Termination without notice due to racist insults – no encroachment on freedom of opinion

The German Federal Constitutional Court (FCC) recently had to decide in the context of a constitutional complaint (ruling of November 2, 2020, Ref.: 1 BvR 2727/19) whether an extraordinary dismissal as a result of a racist expression constitutes an unjustified encroachment on the freedom of opinion. Thereupon a heated discussion erupted within the legal community and on social networks; less because of the FCC’s decision, but more because of a “comment” by the lawyer Dr. Rüdiger Zuck published in the labor law journal “NZA” (Neue Zeitschrift für Arbeitsrecht), which used racist stereotypes to an alarming degree and sharply criticized the court’s decision.

Insults in the works council meeting

In 2017 the complainant had uttered the words “Ugha, Ugha!” to a dark-skinned colleague during a heated debate at a works council meeting whereupon his colleague called him a “hustler”. The complainant, who had already been given a relevant warning in the past, received an immediate extraordinary notice of dismissal, whereupon he filed a dismissal protection suit. The labor courts deemed the termination to be lawful and declared the employment contract to be terminated.

In its decision, the Cologne Higher Labor Court (verdict of June 6, 2019, Ref.: 4 Sa 18/19) interpreted the meaning of the statements made by the complainant with an impressive amount of argumentation and subjected the matter to an extensive hearing of evidence. The court also consulted the four levels of communication according to Schulz von Thun and came to the conclusion: on all four levels it has not just been a simple crude insult to his colleague, but an inhuman and racist insult. The complainant’s argument that it was not meant in a racist way, that “monkey” was nothing other than “pig” and that the German Soccer Star Oliver Kahn had also been pelted with bananas did not change the outcome. The complainant remained unregenerated throughout the proceedings and the Higher Labor Court came to the conclusion that the extraordinary dismissal of the plaintiff, who had already received relevant warnings, was lawful and had ended the employment contract. A less restrictive but equally effective means had not been evident in view of such a serious breach of contractual duty and the plaintiffs intransigence; a relevant warning had also preceded the extraordinary dismissal.

The non-acceptance order of the FCC

After a brief detour to the Federal Labor Court, the complainant eventually felt that his fundamental right to freedom of opinion under Article 5 (1) of the German Constitution had been violated by the labor court verdicts and filed a constitutional complaint. In his opinion the labor courts had not weighed his fundamental right to freedom of opinion against the employer’s interest in terminating his employment and, moreover, he could not be accused of having a racist attitude.

The FCC did not accept the constitutional complaint against the labor court verdicts for decision for lack of admissibility. According to the Senate the decisions of the labor courts were not constitutionally objectionable. The constitutional complaint would also have been unfounded, according to the judges in Karlsruhe.

The courts of first instance had not misunderstood the values arising from Article 1 (1) of the German Constitution (human dignity), Article 5 (1) of the German Constitution (freedom of opinion) and Article 3 (3) sentence 1 of the German Constitution (prohibition of discrimination) and thus the complainant’s fundamental rights were not violated by their decisions. The encroachment on freedom of opinion by the decisions of the labor court was justified. The freedom of opinion takes a back seat if inhumane statements affect human dignity or constitute formal insults or defamatory criticism. The labor courts did not fail to recognize this when applying secs. 104, 75 (1) Works Council Constitution Act and secs. 1, 7, 12 General Equal Treatment Act, in which the constitutional values of the inviolability of human dignity and the prohibition of discrimination are reflected. The labor courts had given detailed reasons that and why it is a matter of an inhuman statement which affects human dignity.

The specific situation in which a person with dark skin color was directly addressed with imitated monkey sounds was correctly regarded as significant by the labor courts. The conclusion of the courts was not to be objected to that due to the connection to a characteristic frowned upon according to sec. 1 General Equal Treatment Act the expression was not only a rough insult, but fundamentally degrading. Also the overall assessment demanded in the context of the extraordinary dismissal in accordance with sec. 626 German Civil Code was constitutionally not to be objected to. As an aside the Senate also expressly emphasized with reference to sec. 3 (3) General Equal Treatment Act, sec. 12 (3) General Equal Treatment Act and sec. 75 (1) Works Council Constitution Act that employers are obligated to protect their personnel from any racist hostility. 

There´s no law against saying that… ?

In the end it might not be a surprising decision by the FCC, but a correct one. Possibly the only surprise is that the non-acceptance order made it into the official press releases of the FCC. 

We do not want to go further into the article by Dr. Zuck here – not least in order to not reproduce the racist stereotypes used within. In the meantime, the publishing company has reacted, apologized and “distanced” itself from racism (and removed the article at least from online access). Which is good and correct in the result. The content of the article cannot be sugarcoated or justified from any point of view. But we must not forget one thing: All this does not solve the fundamental problem. And the fundamental problem is that racism (apparently) is deeply rooted in our society, which we urgently have to deal with. This is shown not least by the decision discussed here and the commentary by Zuck. As the FCC already repeated it is also the duty of employers to protect their employees from racist and inhuman attacks and hostility. A different understanding and sensitivity must also be created for where racism begins and what one should not say and do. This is a duty for society and the case on which the FCC decision is based on as well as Zuck’s comments on it show that there is still a great deal to be done on this path.