- FashionUnited |
A decision from the Federal Constitutional Court in Germany in 2017, as well as change in the country's civil laws, demand that the rights of intersex/ non-binary persons have to be respected.
How these changes translate into labor law is unfortunately still causing many doubts and has become the hottest recruiting topic of 2019. Here are some of the most common questions and answers.
What is the ruling about exactly?
In November 2017, the German Federal Constitutional Court (Bundesverfassungsgericht) ruled that civil status law must allow a third gender option, besides "female" or "male". The changes are aimed at all those who can not or do not want to be assigned to any gender within the so-called binary gender system and protect their “right to personality”.
This means, for example, that birth certificates cannot have blank gender entries for intersex and/or nonbinary people and as of mid-2018, they need to provide a third option. The deadline for the Federal Government to improve the civil law accordingly was 31 December 2018. As of 2019 employers and recruiters should comply with the same rule, by not excluding non-binary people and offering gender-neutral job advertisements.
What do the German gender regulations mean for recruiters?
Attention should be paid only to the competencies and personality of the applicants and not to their gender. An appropriately formulated application is, therefore, the most important step to ensure the protection of applicants’ rights. Further, employers should ensure that not only the job title, text and visual appearance of the job ad but also the whole application process be designed in an inclusive manner.
Is the m / w / d abbreviation obligatory?
In Germany, according to the General Equal Treatment Act from 2006, employers are not allowed to discriminate against an applicant on grounds of gender. The gender identities of people are diverse. This must be considered also in recruitment circumstances, job postings included so that no gender is discriminated against.
Many German linguistic and legal sources confirm that neither the decision of the German Federal Constitutional Court nor the General Equal Treatment Act actually set the actual language or formulation requirements for the job ads. The German Federal Constitutional Court’s decision which led to the obligatory introduction of a third gender option onto birth registers and other national documents was not directly aimed at the labor law.
One thing is clear: Employers have to ensure that discrimination does not take place. Therefore, although there is much more to a gender-neutral character of a job ad than its title, it has become good practice for the job positions to include one of the following options, which consider all the different forms of diversity and protect intersex workers:
m / w / a = männlich/weiblich/anders (→ other)
m / w / d = männlich/weiblich/divers (→ miscellaneous and not “drittes Geschlecht” or "third gender" as some believe)
m / w / gn = männlich/weiblich/geschlechtsneutral (→ gender-neutral)
m / w / i = männlich/weiblich/intersexuell
m / w / x or * = (does not mean x-beliebig or x-arbitrary)
According to a study by the Federal Anti-Discrimination Agency in October 2018, only a little over 2% of all job ads in Germany are discriminatory, but approximately 20% were evaluated as not inclusive, which not leaves room for improvement. It can have legal consequences including lawsuits by discriminated candidates, although there is no legal basis for penalizing a company/ recruiter for an “incorrectly” phrased job advertisement. According to the Federal Constitutional Court, negligently formulated job advertisements, which lack the third option or any option at all, can give an opportunity for discriminatory behaviour. It is, however, not an obligation to include it.
What are the tips for inclusive German job titles?
Sweden has introduced a gender-neutral pronoun. The German language can prove tricky when aiming to create a gender-inclusive job title, let alone the job description. Should you wish to ensure your job advertisement title is as inclusive as possible, here are some tips:
- Use generic and/or gender-neutral job titles. Some consider certain titles, like der Recruiter or Manager, to be gender-neutral (referring to all genders while grammatically masculine). While those examples have been a center point of uncountable discussions among linguists, don’t forget you can always use plurals. They are gender-neutral and will help you avoid the tricky gender suffixes. So go for Teamleitung instead of Teamleiterin and Teamleiter, when possible. (This tip also proves valuable when creating gender-inclusive internal communication: „Liebes Team“ will probably be better received than „Liebe Mitarbeiter und Mitarbeiterinnen“
- If you want to use suffixes on the job title but are in doubt on how to do it correctly, go for an asterisk: Manager*. Restrain from using
- It is highly recommended to always follow the title with one of the previously mentioned abbreviations. When using them, restrain from explaining what the last letter of the abbreviation stands for. The underlying idea is to make the reader get the feeling, that gender and classifications in general, do not matter to the company and the recruiter.
Feel free, however, to be specific like this:
“Wir suchen eine/n Einkäufer/in (m/w/d) – Geschlecht, Hautfarbe, alles egal. Hauptsache du passt zu uns.”
Do gender regulations affect also the recruitment process?
Yes, formulating inclusive job titles and job offers is just the start. Recruiters should make sure that the recruitment process is entirely inclusive to applicants’ gender. It is considered good practice for companies to:
- Have reliable documentation of each application process and store it for at least three months from receipt of the rejection by the applicant
- Have detailed and objective selection criteria for applicants
- When possible, use a fixed questionnaire during interviews
- Have at least two representatives of the employer present in the interviews
- Send out neutrally formulated refusal letters
It is important to stress that expressing gender inclusivity should also translate throughout company internal communication, including staff meetings, emails, speeches, dress codes and office design.
Gender inclusiveness - is it merely an uncomfortable legal obligation or can it bring added value?
With no doubt, transparency and diversity are key to employee happiness. Inclusiveness improves morale and motivation, and there is a short way from here to overall company success. The same result comes from innovative solutions, which are a frequent outcome of work on diversified teams comprised of op talent. Although, as explained above, including a third gender option in the job advertisement, is not per se, required, it can be an easy to notice element of a company’s inclusive and open culture. Those are crucial points to be considered by winning employers.
Do gender regulations apply to German companies or all employers operating in the German market?
The new gender regulations which pertain to the inclusion of the intersex people on official documents are a result of a decision of the German Federal Constitutional Court and the acts of the German Federal Government. As such they protect people of German nationality from discrimination.
When considering discriminatory recruitment practices, the General Equal Treatment Act from 2006 should rather be considered. This has been explained in the third question of this article. This Act incorporates four Anti-Discrimination Directives of the EU into German law, and as such protects all people under the jurisdiction of this particular EU country. Although this article analyses the recent changes and requirements of the new German gender regulations, the anti-discrimination directives should be respected and implemented by all employers recruiting within the EU.