Discrimination based on language (i.e. proficiency or accent) has so far been mostly reviewed by courts as a form of “ethnic origin”.

However, many international human rights instruments have created “language” as a separate category of discrimination in their articles of equal treatment (i.e. the Universal Declaration of Human Rights (Article 2), the Charter of the United Nations (Article 1) and the European Convention on Human Rights (Article 14)).

In the past, courts have already made multiple decisions on cases of unequal treatment based on language. Since this form of exclusion does not always occur in the context of ethnicity and the attributes ascribed to it, it is recommended that “language” should be incorporated as a reason listed in the catalogue of grounds of discrimination in § 1 AGG.

In the judgement from January 26th 2010 – 25 Ca 282/09  (in German), the Labor Court of Hamburg sentenced a postal company to pay for damages caused by indirect discrimination based on ethnic origin. The plaintiff, born in the Ivory Coast, had applied as a postman for a vacancy notice in which a command of the German language was required, both spoken and written. In the initial telephone call – which was typical for such applications – one of the defendant’s employees had come to the conclusion that the plaintiff was unable to express himself clearly and attractively in German.

As a result, the plaintiff received a rejection. The Labour Court considered the approach taken by the company to be indirect discrimination based on ethnic origin.

In the opinion of the Court, the procedure was neither suitable nor necessary for determining the presumed knowledge of German for a postman. Firstly, a short telephone call is insufficient for determining the language skills of the applicant. Secondly, the Court determined that the language selection criterion (over the phone) used by the defendant for the intended activity was inappropriate and excessive. For an employment as a postman, only knowledge of the German language that is sufficient enough for communicating with customers, colleagues, and the employer is required.