Berlin’s Justice Senator Felor Badenberg has deemed the city’s migrant quotas in public service hiring "unconstitutional" and has halted the practice. She argued that appointments must prioritize "merit," but it remains unclear how unconscious bias or discriminatory attitudes in recruitment processes can be prevented.
Berlin's Justice Senator Felor Badenberg has raised constitutional concerns over the city's so-called "Participation Law," which aims to increase representation of people "with a migration background" in the public service. A legal opinion commissioned by Badenberg, from a law firm, concluded that certain provisions of the law, passed in 2021 by the red-red-green Senate under then-governing Mayor Michael Müller, may violate the German Basic Law, according to information obtained by Der Spiegel.
The Participation Law requires that when inviting candidates for public sector positions, "at least as many people with a migration background must be invited to selection interviews as corresponds to their share of Berlin's population" (currently just over 40 percent). In addition, candidates with a migration background who meet the same qualifications as other applicants are to be specifically recruited in hiring decisions, according to German media reports.
Though supporters of the legislation may view it as a necessary measure to ensure fair hiring of people with a migration background in an otherwise potentially discriminatory environment, the commissioned legal review said that these quotas conflict with constitutional principles.
Read AlsoAnti-immigration politics contribute to racism in Germany
'Integration won't succeed through quotas' – Badenberg
According to the Basic Law, public office appointments must be based on suitability, qualifications, and performance, while no one may be disadvantaged or favored on the basis of characteristics such as origin, gender, or ethnicity. The report concluded that the law, if applied literally, could violate both the principle of selecting the best candidates and the prohibition against preferential treatment.
Badenberg, who immigrated from Iran as a child, stressed her support for "integration" while affirming the constitutional limits: "Precisely because I myself have a migration history, I know how important belonging and fair opportunities are. However, there is a clear standard for government action: the Basic Law is my compass." She added, "Berlin needs to attract the best minds. Integration won't succeed through quotas, but through equal opportunities for all."
However, how equal opportunities can actually be ensured remains unclear.
Read AlsoRefugees in Germany report more xenophobia
Badenberg wants to focus on ' integration and participation'
The issues surfaced at the public prosecutor's office, where Chief Public Prosecutor Margarete Koppers reportedly gave preferential treatment to applicants with a migration background, the Tagesspiegel reported. Some highly qualified applicants without a migration background were excluded from interviews to meet the quota, while reportedly lower-ranked candidates with a migration background were invited, according to Tagesspiegel. After learning of the practice, Badenberg ordered a full review, confirming that the procedure violated constitutional principles
Badenberg has halted the previous quota-based practice and intends to apply the law in a manner consistent with the constitution. She said that candidates with a migration background can still be invited for interviews, provided this does not contravene the selection of the best-qualified applicants. Though it remains unclear how unconscious bias or discriminatory attitudes can be prevented.
Badenberg also said she plans to work with coalition partners to amend the law’s unconstitutional provisions while continuing to promote integration and participation.
Read AlsoDiscrimination is a widespread phenomenon in Germany