The anti-discrimination law from North Rhine-Westphalia’s Black-Green state government is set to undergo adjustments in response to criticism, especially from police unions and associations, on several key points. After a thorough review of expert testimony and discussions with associations, Equality Minister Verena Schäffer (Greens) said that the government had decided to implement a number of changes to the draft. “For the acceptance of the forthcoming law, it is essential to have legal clarity,” Schäffer told the German press agency. “I want the personnel in the state administration — whether in the police, in schools, or in other areas — to work with certainty, confidence, and support.”
Ombudsstelle for Dispute Resolution
A new ombudsperson office will be introduced to mediate disputes with the aim of achieving an out-of-court settlement between the affected individual and the public authority. This had also been requested by many experts. Schäffer noted that experience from Berlin’s anti-discrimination law shows that lawsuits were comparatively rare because an ombudsperson could settle issues before they escalated. The NRW office will be independent and administratively housed within the ministerial structure. There will be no obligation to engage the ombudsperson. There are also 42 anti-discrimination offices across the state to which people can turn. These offices can absorb some cases as well.
From Burden of Proof to Proof of Causation
The proposed provision on the burden of proof will be framed more precisely. Whereas previously hints or indicators that discrimination might be occurring sufficed, now facts must be presented that make discrimination highly probable. “We want to be clear once again: This is not about assumptions or allegations, but the complaint must be substantiated, and facts must be provided,” Schäffer explained.
In particular, the police union (GdP) had protested what it saw as a possible reversal of the burden of proof, arguing that this would foster a blanket culture of distrust toward the police and all public-sector workers. Critics of the law had feared that police decisions or teaching staff decisions could be routinely challenged on discrimination grounds, forcing the state to prove the opposite.
From an Open List to a Closed Catalogue
The state anti-discrimination law is meant to strengthen the legal standing of those who face discrimination by state institutions in NRW. According to the Black-Green draft, it would soon prohibit all state agencies from discriminating against someone on grounds such as antisemitic, anti-Romani or racist attributions, nationality, origin, religion, gender, sexual orientation, disability, chronic illness, or age — for example when submitting requests to an authority.
This previously open-ended catalogue has been expanded and is now closed, so that no additional grounds for discrimination can be added. “We want legal clarity and certainty in how this is applied,” Schäffer emphasized.
Judiciary Excluded from the Law
In principle, the law applies to all public authorities, but it does not cover municipal bodies. Moreover, in cases involving a complaint at a university, university law takes precedence. Courts, prosecutors, the Constitutional Court, and under certain conditions the police are now exempt as well. If the police act on behalf of a public prosecutor in investigative proceedings, such as executing search warrants, that falls outside the anti-discrimination law. The reason is that the police operate for the state in those cases, and there are already checks within the judiciary. However, this exemption does not apply to police deployments for public order enforcement, such as traffic stops, which will fall under the law going forward.
A Decree Will Regulate the Details
The NRW anti-discrimination law, as agreed in the Black-Green coalition agreement, is slated to take effect on October 1. In a decree, Schäffer indicated that procedural details would be laid out, including where complaints are to be submitted and processed, and how long the processing period will take.
