Discrimination - Employers bear the responsibility for equal treatment also in relation to third parties
Protecting employees from discrimination is not solely limited to internal company procedures. Employers are also obliged to actively protect their employees against discrimination by third parties, such as customers or business partners.
A decision by a labour court has clarified that even a discriminatory request from a customer may not be uncritically implemented. The state labour court of Baden-Wuerttemberg, in its ruling of 27.9.2023 (case reference: 4 Sa 21/23) decided on a case where an employer employed a female architect in sales. A certain prospective client was assigned to her via the intra-company allocation system. After the female client made it known that she did not want to be advised by a woman, the client was assigned to the regional manager. As a consequence, the female architect missed out on the commission of €30,000. The female client subsequently explained that after the telephone call she had not had a good feeling and, therefore, preferred to have a different contact person. She regretted her choice of words because, after all, she herself was a woman. The employee concerned sued for damages because of gender-based discrimination. The employer argued in his defence that the actions that were taken were in the interests of the female architect in order to save her from a further unpleasant situation.
The state court agreed in principle with the female employee. An employer may not simply yield to a client who does not wish to be advised by a woman. In fact, he has an obligation to shield his female employee and, where appropriate, engage with the female client and enlighten her. The mere fact that the client did not have a “good feeling” does not justify different treatment. It must have been obvious to the employer that this was a case of inadmissible gender-based discrimination. By making a reallocation without any comment he was effectively participating in the discrimination. If an employer does not adequately carry out his duty to protect his female employee, then withdrawing a potential female client from the female employee’s area of responsibility could constitute direct discrimination because of gender. As a result, this would form the basis for a compensation claim whereby the court considered an amount of €1,500 to be sufficient.
