In 2010, the Federal Labour Court (Bundesarbeitsgericht, BAG) dealt with the interpretation of the case Coleman v Attridge Law. The case concerned a potentially discriminatory collective labour agreement provision under which parents of sons doing military service received a lower local allowance than parents of children who did not do military or alternative service. At that time, compulsory military service only applied to men, which thus put parents with sons who were unfit for military service and not conscripted, as well as parents of daughters, in a better position. However, the BAG did not consider the regulation to be direct discrimination based on the protected characteristic of gender, as the regulation in question was not linked to the gender of the employee. According to the BAG, the justification for this view was Directive 2000/78/EC, which does not cover discrimination on the grounds of sex, and Directive 2006/54/EC, which requires that the person discriminated against and the person protected must be identical. In addition, according to the BAG, there was no indirect discrimination in this case. |
This is an example of the BAG’s rejection of the concept of associated discrimination. Although the judgment recognised the characteristic of disability in connection with associated discrimination, the BAG did not transfer this principle to other protected characteristics. In addition, the BAG relied on the German translation of Directive 2006/54/EC, whereas the English wording does not contain a possessive reference, i.e. no concrete reference to the person bearing the characteristic. However, the action was successful even without reference to the AGG, as the court found a violation of Article 3 (3) GG.