Wednesday, 24. July 2024

Previous slide
Next slide

Sex in German and US Employment Law

No, this is not going to be something naughty now. Don’t get your hopes up. It´s all about the law. More precisely, sex and labor law.

1. Wal-Mart and German labor law

a) The cases that the German courts have decided on this are already a few years old. Back then, in 2005, the Düsseldorf Regional Labor Court ruled that the U.S. retail group Wal-Mart cannot prohibit its employees in Germany from entering into a private romantic relationship with a work colleague. Such a ban would violate Articles 1 and 2 of the German Constitution (Grundgesetz, Basic Law), and more specifically the employees´ general right of personality/privacy (Allgemeines Persönlichkeitsrecht) and human dignity (Menschenwürde).

b) You want to know in more detail? Here you go, I quote from (a transaltion of) the grounds of the decision:

“Even if it cannot be disregarded that in many companies it is not looked upon favorably if a superior enters into a love affair with an employee who is subordinate to him or her, this is ultimately a private matter of the persons involved and does not initially have to interest the employer. Only if tensions arise within the company community as a result of this relationship can the employer intervene. However, it is then not the partnership or the love relationship that is disruptive, but the behavior with which one or the other partner or both or outside third parties interfere with the operational process.” (Düsseldorf Regional Labor Court, decision dated November 14, 2005, file number 10 TaBV 46/05, para. 249).

And in the paragraph before that:

“Whether and with whom an employee has contact is … in principle beyond the scope of the regulatory power of the employer”.

c) Through the ethics directive it has issued, the employer has violated the employee’s right of personality and human dignity to a considerable extent. Therefore, this guideline is invalid due to a violation of the Constitution/Basic Law (Grundgesetz). Thus the LAG (Higher Labor Court) Düsseldorf in 2005.

2. Sex and the Law in 2020

Why do I come to this case right now?

a) Well, I recently had a client who had completed a training to become a coach with an American organization. What kind of training, doesn’t matter now. In any case, she was subsequently approved as a trainer (coach) by this American organization and in turn conducted training courses in Germany. The participants of these trainings then received a certificate issued by the American organization after successful completion of such a course.

b) And now it came as it had to come: My client fell in love with a participant during a training course organized by her, with the result that an intimate relationship developed one and a half years after the end of the course. As a result, the American organization revoked my client’s license. It based this on its own code of ethics, which expressly prohibits course instructors from entering into an intimate relationship with course participants during the course and for up to two years after completion of the course.

c) Was it legally justified to revoke the license?

Applying the principles established by the state labor court in the Wal-Mart employee case, it seems fair to say that this sanction was not lawful. Justification: The ban on having an intimate relationship with a former course participant violates the free development of personality. Both were of age, there was no pressure or abuse, the course was long over, no one minded, etc.

But can the principles of labor law be so readily applied to this instructor/course participant relationship? Is it not rather up to the American organization what internal code of ethics it establishes and imposes on its certified course instructors? …

d) Unfortunately, we do not know how the case would have been decided if it had gone to court. This is because an action before a German court was inadmissible (due to lack of jurisdiction) or at least did not promise any success due to the lack of enforcement possibilities in the USA. And with regard to a lawsuit in the U.S., the American lawyer we engaged told us in no uncertain terms that he saw no chance of success before an American court. According to American understanding, my client’s violation of the Code of Ethics was serious and justifies withdrawal of her license. Period.

3. Law and morals/culture/mentality

I think one can see very nicely from this case that the outcome of legal disputes can sometimes be strongly influenced by mentalities. Legal opinions and convictions are rooted to a considerable extent in what people perceive as right, just, fair and equitable. And this is obviously very different in America and Germany with regard to the topic of sex at work or sex in a business relationship.

4. The Protection of Personal Rights in the Relationship between Germany and the USA

Let’s take a step back from our initial case and think a bit more “globally”: In American law, the protection of the individual and his personality, especially the protection of the weaker party, seems to me to be less pronounced than in our country. That surprises you, since the U.S. is the land of individualists, of lonesome cowboys, of convinced gun owners who prefer to defend themselves rather than rely on state order? – On the one hand, yes, but on the other hand:

a) Americans tend to think: If you want to have something to say, go into business for yourself. As an employee, you have to go along with what the boss says. While in Germany we have very extensive protection against dismissal, at least in companies with more than ten employees, in America the principle of hire and fire still applies, i.e. dismissal at will, unless special unfairness grounds (e.g. discrimination) make the dismissal invalid. – Don’t believe me? Here, look it up or google for the keyword “Employment at Will”.

b) Or in tenancy law: If you want to live decently, buy a house. It is not by chance that the landlord in English is called “Landlord”. An expression that very clearly expresses who is in charge in the tenancy relationship. There is no comparison with the almost exuberant tenant protection regulations in German law.

c) Or also in data protection: In the USA, the collection, forwarding and analysis of data is far more widespread than in our country, and not just at Facebook, Google, Amazon and all the others. Only recently, therefore, the ECJ ruled on the European-American Privacy Shield agreement that European data may no longer be transferred to the U.S. without a thorough examination, as the level of protection there is not adequate compared to our GDPR (General Data Protection Regulation).

d) And why are there so many more paparazzi in the USA than here? Because lawsuits for violation of the general right of personality through secretly taken photos from private or even intimate areas are much more difficult in the U.S. than in Germany, where § 22 KUG and the general right of personality (Art. 1 and 2 GG) extensively protect the right to one’s own image and prohibit unauthorized publication. …

e) Why am I telling all this here? Well, I am not interested in the details, but rather in the awareness of intercultural differences and how they affect the legal assessment of disputes. In our initial case and, drifting from it, far beyond.

Dr. Wolfgang Gottwald
Attorney at Law

Attorney at Law

Leopoldstraße 51
80802 München

Tel.: 089/383 293-10
Fax: 089/383 293-13