The International Convention on the Elimination of All Forms of Racial Discrimination defines racist discrimination "as any distinction, exclusion, restriction or preference based on "race", colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life."

The consequences are dire: Racism prevents the equal participation of all persons in a society, it misrepresents some people as “inferior” and can lead to psychological and physical violence. In extreme cases, it is used as a justification for genocide or mass killings.

However, even subtle forms of racism are discriminatory and toxic for a society. This includes, for instance, supposedly well-intentioned comments such as “your German is so good”. People who are constantly reminded that they “do not belong” experience this as humiliating, frustrating and paralysing. Such exclusions are not always intentional, but can also be the result of ignorance or thoughtlessness. However, this does not make them any less distressing or discriminatory. What matters, therefore, is to become aware of them and act accordingly.

While German law differentiates between racist and other forms of discrimination based on descent, the penalties for racist discrimination and discrimination on grounds of ethnic origin remain the same. There are many forms of racism. Distinctions are made, for instance, between anti-Black, anti-Muslim or anti-Asian racism.

According to current scientific knowledge, however, there is no such thing as “human races”. Any categorisation into “races” based on supposed or actual traits such as skin colour or origin and the attribution of distinct and unequally valued traits and features are arbitrary and primarily a means of disparaging and excluding people.

Ethnic origin means that a person is considered to be part of a group of persons that form a, for instance, social, cultural or historic unit or are connected by a sense of community. These include, for instance, the Friesian, Sorbian or Tyrolean ethnic groups or the Romnija and Roma.

Just as with “race”, “ethnic origin” is a concept, not a fact. It tends to ascribe a greater set of shared traits and characteristics to a given group than they usually have. Roma and Romnija are anything but a homogeneous group but fall into many different groups that are diverse and distinct in many respects. Nor can a person’s nationality, religion or belief necessarily be inferred from their ethnic origin.

Many people experience racist discrimination so frequently that it is referred to as everyday racism. Racism can occur throughout the entire spectrum of social life. Time and again, our counselling centre is contacted by persons who were turned down because of physical features such as the colour of their skin, for instance, when looking for a flat. Or they were called racist names at school, yet the school management was not taking it seriously. Cases at work range all the way from name-calling to missing out on career opportunities to constant rejections of applications.

Commissioned by the Federal Anti-Discrimination Agency, the 2017 study “Diskriminierungserfahrungen in Deutschland. Ergebnisse einer Repräsentativ- und einer Betroffenenbefragung” (Discrimination Experiences in Germany. Results of a representative survey and a survey of affected persons, only available in German) shows that racist discrimination experiences pervade all spheres of life. Particularly persons of Middle Eastern, North African or Turkish descent experience discrimination in education, the workplace and on the housing market.

Institutional racism refers to forms of discrimination, exclusion or disparagement that emanate from a society’s institution, such as the police, public authorities or schools. It is not rooted in the prejudices or derogatory attitudes of the acting individuals. Rather, it is the interpretation or application of rules, regulations, norms, routines or ingrained practices that lead to the direct or indirect discrimination of certain population groups. Institutional racism is usually harder to identify than individual-level forms such as racist slurs or assaults and calls for other approaches to fighting it.

By contrast, structural racism cannot be traced down to individual institutions. Instead, it is about historically and socially evolved power relations that are deeply rooted in a society’s structures, discourses or imagery. Such structures can also prevent certain population groups such as those with a migrant background or people of colour from being represented in key policy-making, administrative or economic positions proportionately to their share in the overall population.

Discrimination on grounds of ethnic origin or for racist reasons is prohibited. In addition, the General Equal Treatment Act (German abbreviation: AGG) protects persons who are discriminated against on grounds of gender, religion or belief, disability, age or sexual identity. Importantly, the Act does not only cover employment and occupation, and aspects of civil law. It also covers all contracts that regulate the access to goods and services. This also includes, for example, the access to residential space. A landlord may not, for instance, state that they refuse to rent to “Roma” or “Turks”.

In addition to the principle of equal treatment, the AGG also explicitly provides for the promotion of certain groups of persons, known as “positive action”. For instance, companies can offer further training measures specifically to persons with a migrant background.

The AGG’s scope of protection does not cover government action, in other words, it does not regulate the relation between citizens and the State. This can make it more difficult for those affected to assert their rights for protection from discrimination by and from the State. A major contribution to addressing this is made, for instance, by Berlin’s anti-discrimination law (German: Landesantidiskriminierungsgesetz - LADG) that became effective in 2020. The LADG provides for special legal protection against discrimination from public authorities of the Land of Berlin. Thanks to this law, persons affected can assert their rights in case of, inter alia, discrimination by police officers, administrative staff or teachers.

State-run bodies are bound by the prohibition of discrimination laid down in the Basic Law (German: Grundgesetz - GG). Article 3 III of the Basic Law forbids that any person be disfavoured because of their parentage, language, homeland and origin or because of their race. This means that no-one who turns to a public authority may suffer any legal disadvantages as a result of their language, parentage or origin. The same applies if the authority acts on its own initiative. Police checks on the sole ground of skin colour (racial profiling) are unconstitutional and prohibited. Many UN and EU institutions also consider this practice an infringement of human rights. The Deutsches Institut für Menschenrechte (German Institute for Human Rights) sees racial profiling as a violation of the Basic Law's ban on discrimination and right to informational self-determination.

Day-care centres, schools and institutes of higher education are for the most part state-run. Racist behaviour by teachers and educators is prohibited, parentage and origin may not play a role in interpersonal interaction. Educational institutions are required to intervene if pupils or students engage in racist behaviour against their peers. The constitutional prohibition of discrimination requires the institutions to put a stop to such behaviour and intervene to protect those affected.

Individual Federal Länder have included an explicit discrimination ban in their Land school laws. Brandenburg’s school law, for instance, stipulates that no pupil may be favoured or disfavoured on racist grounds, because of their nationality, language, religious or philosophical convictions.

Pupils, students and teachers at private educational institutions are all equally protected by the General Equal Treatment Act (German abbreviation: AGG). At state-run institutions, only staff can invoke the AGG if the principle of equal treatment is breached by their employer or colleagues.

Racial profiling is the checking of persons solely on the basis of their physical appearance rather than on the basis of suspicion. Skin colour or other ethnic or religious characteristics are taken as a cause for checks by the police, by immigration or customs officers or also by store detectives.

Identity checks which are carried out in the absence of (reasonable) suspicion without objective grounds on the basis of physical appearance are discriminating because illegal conduct is assumed on ethnic grounds or due to religious symbols. Thus, in particular non-white people are under general suspicion.

The General Act on Equal Treatment (German abbreviation: AGG) protects anybody against discrimination on the grounds of ethnic origin or racial prejudice. However, protection by the AGG only covers certain areas of life. The AGG does not offer protection against discrimination by government agencies.

However, identity checks without reasonable cause relating to characteristics of discrimination violate the principle of non-discrimination pursuant to Article 3 Para. 3 of the Basic Law. Furthermore, European and international law in force prohibit government acts of discrimination (e.g. Article 14 of the European Convention on Human Rights or the International Convention on the Elimination of All Forms of Racial Discrimination).

The Berlin Anti-Discrimination Act has applied at the Berlin Land level since June 2020. As opposed to the AGG, the Berlin Anti-Discrimination Act very concretely relates to discrimination by (Berlin) public authorities and it provides for a right to financial compensation for affected persons in case of a violation.

In case of discriminating identity checks by public authorities, courts have to examine whether these checks can, for instance, be substantiated with aspects concerning the public interest. In practice, racial profiling can hardly be justified for identity checks. 

In April 2016, the Higher Administrative Court of Rhineland-Palatinate had to rule on a case where Federal Police officers had checked the identity of a black German family on a regional train. As for the questioning and the identity checks, the police officers referred to Section 22 (1a) of the Act on the Federal Police. Pursuant to that, the Federal Police may stop, question and check the identity of persons on certain trains to prevent or stop the illegal entry into the federal territory.

The court ruled that the police measure was unlawful. The skin colour of the persons checked had at least been one criterion (among others) leading to the decision to perform an identity check. The infringement of the prohibition of discrimination pursuant to Article 3 Para. 3 of the Basic Law had not been justified by a legitimate purpose of public interest. For a selection decision during a check to be based on “race” was serious to the point that it could not be justified with the purpose of preventing illegal entry into a territory (decision of 21 April 2016, reference number: 7 A 11108/14).

In a different case, on which the Higher Administrative Court of Northrhine-Westphalia had to rule in 2018, a black German was checked at the central station by two Federal Police officers. The police officers based their check on Section 23 (1) No. 1 of the Act on the Federal Police, pursuant to which the Federal Police is allowed to perform identity checks to avert danger. They justified the performed check by stating, among other things, that most thefts at the train station and in trains were carried out by men from the Maghreb states and/or by North African nationals. Moreover, they argued that it was predominantly “North and Black African perpetrators” who dealt with narcotic drugs at the central station.

The court ruled that the check was not justified because the allegations made by the police officers could not be confirmed by statistical evidence. Furthermore, the court pointed out that a measure based on grounds of discrimination had a stigmatising effect and that, for this reason, there were also increased requirements with respect to a justification (decision of 7 August 2018, reference number: 5 A 294/16).

If you are subject to racial profiling you can contact the Federal Anti-Discrimination Agency or a counselling centre in your vicinity.

In addition, affected persons are advised to note down the name and the police station of the officers on duty as well as all circumstances of the incident as precisely as possible and, if necessary, to address potential witnesses in order to be able to take action against the measure afterwards, for instance by making a disciplinary complaint.

Judicial review can be sought by way of action requesting a declaration that the expired administrative act was unlawful. In that context, courts retroactively look into whether a police check was against the law. If a breach of official duty was determined by the court, affected persons may also, in further civil proceedings, potentially claim damages.

In Rhineland-Palatinate, Schleswig-Holstein and in Baden-Württemberg, you can also ask an independent complaints body to review the accusations of racial profiling.

The Federal Anti-Discrimination Agency campaigns for an independent federal complaints body that people can contact in case of racial profiling by Federal Police officers.

The Federal Anti-Discrimination Agency counsels and assists people who feel discriminated against on the grounds of ethnic origin, gender, religion or belief, disability, age or sexual orientation. The General Act on Equal Treatment (German abbreviation: AGG) provides the basis for the counselling. However, the Act cannot be applied to cases of racial profiling by government agencies.

Nonetheless, the Federal Anti-Discrimination Agency is in the position to inform affected persons of their rights. Moreover, the Federal Anti-Discrimination Agency can act as a mediator, for instance, by asking the Federal Police for a statement or by referring people to specialist units.