverse” gender and addresses only the two purely binary genders, women and men. Even merely asking for a date of birth could indicate intended age discrimination – all the more so if it is announced that, without this information, the application for participation in the association’s working groups will not be processed. The same applies where consent to use the date of birth is described as indispensable in the data-protection notices accompanying such applications.
A request for a photograph, or for the full first name rather than just the initials, can likewise be an indication, since it allows inferences about gender and possibly also age and ethnic origin. It is a very bad idea to offer only the choice between “Mr” and “Mrs” when addressing someone, or to use only “Dear Sir or Madam” without at least adding a gender-neutral form of address.
Gender-sensitive certificates and job titles
Many professional associations confer professional designations or so-called “titles”, or certify, for example, membership and continuing training. Using non-gender-appropriate terms, such as the generic masculine or purely binary forms, in which members of a non-binary gender (“diverse”) are not reflected, could disadvantage those members when they take up the training services offered by their professional association – because it forces them to choose between two “titles” with, subjectively, the wrong gender. Professional associations should therefore not hold out the prospect of only binary designations in their bylaws or continuing-education regulations (such as “specialist physician” or “specialist attorney”).
It is therefore advisable to make clear at an early stage that – whatever the statutes, or sometimes even a law or regulation, may say – the association will, on request, issue non-binary certificates or confer such “titles”, and will do so showing only the initials rather than the full first name.
Employers must protect employees even when they act within a professional association
Many members of professional associations – such as those in the medical and legal professions – are employed by other employers. Where they then carry out an activity for their employer within the professional association – for example, through further training or the representation of interests – their employer must also protect them against discrimination while doing so. This can be inferred where the employer treats the activity in the professional association as a business trip and pays for it as working time, or from official requirements – for example on Corona infection protection – that could not be imposed in this way for purely private activities. The employer can avoid this, however, by omitting exactly all of that and emphasising the purely private character of the activity in the professional association.
“Where employees are discriminated against by third parties in the performance of their duties within the meaning of Section 7(1), the employer shall take the appropriate, necessary and reasonable measures in the individual case to protect the employees.” Thus § 12(4) AGG also applies to professional associations as “third parties”. The employee may then complain to the body to be set up by the employer about any discrimination by the professional association prohibited under the AGG, which must then investigate the matter and report the result. Employers must remedy justified complaints – for example, by issuing warnings to the professional association, up to the point of ceasing to cooperate with it.
Disadvantages become complex and expensive
The AGG provides for a reversal of the burden of proof once a single indication of discrimination has been shown – after which that burden can scarcely ever be discharged. This can become very expensive on account of damages and compensation for “pain and suffering”, quite apart from the loss of prestige. The appointment of boards and committees, and thus the work of a professional association as a whole, can also be obstructed if it is challenged on grounds of discrimination under the AGG. It is therefore all the more important that professional associations identify their AGG obligations precisely and comply with them, avoiding even the slightest indication of discrimination. In addition, all internal procedures must be designed to be AGG-compliant, staff and members must be trained in them, and their implementation must be documented in detail for evidentiary purposes.
Given the numerous pitfalls, it is also advisable to ensure that the complaints body required by law under the AGG is sufficiently qualified, so as to avoid more costly legal disputes later on.
by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm
by courtesy of
www.experten.de (published in ExpertenReport 03/2023, pages 60 – 63)
Link:
and
www.paderzeitung.de (published 27 March 2023 under the headline: Why professional associations must treat members the same as employees).
