Page 27 - ELG2205 May Issue 480

FEATURES

compensation, administrative warnings and her she could seek compensation. They also requirement for doing the job and they were
fines. There are specialised bodies all over warned her that courts might not see it this also unable to rely on customer expectations
Europe. For example, the UK has the Equality way, because the law allowed for possible or demands.
and Human Rights Commission and there’s the exemptions in certain cases. The debate will go on. Challenging schools
Irish Human Rights and Equality Commission. The German General Equal Treatment can prove difficult, as authorities and courts in
They provide assistance, conduct surveys, Act provides for damages to be paid to an other countries might draw other conclusions,
publish reports and issue recommendations. unsuccessful applicant suffering discrimination interpret local laws differently or accept the
In some countries, they have judicial functions during the job application process. This might notion that a school has a choice in a particular
and can make binding decisions. They review be using a discriminatory term in a job ad, during case. The stand a German court has taken here
any case and give free advice. review or when declining a candidate. But there fosters equal opportunity. The native-speaker
is no rule without an exception: you may treat concept does not. It divides. It excludes. And
Test case people differently when your demands reflect it lets a lot of talent go unnoticed.
Germany has recently seen its first ever case a “genuine and determining occupational
of an ELT professional challenging a school’s requirement”. So, for example, when casting
hiring practice and taking legal action (as the role of a grandmother for a film or theatre
reported in the February issue of the Gazette). play, you can decline a male teenager because
Holding Cambridge teaching qualifications of his age and gender. What about a non-native Step-by-step
(CELTA and DELTA), the teacher in this English-speaking teacher applying for a job? guide to taking
case had already worked for schools in several Can it be just to say, “native speakers only”? Is it
countries, including in Britain, before she a genuine teaching requirement? And what is a a case to court
came to Germany. native speaker, anyway?
However, she was born and raised in Greece According to David Crystal, a native When you apply for a job and are declined
and this fact alone closed the door to her for a speaker is someone “who has learned a in violation of equal treatment principles,
job teaching English at a local inlingua school. language through the normal processes of you can follow these steps. You need an
They refused to consider her application, child language acquisition. This means having indication that certain characteristics, for
stating that they could only hire native an intuition about such things as nursery example age, gender or ethnic origin, have
speakers. No chance to demonstrate her skills, rhymes, babytalk, family slang, the regional been taken into account. This can be a letter
no phone call, no interview. accent and dialect of the home community, or an email you received, what you were told
The teacher turned to the body established language play, the rituals of child-related during an interview or the job ad.
under the directives in Germany, the Federal cultural events and so on”.
Anti-Discrimination Agency. They took the Your first language is therefore linked to Step 1: Contact the equality body in
stand that this was discrimination and told the area you grew up, your origins and also to the country you are in (details here:
certain ethnic groups. https://e-justice.europa.eu/content_
In 2017, Germany’s highest labour court
There is no rule without decided that it is discriminatory to use the term fundamental_rights-176-en.do) and present
your case to them. In countries where the
an exception: you may native speaker because it indirectly relates to body has been assigned judicial functions,
they will investigate themselves and make a
somebody’s ethnic origin.
treat people differently The teacher in this case, who finally decision. If not, see Step 2.
when your demands received €3,000 as part of an in-court Step 2: You can seek compensation
settlement, had pointed this out to the school
reflect a ‘genuine and when they rejected her application, but they directly from the company you applied
to. This might involve hiring a lawyer
would not discuss it and insisted on their
determining occupational hiring principles. and taking them to court, bearing in
mind any cost risks involved should you
However, they were not able to convince
requirement’ the court that being a native speaker is a be unsuccessful. Of course, if you are a
member of a local union they should be
able to help you.
The European Commission has published
a detailed report on the situation in
Europe, covering all EU member states plus
the UK, Albania, Iceland, Liechtenstein,
Montenegro, North Macedonia, Norway,
Serbia and Turkey: ‘A comparative
analysis of non-discrimination law in
Europe 2021’, https://www.equalitylaw.eu/
downloads/5568-a-comparative-analysis-
of-non-discrimination-law-in-europe-
2021-1-75-mb.

Patrick Mustu is a lawyer,
language trainer and
translator in Germany.
He represented the teacher
in this case.

editorial@elgazette.com 27