Proving Discrimination Cases

The Labour Tribunal of Berlin-Brandenburg “believes that statistical evidence must be taken into consideration, because there would otherwise be no way of bringing to light hidden discrimination in promotion cases (‘glass ceiling’)”.

Judgement of the Labour Tribunal Berlin-Brandenburg, 26 November 2008, Az. 15 Sa 517/08

Proving that there has been a case of discrimination can be difficult. For certain forms of direct and indirect discriminationstatistical data may provide evidence, substantiate it, or help to establish proof in court. In cases of direct and indirect discrimination, court proceedings often take recourse to statistics.

However, in Germany this has been done in very few cases, as the required sensitive data (including ethnic origin and religion) is seldom collected, and thus rarely available.

Direct Discrimination

We speak of direct discrimination if a person in a concrete situation is treated less favourably than a comparable person. For example, a woman in a senior position filed a complaint in a Berlin court for being denied a verbally promised promotion to a management position. As she had become pregnant before the commencement of her new position, a male colleague was given preference. In 2008, the Employment Appeals Tribunal of Berlin-Brandenburg ruled in her favour, as she was able to provide statistical evidence. The statistics revealed that, even though the vast majority of employees in her company were women, management positions were largely occupied by men.

In another example, parents in the Czech Republic with a Roma background filed a complaint, as their children were placed in a special needs class without having undergone appropriate testing. Statistical evidence that shows that a disproportionate amount of Roma children are placed in special needs classes persuaded the Grand Chamber of the European Court of Human Rights that ethnic discrimination had taken place.

Indirect Discrimination

In cases of indirect discrimination a seemingly neutral regulation disproportionately puts groups with certain characteristics at a disadvantage.

Such discrimination was found in the UK case Husseinversus Saints Complete House Furniture. In the late 70s a Liverpool furniture store did not employ anybody from a particular residential area as a matter of principle. Due to the high unemployment rate in that area it was feared that the employees’ unemployed friends would visit the furniture store, thereby driving away potential customers. After it was shown that 50 % of the residential area’s inhabitants were black – in comparison to 2 % of the total population of Liverpool – the company was found guilty of indirect racial discrimination.

© Büro zur Umsetzung von Gleichbehandlung e.V. 2018