Disability Law: Germany

Written in 1994, Section 3, Paragraph 3, Sentence 2 of the German Constitution (Grundgesetz) forbids the discrimination of people based on their disability. The concept of disability in Germany, however, is not uniformly regulated in legal documents. The most comprehensive definition can be found in Section 2 of the Sozialgesetzbuch IX-Rehabilitation und Teilhabe behinderter Menschen (SGB IX; Social Security Code IX-Rehabilitation and Participation of Disabled People, in effect since July 1, 2001) and is defined in an identical manner in Section 3 of the Behindertengleichstellungsgesetz (BGG; Disability and Equality Law, in effect since May 1, 2001):

The German laws provide various instruments to prevent the discrimination of people with disabilities. Section 81, Paragraph 2 of the SGB IX, for example, forbids the discrimination against severely disabled people (Schwerbehinderte) at the workplace. Employers may not discriminate against people with disabilities in hiring, promotion, or termination practices. If an employee makes a believable argument that discrimination has occurred, the employer must use objective reasons to prove that the unequal treatment is or is not justified. Individuals who have an officially recognized disability can be terminated only upon approval of the Integrationsamt (Integration Office). Larger businesses are required to employ a fixed quota of severely disabled people or pay the state a specific lump-sum penalty. The regional income from this so-called Ausgleichsabgabe (equalization tax) is used to help support the gainful employment of the severely disabled.

The Behindertengleichstellungsgesetz (Disability and Equality Law) of the Federal Republic of Germany and the corresponding equality laws of individual states prohibit direct and indirect discrimination within state institutions. Official information must also be available for people with sensory disabilities. Hearing-impaired and speech-impaired individuals have the right to use sign language and communication help. The regulations also include guidelines for barrierfree new construction, public streets, paths, and public transportation and for equality in primary and secondary education. In addition, disability associations have the right to negotiate and bargain with economic enterprises for their services and products. The enterprises are not, however, obliged to come to a consensual, contractual agreement (a so-called Zielvereinbarung [target agreement]).

[Page 451]As yet, there has been no explicit legal sanction regarding the exclusion or discrimination against disabled people with respect to the purchase and use of economic goods and services. When private insurance companies, landlords, tour operators, airlines, restaurants, or other private businesses refuse disabled people as customers, individuals may claim illegal discrimination on a case-by-case basis. So far in such situations, however, disabled people have had to prove that they have been discriminated against. As of the beginning of 2004, a comprehensive civil antidiscrimination law had not yet been adopted. Access to medical, occupational, and social rehabilitation; nursing programs; pension payments; and social security benefits are regulated in various laws (e.g., Sozialgesetzbücher [Social Security Codes] III, V to IX, XI, as well as the Bundessozialhilfegesetz [Federal Public Welfare Law] and the Grundsicherungsgesetz [Basic Income Law]). The decision as to which benefit applies in individual instances is delegated in the German social law to various öffentlich-rechtliche Körperschaften (Official Statutory Corporations), semi-national organizations like the Gesetzliche Krankenkassen (Statutory Health Insurance Companies). The service provision is provided through social welfare organizations and private companies, for example, private nursing services, and nursing homes with ecclesiastic or associational sponsorship. According to the law, national social security only covers those who are gainfully employed or who have been in the past. Based on this fact, many disabled people are dependent instead on public welfare through the Bundessozialhilfegesetz and Grundsicherungsgesetz. These forms of benefits serve, above all, to protect an individual at the minimum income level necessary for survival. They only cover essential rehabilitation and integration assistance and only accept recipients who are indigent, people who have no or only a meager source of income, or who possess only a few assets.

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