Authors: Prof. Dr. Constanze Janda and Mathieu Wagner, German University of Administrative Sciences Speyer, commissioned by the Federal Anti-Discrimination Agency (FADA) Year of publication: 2022

Brief overview

The legal study examines discrimination and risks of discrimination on grounds of young age under civil law, i.e. the scope covered by Part 3 of the General Act on Equal Treatment (AGG), which deals with the access to and supply of goods and services. The legal study does not only list the rights of the child, but also examines the respective norms and their legal application by the courts regarding anti-discrimination law, identifies gaps in protection and provides recommendations as to how these gaps can be closed.

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Main results

Discrimination on grounds of “young age” has so far not been systematically examined. This indicates an insufficient perception of this type of experienced discrimination.

Protection of children and parents from discrimination

• In international law

International law guarantees children’s and families’ rights in a variety of ways. It does not focus, however, on the discrimination of children under civil law. It guarantees the rights of the child and the family as a source of freedom from interference with the organisation of family life and emphasises the state’s responsibility for adequate living conditions. The International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention on the Rights of the Child (CRC) contain a legislative mandate to prevent discrimination in childhood. This would enable children to freely develop their personality and to have their rights and freedoms protected as required by the UN CRC and would safeguard their right to development enshrined in Article 27 of the UN CRC. International law, however, does not provide for any requirements regarding parenthood.

• In EU law

Union law hardly has an effect on the rights of children and adolescents. It provides for less protection against discrimination on grounds of age than it does for protection against racist or ethnically motivated and gender-based discrimination. “Age” as a category includes young age but is only protected with regard to access to employment. The Member States may, however, establish other discrimination categories in their national law or expand their factual scope of application.

• In the Basic Law for the Federal Republic of Germany

The Basic Law does not set out a binding mandate to protect children, adolescents and parents against discrimination under civil law either. Related provisions would be constitutionally permissible, though not mandatorily required, and can be justified on the grounds that Article 6 (1) of the Basic Law stipulates obligations for government to protect families.

• In the General Act on Equal Treatment (AGG)

Discrimination on grounds of age under civil law is already not permissible under the current provisions of the General Act on Equal Treatment (AGG). If parents are discriminated against due to the fact that they have children, this is a case of discrimination by association on grounds of age.

Discrimination of children and on grounds of children under civil law

• Access to housing, restaurants, hotels and associations

Discrimination of and on grounds of children regarding access to housing, restaurants and accommodation facilities is usually linked to the age of children or adolescents. Certain life and development stages are thus stereotypically ascribed negative qualities – in the case of toddlers and infants, this relates to making loud and uncontrolled noises and having an increased urge to move when playing, in the case of young people, it relates to “adolescent behaviour”. Such stereotypes, however, do not create a factual justification – not even against the backdrop of entrepreneurial freedom, which generally allows providers of goods and services to define their target groups themselves.

By contrast, the law of association offers less protection against discrimination. Associations are only required to admit new members if they are in a monopolistic position and if the person discriminated against has a significant interest in acquiring membership.

• Access to child day care

Childcare facilities are not only significant for children’s development; the availability of childcare places also affects parents’ ability to reconcile work and care giver responsibilities. The conclusion of a care agreement may therefore only be refused in narrowly defined exceptional cases. The only permissible criterion in this regard is where discrimination is based on age with a view to the child-and-staff ratio. The General Act on Equal Treatment can generally also be applied to childminding settings if these are not designed in such familial way as to be assigned to the providers’ sphere of privacy. Complaint procedures in childcare settings also need to be designed in a non-discriminatory manner.

• Children’s autonomy

The requirement to respect children’s autonomy also relates to their treatment in case of illness. There is no definite answer to whether involving parents in the decision-making is unfavourable or favourable even if this contradicts a minor’s express will. The associated legal issues are to be considered a matter of family law rather than anti-discrimination law.

• Special price arrangements for children/families

Offering special rates for children and students or families is socially adequate. Preferential treatment on grounds of age through price discounts or other advantages in bulk business constitutes a “classic case” of Section 20 Subsection 1 Sentence 1 No 3 of the AGG.

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Options for action

1. The term “age” in Section 1 of the AGG should be replaced by the term “chronological age” or a wording such as “young and old age”.  Such clarification would make discrimination against younger people visible.
2. Expanding the grounds for discrimination set out in Section 1 of the AGG to include “parenthood” or “family status” is helpful but would mainly affect labour law. It should be designed in a way that protects all family constellations regardless of a person’s sexual identity and the family-law status of the parents.
3. Apart from explicitly regulating intersectional discrimination, such as in Section 4 of the AGG, it is necessary to clarify in Section 3 of the AGG that discrimination by association also falls within the scope of the AGG.
4. Regulating claims to ownership in cases of discrimination in the context of contracts for the benefit of third parties would be desirable.

Including the protection of children, adolescents and parents against discrimination in the AGG would not only meet the requirements of the UN CRC but also provide reliability and legal certainty, and additionally would lead the way for a child-friendly society.

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