I was conducting a conflict resolution seminar recently when a very interesting development occurred. Two participants in the seminar were roleplaying a situation proposed by a third participant based on an experience in which she was personally involved. Here is the scenario:
Supervisor A heads a team of consultants doing a multi-year project on a client’s site. Employee B is a member of that team. Last year as year-end approached A informed B that she would have her hours cut in half for the remainder of the year because the project was running out of money in that year’s budget. B was understandably disappointed as it would impact her income, holiday celebrations and gift-giving that year. But she was somewhat satisfied when A promised her that it would not happen to her again.
Now it is again approaching the end of a new year. A informs B that a similar reduction in hours is to be imposed on her. B asks why this time her colleague C doesn’t get the reduction since B had been promised that it wouldn’t happen to her again. A states that he couldn’t do that because C has two small children and B is childless.
In the debriefing of this role-play, it suddenly occurred to me that Germany and the US have diametrically opposite laws dealing with such matters. In the US, an employer is required to ignore all matters not directly relevant to the performance of the work. This is the same nondiscrimination law that forbids even asking a job candidate for age, martial and family status, religion, sexual preference or race (even though there are some visual hints to a few of those factors). The idea is to protect employers from discriminating against a mother of young children, for example, on the grounds that to assume she will be late or miss work from time to time when her children are ill or have special needs requiring their mother at home.
Now suddenly I see a case in Germany where a childless woman suffers a financial penalty because of the preferential treatment which must be given to a mother.
I put my former intern from Passau University, the very clever and curious Alexandra Rupp on the case. She came back with the following:
In Germany there is this sort of social criteria that has to be taken into account when laying off someone due to a bad performance of the company itself and therefore having to lay off a couple of people. One of the social criteria is if the person has family, i.e. has children under the age of being responsible for themselves, a husband/wife who is not working, etc. Other reasons that could give someone an advantage in comparison to other people are the length of service in the company (the longer the better in comparison to other employee), age, some sort of disability, etc.
So in Germany the employer actually must compare employees according to these criteria and therefore lay off the person that is socially the most "secure", i.e. has no family to take care of, is not in an older age etc.
This is written in the "Kündigungsschutzgesetz" (German Labor Protection Law).
Ist einem Arbeitnehmer aus dringenden betrieblichen Erfordernissen im Sinne des Absatzes 2 gekündigt worden, so ist die Kündigung trotzdem sozial ungerechtfertigt, wenn der Arbeitgeber bei der Auswahl des Arbeitnehmers die Dauer der Betriebszugehörigkeit, das Lebensalter, die Unterhaltspflichten und die Schwerbehinderung des Arbeitnehmers nicht oder nicht ausreichend berücksichtigt hat; auf Verlangen des Arbeitnehmers hat der Arbeitgeber dem Arbeitnehmer die Gründe anzugeben, die zu der getroffenen sozialen Auswahl geführt haben.
Well, how about that! THE very things that must be ignored in America, must play a deciding role in Germany. Clearly this points to a basic difference in the cultures of the two countries. Germany sees a social obligation to equalize factors which give people a disadvantage whereby the US insists on treating each person equally on their own merits. I wonder how many countries in the world are similar in that regard to Germany and how many are similar to the United States.
- Herb