Martin Luther University Halle-Wittenberg

What is discrimination?

What is discrimination?

For the purpose of the General Equal Treatment Act (AGG)   , discrimination is understood by German law as a disadvantage faced by people on the grounds of a (protected) characteristic without factual justification.

Discrimination can be mediate or immediate. The characteristic can be actual (fact) or attributed. It constitutes an essential element of the personality, is difficult to alter or cannot be changed and is integral part of social power structures. Discrimination cannot be justified in objective terms – it neither involves a compensation for disadvantage or a positive measure, nor a fundamental and significant requirement to perform an activity.

What forms of discrimination exist?

Levels of discrimination

Discriminations can take place at various levels. For example:

societal level (ideology)Ideological ideas, labels and images about normativity and  deviations; representations; stereotypes; biases conveyed through media and in everyday conversations.
structural level (institutionalization)Discriminations as a result of acting of organizations, businesses or administrations on the basis of laws, regulations, guidelines, routines or corporate culture.
individual level (interactions)One person discriminates another person for individual reasons
internalized levelA person is self-deprecating due to discrimination ground (e.g. self doubt)

Discrimination grounds

Discriminations differ with regard to characteristics to which they relate. At MLU, discriminations on the basis of the following protected characteristics – also stated in the General Equal Treatment Act (AGG)    – are not allowed:

  • ethnic background
  • gender
  • religion or ideology
  • disabilities / special needs
  • age
  • sexual orientation

These characteristics relate to essential elements of one's personality and cannot be changed arbitrarily. Depending on the feature discriminations refer to, they can be differentiated terminologically. For example:

  • A man is discriminated, because he is a Jew. (= anti semitism)
  • A woman is discriminated, because she is a woman. (= sexism)
  • A man is discriminated, because he is gay. (= homophobia)
  • A woman is discriminated, because she sits in a wheelchair. (= ableism)

It is irrelevant for a discrimination, if the characteristic is actual or just attributed. Therefore, it is also considered a racist discrimination, when a (discriminating) person assumes a so-called “migrant background”. When discriminations are based on a combination of characteristics, we are talking about multiple discrimination. For example:

  • A female scientist is rejected for a job subsequent to her PhD, because it is assumed, that women of her age should have an urgent desire to have children and they have to be alert to a soon-to-be long-term withdrawal due to parental leave. (= discrimination on the basis of the characteristics gender and age)

Mediate and immediate discrimination

In addition, it can be distinguished between mediate and immediate discrimination. Mediate discrimination occurs, when a person is treated less favorably than another person. Short: same is treated different. For example:

  • A foreign student conducts a presentation together with a German fellow student. The fellow student gets a much better grade than the foreign student does, even though their performances were equal.

Immediate discrimination occurs, if requirements seem to be neutral, but lead to a less favorably treatment of a particular group of people in practice. Short: Different (according to dissimilar conditions) is treated same. For example:

  • A student cannot write as quick as her fellow students due to a disability, but has to take written exams within the same amount of time than everyone else.

At MLU mediate as well as immediate discriminations are not permitted.

Can every disadvantage be understood as discrimination?

According to the AGG, disadvantages can also be justified in an objective way. In this case they cannot be understood as discrimination. Therefore, not every disadvantage is a discrimination.

An objective justification exists, when there is a support measure in compensation with a current disadvantage (“positive measure”) or the criteria for an unequal treatment for carrying-out a job is a significant and crucial requirement. For example:

  • A counseling center for migrants searches in a job advertisement for advisory service for a person of a certain ethnic background, because it can be a significant requirement to develop important mutual trust for the consultation.
  • A man without disability applies for a job at the university. Even though he is as qualified as his severely disabled competitor is, he does not get the position. This is not a discrimination.

Even though every disadvantage, insult or hurtful act can be unpleasant for the person concerned, not every conflict also constitutes a discrimination. Discrimination always refers to attributes worth protecting that are an essential element of the personality, not arbitrarily modifiable and an integral part of social power structures. For example:

  • A student says about one of her fellow students: ”People, who listen to Heavy Metal music are anyway too stupid to study”. That is insulting, can hurt the student and can lead to an argument between the two of them, but music taste is not a protective feature and the statement of the student not a discrimination.

What is the relation between discrimination and power structures?

Discrimination is based on the claim of differences between groups of people, which are used to justify disadvantageous unequal treatment. It is not about occasional individual opinions, fears or aversions, but about general remedies and opportunities of participation within a society that is not equally open towards all of its members. Even though the differences, which discrimination maintains, do not have to be real, the impact of the discrimination on the person concerned is always real.

By means of discrimination boundaries between majority society and minorities, between “normal” and “different” are drawn and negative characteristics sweepingly attributed to certain groups of people, which are supposed to justify, why they are taking social disadvantageous positions. The individual situation is ignored and the individual only seen as a representative of a supposedly uniform social group.

Short: The homogeneity of a group is alleged (“you are all the same”), whereas one can feel belonging to a group (“we”), but also perceive herself/himself as an individual (“I”). Both groups are opposed in a polarizing way (“they are different than us”) and classified hierarchically (“we have more rights than the others”). Ultimately, this hierarchy is backed-up by alleged characteristics of the supposedly homogeneous group (“we must have more rights than the others, because they all have characteristic xy”). As a result, the own group is revalued, the presumed different group devalued and the maintained otherness used as a justification for unequal treatment. Therefore, discrimination does not seem unfair, but legitimate. Commonly the attribution of presumed natural and unchangeable characteristics is utilized.

For example:

  • "Same sex relationships are unnatural, because they can't beget children, that's why they shouldn't be able to adopt or bring up children as well."
  • "Women have different brains than men, that's why they shouldn't become scientists, but rather take care of child education."

Discriminations are not only occasional insults, but also a matter of existential themes. They can be so extensive that homogeneous maintained groups of people are deprived of their humanity. Besides hate crime of individual perpetrators also bigger institutions can perform discriminations. That also happened repeatedly throughout the history of the German society. E.g., discriminations were an element of the enslavement of people with African background within colonization or the murder of Jewish people or people with disabilities during National Socialism.