– 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 General Equal Treatment Act (AGG) has been in force since 2006, which has made employers in particular very cautious. For example, by explicitly referring to all now at least three genders as “m/f/d” in job advertisements and also no longer specifying age, as well as using gender-sensitive – correctly counter-gendered – language. However, many professional associations have not yet recognized that they have duties towards members and applicants for membership, and 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, if there is a fundamental interest in acquiring membership, as well as their respective associations.
(2) If the rejection constitutes a violation of the prohibition of discrimination under Section 7 para. 1 constitutes an entitlement to membership or participation in the associations referred to in paragraph 1.”
Such professional associations may include, for example, members of professional chambers and associations, trade associations and also self-employed professional athletes in corresponding associations. Or even for amateur mountaineers a corresponding mountain club, given an outstanding importance.
Then, in accordance with § 7 AGG, no member may be disadvantaged in the association because of a reason mentioned in § 1 AGG. This includes discrimination on the grounds of race or ethnic origin, gender, religion or belief, disability, age or sexual identity.
Section 2 of the AGG explicitly mentions among these grounds the prohibition of discrimination with regard to “membership and participation in an employees’ or employers’ association or 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 if he or she is treated less favorably than another person in a comparable situation because of one of these reasons.
However, indirect discrimination – i.e. discrimination based on what appear to be neutral criteria – on one of these grounds is also inadmissible. For example, if explicit reference is made to a specific native language instead of only to the sufficient language skills actually required, or if a minimum size is required that is undercut by the majority of women.
If the difference in treatment is objectively justified by a legitimate aim and the means to achieve this aim are appropriate and necessary, there is no impermissible discrimination. For example, the exclusion of retirees – indirect age disadvantage – from professional association committees to ensure their contact with professionals.
However, unequal treatment as a positive measure to compensate for existing disadvantages is permitted – e.g. promotion of women if they would otherwise be disadvantaged. However, this may not be the case in some professions with a high proportion of women.
The autonomy of the association is restricted under the conditions of the AGG. Provisions in agreements that violate the prohibition of discrimination are invalid – this may also apply to the articles of association, for example. Nor can a majority of members effectively decide them – and an association board cannot invoke such majority decisions.
Professional associations must comply with regulations as for employers accordingly
According to § 11 AGG, this concerns not only the admission as an association member or for upstream training, but also the advertisement for participation in association bodies, committees, working groups, etc. Already a designation of the addressees that does not include all at least three “official” genders – for example only “female and male engineers” or even only “engineers” without clarification “m/f/d”, “all gender” or with gender star is a violation of the law and thus prohibited. So are unjustified age limits, work experience requirements, or announcements for entry-level employees only without compelling reasons.
In accordance with § 12 AGG, the professional association is obliged to take necessary measures to protect against discrimination, including preventive measures. To this end, it must, for example, point out the inadmissibility of such discrimination in the context of training and continuing education – and work to ensure that it does not occur. To fulfill this duty, the Board may also provide appropriate training to members for the purpose of preventing discrimination.
If members violate the prohibition of discrimination, the Executive Board shall take the appropriate, necessary and reasonable measures in the individual case to stop the discrimination, such as a warning or exclusion from the Association.
For example, as the executive board of a professional association, providing a chat for even anonymous gender-hostile statements by its members on the Internet, or not reacting clearly to such statements is an absolute no-go.
Professional associations must establish a complaints office for members
Members have the right to complain to the competent body of the professional association pursuant to Section 13 AGG if they feel that they have been discriminated against by the professional association – or other members – in connection with their membership on any of the aforementioned grounds. The complaint shall be examined by the competent complaints office of the professional association and the result shall be communicated to the complaining member.
The AGG as well as information about the body responsible for handling complaints shall be made known in the professional association, for example by using the information and communication technology customary in the professional association.
The professional association may not discriminate against members – and their employees – for claiming rights under AGG or for refusing to carry out an instruction that violates these provisions, including anyone who assists disadvantaged persons in doing so or testifies to the testimony.
Every evil appearance is to be avoided
If, in the event of a dispute, circumstantial evidence is provided that suggests a disadvantage due to the above-mentioned reasons, the other party bears the burden of proving that there was no violation of the provisions on protection against disadvantage. However, this reversal of the burden of proof can hardly ever be fulfilled in practice, and if it is, then in the case of invitations to tender for participation in association committees, etc., only with a considerable amount of documentation of the entire selection process, just as in the case of appointments by employers.
Even a refusal to provide information (a fortiori demonstrably false) about the reasons for less favorable treatment may be sufficient evidence (LAG Mainz, judgment of March 25, 2011 – ref.: 9 Sa 678/10).
As with job advertisements by employers, it is therefore also absolutely sensible in the case of professional associations to avoid any indication of a possible disadvantage in advance.
It is already critical to explicitly address only “female and male physicists” for the advertised participation, since this does not include the diverse gender, but only addresses the two purely binary genders women and men. Even just the question about the date of birth could be an indication of intended age discrimination, all the more so if it is announced that without this information the application for participation in working groups of the association will not be processed. The same applies if the consent to the use of the date of birth is described as indispensable in data protection notices on the occasion of such applications.
A request for a photo or the full first name instead of just initials can also be an indication, as this can be used to infer gender and possibly also age and ethnic origin. It is a very bad idea to leave the choice between “Mr.” and “Mrs.” when addressing someone, or to address them only with “Dear Sir or Madam” instead of at least adding “Dearly Beloved”, if not using it alone.
Gender-sensitive certificates and job titles
Many professional associations award professional designations or so-called “titles”, or certify, for example, membership, continuing education and training. The use of non-gender-appropriate terms such as the generic masculine (“physician”) or purely binary forms (“physician”), in which members of a non-binary gender (“diverse”) are not reflected, could put them at a disadvantage when they take advantage of the training services offered by their professional association. Because it only allows them to decide between two “titles” with subjectively wrong gender. Professional associations, for example, should not only hold out the prospect of binary designations in bylaws or continuing education regulations (such as for specialist physician or specialist attorney).
It is therefore advisable to point out at an early stage that no matter what the statutes – sometimes even a law or a regulation – say, they will issue non-binary certificates on request or grant such “titles”, and this instead of a full first name also only with its initials.
Employers must protect employees even if they are working in a professional association
Many members in professional associations – such as those in the medical and legal professions – are employed by other employers. If they then carry out an activity for their employer in the professional association – for example, through further training or representation of interests – they must also be protected by their employer against discrimination in doing so. This can be recognized by the fact that the employer treats the activity in the professional association as a business trip and pays for it as working time. Or official regulations, for example on corona infection protection, which could not be ordered in this way for purely private activities. What he can avoid, however, by omitting exactly all this and emphasizing the purely private character of the activity in the professional association.
“If employees are discriminated against in the performance of their duties by third parties pursuant to Section 7(1), the employer shall take the appropriate, necessary and reasonable measures in the individual case to protect the employees.” Thus, § 12 para. 4 AGG also applies to professional associations as “third parties”. The employee can then also complain about any discrimination by the professional association prohibited under the AGG to the body to be set up by the employer, which must then investigate and report the result. Employers must then remedy justified complaints, for example by issuing warnings to the professional association until they cease working with it.
Disadvantages become complex and expensive
The AGG provides for the reversal of the burden of proof in the case of discrimination after only one index has been proven – it is then almost impossible to meet this burden. This can then become very expensive because of damages and “pain and suffering”, apart from the loss of prestige. However, the appointment of boards and committees and thus the work of a professional association can also be impeded if this is challenged on the grounds of discrimination under the AGG. It is therefore all the more important that professional associations recognize their obligations under the AGG precisely and comply with them, avoiding even the slightest indication of discrimination. In addition, all internal procedures must be designed to be AGG-compliant, trained in them, and their implementation must be documented in detail for the purpose of preserving evidence.
In view of the numerous pitfalls, it is also helpful to ensure that the complaints body required by law under the AGG is sufficiently qualified in order to avoid more costly legal disputes at a later date.
by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm
by courtesy of
www.experten.de (published in ExpertenReport 03/2023, pages 60 – 63)
www.paderzeitung.de (Published 03/27/2023 under the headline: Why professional associations must treat members the same as employees).
Our office in Munich
You will find our office at Fasolt-Strasse 7 in Munich, very close to Schloss Nymphenburg. Our team consists of highly motivated attorneys who are available for all the needs of our clients. In special cases, our law firm cooperates with selected experts to represent your interests in the best possible way.
About the author
PhD, MBA, MM
Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
»More about Dr. Johannes Fiala
On these pages, Dr. Fiala provides information on current legal and economic topics as well as on current political changes that are of social and/or corporate relevance.
Arrange your personal appointment with us.
You are already receiving legal advice and would like a second opinion? In this case please contact Dr. Fiala directly via the following link.
(The first phone call is a free get-to-know-you conversation; without consulting. You will learn what we can do for you & what we need from you in terms of information, documents for a qualified consultation.)