Germany Vindicates Affirmative Action - Mostly in Theory

A GERMAN federal court ruling this month has narrowly vindicated affirmative-action laws intended to increase the number of women in public-sector jobs.

But in the private sector, equal opportunity for women remains largely theoretical. Although gender discrimination is illegal, women hesitate to seek redress in the courts. Even government officials seem to accept that private businesses should have a certain autonomy.

"It's hard to take your employer to court," says Ingrid Barbara Simon, director of women's issues at the Family Affairs Ministry in Bonn. "Even if you win you may lose."

Like the United States, Germany is facing the vexing question of how to improve opportunities for women without putting men at an unfair disadvantage. But it is taking very different approaches: In the US, equal opportunities have generally been pursued in the courts and by individuals, often with support of public-advocacy groups. The German approach has been less litigious and more through public institutions, such as the Family Affairs Ministry.

Especially now, employment opportunity for women here is a looming concern when 12.3 percent of the German work force is unemployed - a postwar record.

Although the image of the jobless German may be the west German auto worker, whose union has effectively priced his services out of the market, the face of the jobless German is just about as likely to be that of a woman.

Women's unemployment is just a nick behind men's - 12.2 percent versus 12.4 percent. And in eastern Germany, unemployment last month was 20.6 percent for women, compared with 16.8 percent for men. The gap is even more significant because winter is a time of high unemployment in sectors where men predominate, notably construction.

The government has tried to forestall a two-tiered labor market - with men getting better jobs and better salaries - partly through quota laws in public-sector hiring.

These have not been without controversy, however. In 1990, in the north German city of Bremen, Eckhard Kalanke, a horticultural designer, was denied a promotion in favor of a woman under Bremen's affirmative action laws. He sued.

The Federal Labor Court in Kassel asked the European Court of Justice in Luxembourg to rule whether the Bremen law was in accord with European law. When the Luxembourg court ruled last October in the negative, the decision was seen as likely to affect affirmative-action laws across the European Union.

But the European Court's objection to the Bremen law was not its preference accorded to women but the fact that the preference was automatic. And so the German Federal Labor Court, evidently taking its cue from the narrowness of the Luxembourg verdict, on March 5 denied Mr. Kalanke compensatory damages but said he could reapply for the job.

The whole episode is an interesting sidelight on European integration: A ruling for Bremen, a city-state with fewer than 700,000 inhabitants, could have implications for the 350 million of the EU.

IN the US, a proposed amendment for equal rights for women has spent most of this century in legislative limbo. By contrast, the Basic Law, Germany's postwar constitution, reads: "The state supports the actual achievement of equal rights for women and men and works toward the elimination of existing disadvantages."

Thus German federal ministries and state governments have appointed "women's representatives" and equal-opportunity commissions.

But not everyone is convinced that these approaches will help much. "There's been a sort of institutionalization of the women's movement, with the establishment of the women's ministries, and so on," says Christa Wichterich in Bonn, head of a group called NGO Women's Forum. "But where is there a women's movement that can take to the streets and demand action?"

In fact, the German Bundestag, or lower house of parliament, has a much higher percentage of women than does the US Congress - over 20 percent since the 1994 elections.

But in the private sector, old habits die hard. Help-wanted ad sections are full of elaborate egalitarian language: "Manageresses and managers sought." But a local bakery posts a sign saying, "Saleswoman wanted." And one widely used German-English dictionary gives the German idiom for "to fill a position" with the example, "We are looking for a young man to fill the post of..."

A US employer would have trouble ending that sentence without breaking antidiscrimination laws.