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Germany: Reasonable adjustment as a discrimination dimension in law

November 26th 2018

In November 2018, a legal expertise opinion, commissioned by FADA, was released on reasonable accommodation/adjustments. The author of the opinion argues that international and EU law oblige Germany to explicitly include reasonable accommodation in the General Equal Treatment Act, and he recommends to do so for all grounds of discrimination.

Reasonable adjustment schemes serve to prevent the discrimination against persons with disabilities. The UN Convention on the Rights of Persons with Disabilities and European law oblige the countries, their legal systems, societies, public institutions and private entities to put these arrangements into place. This obligation demonstrates that the non-discrimination of persons with disabilities is not limited to negative obligations to refrain, but establishes concrete obligations to act.

German Law

As far as the German law is concerned, the constitution prohibits the discrimination on grounds of disability (Art. 3 III 2 Basic Law). This obligation applies not only in the relations between the individual and the State, but also has a "third party effect" - i.e. it also applies between private persons. The UN Convention on the Rights of Persons with Disabilities is a part of national law and, as such, has immediate legal effect. While this must be stipulated in concrete detail by the parties to the Convention, all concrete specifications must be measured against the UN Convention which is why they must be directly observed when interpreting German law.

German law does not know the concept of reasonable accommodation: It strives to fully satisfy the UN Convention. However, it still falls short of its requirements, since the protection of persons with a disability remains limited to "severely disabled persons" and special housing, work and education facilities continue to exist. Ultimately, the healthcare for persons with disabilities is not sufficient to afford them full social participation.

While the concept of "reasonable accommodation" stems from the law on the equal treatment of persons with a disability, it may not be confined to it. It provides an adequate explanation to define the obligations to act that are necessary to protect persons from discrimination on grounds of sex, faith or age. In this realm, it fulfils the same purpose, which is to define the terms and conditions required for the social
participation of persons potentially facing discrimination and to substantiate specific imperatives to act.

Suggestion to incorporate ’’reasonable accommodation’’ in German Law

Consequently, "reasonable accommodation" is a fundamental concept of the general equal treatment law. Therefore, it should also be incorporated as a fundamental concept into the General Equal Treatment Act (AGG) and, implicitly, secure every person protected under section 1 AGG the legal entitlement to reasonable accommodation.

The proposed wording reads: "Every person protected under section 1 AGG shall have a legal entitlement to reasonable accommodation. This term means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms."

  • Read the full text (in German) here
  • English Fact sheet can be foundhere.