{"id":30556,"date":"2023-03-15T10:58:37","date_gmt":"2023-03-15T09:58:37","guid":{"rendered":"https:\/\/www.fiala.de\/?p=30556"},"modified":"2026-06-22T21:44:42","modified_gmt":"2026-06-22T19:44:42","slug":"agg-professional-associations-equal-treatment-members","status":"publish","type":"post","link":"https:\/\/www.fiala.de\/en\/agg-professional-associations-equal-treatment-members\/","title":{"rendered":"When the AGG Reaches the Boardroom: Why Professional Associations Must Treat Members Like Employees"},"content":{"rendered":"

\u2013 Why professional associations must treat members the same as employees \u2013<\/strong><\/h2>\n

\u201cMountaineers: two men whose purpose is to climb mountains.\u201d<\/strong><\/h3>\n

(Expedition to Kilimanjaro, Monty Python\u2019s Wonderful World of Gravity)<\/strong><\/h3>\n

The German General Equal Treatment Act (AGG \u2013 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 \u201cm\/f\/d\u201d, no longer state an age requirement, and use gender-sensitive \u2013 carefully de-gendered \u2013 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.<\/p>\n

Members of professional associations are also protected by the AGG<\/strong><\/h3>\n

Section 2 of the AGG (\u201cProtection of employees against discrimination\u201d) is extended by \u00a7 18 AGG<\/a> to membership in \u2013 not only \u2013 professional associations:<\/em><\/p>\n

\u201c(1) The provisions of this section shall apply mutatis mutandis to membership or participation in an \u2026 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.<\/p>\n

(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.\u201d<\/p>\n

Such professional associations may include, for example, professional chambers and associations, trade associations, and even self-employed professional athletes in the relevant federations \u2013 or, for amateur mountaineers, a mountaineering club of outstanding importance.<\/p>\n

Under \u00a7 7 AGG<\/a>, no member may then be disadvantaged within the association for any of the reasons listed in \u00a7 1 AGG<\/a>. These include discrimination on grounds of race or ethnic origin, gender, religion or belief, disability, age or sexual identity.<\/p>\n

Section 2 of the AGG expressly lists, among these grounds, the prohibition of discrimination regarding \u201cmembership and participation in an employees\u2019 or employers\u2019 association, or in an association whose members belong to a particular occupational group, including the use of the services of such associations\u201d.<\/p>\n

Indirect discrimination is also prohibited<\/strong><\/h3>\n

A person is directly disadvantaged where, because of one of these grounds, they are treated less favourably than another person in a comparable situation.<\/p>\n

Indirect discrimination \u2013 that is, discrimination based on seemingly neutral criteria \u2013 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.<\/p>\n

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 \u2013 an indirect age disadvantage \u2013 from professional-association committees in order to ensure their members\u2019 ongoing contact with practising professionals.<\/p>\n

Unequal treatment is, however, permitted as a positive measure to compensate for existing disadvantages \u2013 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.<\/p>\n

An association\u2019s autonomy is restricted under the conditions of the AGG. Provisions in agreements that violate the prohibition of discrimination are void \u2013 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.<\/p>\n

Professional associations must comply with the rules in the same way as employers<\/strong><\/h3>\n

Under \u00a7 11 AGG<\/a>, 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 \u201cofficial\u201d genders \u2013 for example only \u201cfemale and male engineers\u201d, or merely \u201cengineers\u201d without the clarification \u201cm\/f\/d\u201d, \u201call genders\u201d, or a gender asterisk \u2013 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.<\/p>\n

Under \u00a7 12 AGG<\/a>, 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 \u2013 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.<\/p>\n

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.<\/p>\n

For instance, a professional association\u2019s 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.<\/p>\n

Professional associations must set up a complaints office for members<\/strong><\/h3>\n

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 \u2013 by the association itself or by other members \u2013 in connection with their membership on any of the grounds mentioned above. The complaint must be examined by the association\u2019s competent complaints office, and the outcome must be communicated to the complaining member.<\/p>\n

The AGG, together with information about the body responsible for handling complaints, must be made known within the professional association \u2013 for example, through the information and communication technology customary in that association.<\/p>\n

The professional association may not discriminate against members \u2013 or their employees \u2013 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.<\/p>\n

Every appearance of impropriety is to be avoided<\/strong><\/h3>\n

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.<\/p>\n

Even a refusal to provide information \u2013 all the more so a demonstrably false one \u2013 about the reasons for less favourable treatment may constitute sufficient evidence (LAG Rheinland-Pfalz (Regional Labour Court), judgment of 25 March 2011 \u2013 ref.: 9 Sa 678\/10<\/a>).<\/p>\n

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.<\/p>\n

It is already problematic to address only \u201cfemale and male physicists\u201d for advertised participation, since this excludes the \u201cdiverse\u201d 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 \u2013 all the more so if it is announced that, without this information, the application for participation in the association\u2019s 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.<\/p>\n

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 \u201cMr\u201d and \u201cMrs\u201d when addressing someone, or to use only \u201cDear Sir or Madam\u201d without at least adding a gender-neutral form of address.<\/p>\n

Gender-sensitive certificates and job titles<\/strong><\/h3>\n

Many professional associations confer professional designations or so-called \u201ctitles\u201d, 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 (\u201cdiverse\u201d) are not reflected, could disadvantage those members when they take up the training services offered by their professional association \u2013 because it forces them to choose between two \u201ctitles\u201d 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 \u201cspecialist physician\u201d or \u201cspecialist attorney\u201d).<\/p>\n

It is therefore advisable to make clear at an early stage that \u2013 whatever the statutes, or sometimes even a law or regulation, may say \u2013 the association will, on request, issue non-binary certificates or confer such \u201ctitles\u201d, and will do so showing only the initials rather than the full first name.<\/p>\n

Employers must protect employees even when they act within a professional association<\/strong><\/h3>\n

Many members of professional associations \u2013 such as those in the medical and legal professions \u2013 are employed by other employers. Where they then carry out an activity for their employer within the professional association \u2013 for example, through further training or the representation of interests \u2013 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 \u2013 for example on Corona infection protection \u2013 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.<\/p>\n

\u201cWhere 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.\u201d Thus \u00a7 12(4) AGG<\/a> also applies to professional associations as \u201cthird parties\u201d. 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 \u2013 for example, by issuing warnings to the professional association, up to the point of ceasing to cooperate with it.<\/p>\n

Disadvantages become complex and expensive<\/strong><\/h3>\n

The AGG provides for a reversal of the burden of proof once a single indication of discrimination has been shown \u2013 after which that burden can scarcely ever be discharged. This can become very expensive on account of damages and compensation for \u201cpain and suffering\u201d, 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.<\/p>\n

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.<\/p>\n

by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm<\/p>\n

by courtesy of<\/p>\n

www.experten.de<\/a> (published in ExpertenReport 03\/2023, pages 60 \u2013 63)<\/p>\n

Link:<\/p>\n

https:\/\/kiosk.experten.de\/de\/profiles\/e3596a099c43-experten-report\/editions\/expertenreport-03-23\/pages\/page\/32<\/a><\/p>\n

https:\/\/kiosk.experten.de\/de\/profiles\/e3596a099c43-experten-report\/editions\/expertenreport-03-23\/pages\/page\/33<\/a><\/p>\n

and<\/p>\n

www.paderzeitung.de<\/a> (published 27 March 2023 under the headline: Why professional associations must treat members the same as employees).<\/p>\n

Link: www.paderzeitung.de\/2023\/03\/warum-berufsvereinigungen-mitglieder-wie-arbeitnehmer-gleichbehandeln-muessen\/<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

The German General Equal Treatment Act (AGG) does not stop at the employment relationship: under \u00a7 18 AGG it also binds professional associations, chambers and federations towards their members and applicants. We explain the duties, the reversal of the burden of proof, and the costly traps associations must avoid.<\/p>\n","protected":false},"author":3,"featured_media":30554,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"inline_featured_image":false,"footnotes":"","rank_math_focus_keyword":"","rank_math_description":"","rank_math_title":""},"categories":[28],"tags":[],"class_list":["post-30556","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-uncategorized"],"acf":[],"_links":{"self":[{"href":"https:\/\/www.fiala.de\/en\/wp-json\/wp\/v2\/posts\/30556","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.fiala.de\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.fiala.de\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.fiala.de\/en\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/www.fiala.de\/en\/wp-json\/wp\/v2\/comments?post=30556"}],"version-history":[{"count":1,"href":"https:\/\/www.fiala.de\/en\/wp-json\/wp\/v2\/posts\/30556\/revisions"}],"predecessor-version":[{"id":30716,"href":"https:\/\/www.fiala.de\/en\/wp-json\/wp\/v2\/posts\/30556\/revisions\/30716"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.fiala.de\/en\/wp-json\/wp\/v2\/media\/30554"}],"wp:attachment":[{"href":"https:\/\/www.fiala.de\/en\/wp-json\/wp\/v2\/media?parent=30556"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.fiala.de\/en\/wp-json\/wp\/v2\/categories?post=30556"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.fiala.de\/en\/wp-json\/wp\/v2\/tags?post=30556"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}