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SPIEGEL ONLINE

01/07/2009 06:19 PM

Unequal Opportunities

German Women Disappointed by Job Discrimination Act

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Germany's 2006 Equal Treatment Act was hailed as a victory for women set on fighting discrimination in the work place. But with the burden of proof -- and the costs -- on them, many aren't even trying to assert their rights.

Silke Kühne is not a director at her company, but she earns as much as a director does. Kühne works at GEMA, the company managing music rights in Germany, which has now been ordered to pay her the €1,400 ($1,900) difference between her monthly salary and a director's as well as €20,000 in damages for "mobbing," a form of emotional harrassment in the workplace. If things had gone the way they should have, Kühne would probably have been made an executive by now. But, as she puts it, "the gentlemen gently pulled me over the barrel."

In a ruling that is a first of its kind in Germany, a court has now ruled in Kühne's favor. The court's decision was based on provisions in the General Equal Treatment Act (AGG) passed in August 2006. The law fulfills European Union guidelines and includes pledges to make it easier to more effectively prosecute discrimination against women in the workplace.

The EU has been calling on Germany to adopt such legislation for years. On average, German women earn 23 percent less than their male counterparts, which puts Germany in the lower third in a ranking of EU countries -- roughly the same level as women in Estonia, Slovakia and Great Britain. The share of women in top management positions in major German companies is 5.5 percent -- or, once again, in the basement when compared with other European countries.

But who should we blame for this? Bosses? Men? Women? Even if you can't change people, though, you can change the law. After AGG was passed, experts predicted that it would transform "social traffic regulations" in Germany. And many expected large numbers of disgruntled women to take their cases before German courts.

So, what has the AGG really done for women? Have they marshaled themselves to fight discrimination in the workplace? And, is it worth it now for women to sue their own bosses? Or must those who choose to do so say auf Wiedersehen to their jobs?

A Matter of Numbers

Silke Kühne is 47, tall and blonde. She has been working for GEMA in Berlin for 15 years, and she's been in charge of the company's human resources department since 2002. Above her in the company hierarchy, there are 27 directors and three members of the executive board. All are men.

In the spring of 2006, Kühne's then-boss shared with her over dinner that he was being promoted and that his position as a director was going to open up. That's when Kühne started keeping her ears pricked, waiting for the position to be posted so that she could try to fill her boss's shoes. Then she learned that a colleague of hers had been given the job, which had never been posted. She sued.

"If Ms. Kühne had lost," says Hans-Georg Kluge, her lawyer, "we could have just tossed the AGG in the garbage." "A woman would never have won a case after that."

Kühne's victory might have something to do with her position as director of human resources. Her job gives her access to information that is strictly off-limits to other employees, such as employee data and salaries -- all of which proved valuable in court.

Kluge hired a mathematician to calculate the probability of there being not a single woman among the 27 directors above Kühne, while almost half of the employees at the level just below that of director are women. The mathematician performed so-called Monte Carlo simulations and subjected the numbers to statistical analyses. His conclusion: There is a 99 percent probability that it is no accident that the top management level of management includes no women.

Kühne also won her case because she was the right woman at the right time. She will, of course, have to defend herself next year when Germany's Federal Labor Court hears GEMA's appeal; but she also stands a strong chance of winning there, too.

Still, Kühne is an exception. Two years after the AGG has been in effect, the surprising conclusion is: other women don't even bother to try.

Putting the Burden in the Wrong Place

Gerhard Binkert is a judge on the Berlin Labor Court. He estimates that the court handles about 25,000 cases each year, including those involving terminations and written warnings to employees. And when it comes to plaintiffs invoking the AGG over the last 30 months, Binkert puts the number at a mere 36 and adds that the numbers have been too meager to warrant spending any time on compiling related statistics.

Another detail: Hardly any of those 36 plaintiffs were women. When asked to explain that fact, Binkert hesitates before adding: "You need staying power. It isn't easy. And you could lose."

In Germany, taking your boss to court is more difficult than it is in other countries. According to German law, a woman must first prove that she is not receiving equal treatment. Someone who feels discriminated against by a supervisor often has to compile a paper trail full of telling interpersonal details. As everybody knows, though, it's no simple task to find an e-mail from a boss telling a female employee that her pregnancy might have something to do with her fact that she didn't get promoted.

But, with the help of statistical evidence, a plaintiff no longer has to argue for defamation of character at the lunch table or an insult in the hallway. She can let the numbers to speak for themselves.

Ingrid Weber, a former judge on the Berlin Labor Court, sits on a commission formed by the German Women Lawyers Association (djb) to address issues related to the AGG. As Weber sees it, when Germany introduced the new law, it neglected to make things easier for women by shifting the burden of proof to the employer. "Here in Germany, first you have to present all kinds of airtight evidence of discrimination," Weber says, "and only then is it the company's turn to prove that it did everything correctly." In many other countries, she adds, it is enough for the plaintiff to establish probable cause for unequal treatment, while the employer is required to prove that it did not discriminate.

In Austria, for example, the government actively supports citizens trying to combat discrimination. An Austrian citizen who believes he or she is earning less than a colleague with the same qualifications can appeal to an equal opportunity commission. The commission then contacts the company and requests salary details and prepares a report that the would-be plaintiff can then present to a court. And the entire process is paid for with tax money. "In Germany," Weber says, "you first have to pay for your lawsuit out of your own pocket."

The former judge says that you would think that the AGG had been "designed primarily for women." But the fact is, she adds, that "men are likely to sue much more quickly." Weber's reasoning: "They tend to file suits against alleged female quotas or when they feel that they were passed over for a promotion. Perhaps they're also a bit more daring. A woman is more realistic when it comes to calculating her odds of winning."

Patience & Precedence

The results of the AGG have not been encouraging. It has done little, if anything, to affect gender ratios at the level of senior executives. Still, judges, lawyers and their clients hope that the handful of cases will have a broad impact. In particular, they are anxious to hear the court's decision in the case of Barbara Steinhagen, which will be made public next Thursday. Steinhagen, a former marketing director at Sony BMG, sued her employer for allegedly denying her a promotion when she became pregnant. And right after she returned to work from her maternity leave, she was shown the door.

Hartmut Braunschneider, another attorney who has been on the legal team representing Silke Kühne, believes that his client has established a precedent. He also sees the case as a deterrent and predicts that employers will pay a high price for discrimination in the future. To back up his beliefs, Braunschneider cites the psychological principle of anchoring, which holds that people will eventually accept something as a social reality if they have heard it often enough.

Until that happens, though, women will still trail behind their male counterparts -- simply because they are women.

Translated from the German by Christopher Sultan

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