"Non-Germans" Under the Third Reich (35 page)

2. Other Liberal Professions

In addition to the elimination of Jews from state-licensed professions, steps were taken to exclude them from all leading positions in the commercial field and all other activities of importance. This process was initiated immediately after the pogroms of November 1938 (
Reichskristallnacht
), because now the “Jewish question” had to be settled by central regulations. As Göring put it at a conference on November 12, 1938, “the screws also have to be tightened in the economic field, since the Jewish question is mainly an economic one.”
¹¹⁶

The decree on the exclusion of Jews from German economic life of November 12, 1938,
¹¹⁷
established that as of January 1, 1939, Jews could no longer be at the head of an enterprise under the terms of the Law for the Regulation of National Labor of January 20, 1934.
¹¹⁸
Jews were thus no longer permitted to be employers. The decree further prescribed that Jewish managers could be dismissed on six weeks’ notice, after which period they lost all their contractual rights and all rights to pensions and indemnities (secs. 1 and 2). Jews were not allowed to be members of a cooperative (because this institution under German law was reserved for ethnic equals [
Volksgenossen
]) and automatically lost their membership on December 31, 1938 (sec. 3). They were further forbidden to run a retail shop, exercise an independent trade, or visit markets, fairs, and exhibitions for commercial purposes. In addition to these restrictions, from 1938 on Jews were barred from many other professions subject not to licensing but to registration. Through an amendment of the Commercial Code of July 6, 1938,
¹¹⁹
Jews were not allowed to work in the following businesses: detective agencies, security services, the administration of houses and estates, and commercial matrimonial agencies (with the exception of matchmaking for Jews and
Mischlinge
of the first degree); they were also forbidden to work as real estate agents, brokers for real estate contracts and loans, or commercial tourist guides. With these measures all
autonomous
activities in the field of trade and industry became closed to Jews.

During this second wave of discrimination at the latest, the liberal professions in the cultural domain also became completely barred to non-Aryans. In the most important field, that of the press, their exclusion had been effected even earlier with the Law on Editors of October 4, 1933.
¹²⁰
The barring of non-Aryans was implemented later in the fields of film, theater, and cinema, following administrative regulations attached to the various legislative acts (on movies, theaters, etc.).
¹²¹

Once they had been ousted from public service, the liberal professions, and independent business, the only activities open to Jews from 1938 onward, apart from the very limited fields of legal adviser (
Rechtskonsulent
), medic (
Krankenbehandler
), or dental orderly (
Zahnbehandler
), were subordinate positions in commerce, industry, insurance, and banking. But here the doors were often closed to them, since many firms dismissed Jews on their own initiative and refused to recruit them.

3. Labor Law

a. Jewish Workers

As a consequence of the developments in the professional sector described above, Jewish workers were all the more in need of jobs in the private sector, because contracts with non-Aryans in the public service (which employed both state officials with special legal status [
Beamte
] and employees on the basis of private contracts) could in accordance with the Professional Civil Service Code of April 7, 1933, be rescinded (although not obligatorily), and no new recruitments were permitted.
¹²²
Insofar as Jews obtained or kept a job in the private sector, they were also subject to far-reaching discriminatory treatment even in the field of labor laws,
¹²³
which began to be passed in 1938. Virtually only low-level jobs were open to them, since positions in senior and middle management had been barred to them since 1934.
¹²⁴

As in other fields, the formal equality of Jewish workers to German workers under the law remained intact, while de facto pressure was exerted by the individual firms and through internal administrative regulations. The policy of the state authorities was aimed at separating Jews and Germans, registering all Jewish workers, and exploiting them to the maximum by what amounted to forced labor for minimum wages. To relieve the public funds of the additional burden of social welfare payments to unemployed Jews,
¹²⁵
the president of the Reich Labor Exchange and Unemployment Insurance had been given extensive powers since 1934 in all questions of forced labor.
¹²⁶
Under these powers and with the explicit approval of the plenipotentiary for the Four Year Plan, Göring, and the support of the deputy of the Führer, Hess,
¹²⁷
he gave instructions that “an effort should be made to put all Jews who were unemployed and fit for work into service as quickly as possible” and asked public and private undertakings to prepare work projects to this end.
¹²⁸
This initiative, which in fact was nothing other than a preparation of forced labor for Jews, led to the issuing of a decree a few months later (March 4, 1939) by the president of the Reich Labor Exchange, in agreement with the Reich minister for food and agriculture, according to which unemployed Jews were to be put to “hard physical work” and “segregated from non-Jews.”
¹²⁹
This did not yet mean the legal enforcement of generalized forced labor for Jews, but in order to avoid forced labor when unemployed, Jews were obliged to accept any work offered, whatever its nature. At the local level, nevertheless, things had gone further, and the prospect of forced labor loomed over the whole Jewish workforce, since Jews were sent on a short-term basis or permanently on work projects managed by the SS, usually in agriculture or forestry.
¹³⁰
Instructions by Hitler blocked the planned allocation of Jewish workers in the Annexed Eastern Territories, foreseen in the Reich labor minister’s decree of March 14, 1941,
¹³¹
since economic considerations always had to be secondary to the plans to deport Jews to the General Government.

With regard to the treatment of Jewish employees under actual labor law, they were kept subject to the general labor law for a relatively long time, since the racial legislation that had been enacted could not yet in principle be applied to Jewish employees in the private sector.
¹³²

This strict separation between the Civil Service with its rigorous racial regulations and the economic sector, to which the Aryan Paragraph did not in principle apply, was in many cases nothing but a technicality. Already by the spring of 1933 it had become extremely common for Jewish employees to be dismissed on racial grounds alone. Often they were axed without notice, because employers considered non-Aryan descent to be an important ground justifying dismissal in accordance with sec. 626 of the Civil Code,
¹³³
which permitted dismissal without notice if continuation of the contract until the end of its regular term could not be expected from the party who issued the dismissal (in most cases the employer), that is, in cases in which the basis of confidence and/or reliability was seriously compromised. This clause was misused by employers, who claimed that the racial descent “contaminated” this reliability in a serious way—although racial descent had been of no consequence whatsoever before 1933. As a result of this practice, employers argued that legal claims by dismissed Jews should be refused solely on the grounds of the plaintiff’s racial descent.
¹³⁴
The Reich Supreme Labor Court adopted this argument because “the racial principles promulgated by the NSDAP were now widely acknowledged, even among those sectors of the population that did not belong to the Party.”
¹³⁵
(In practice this meant that claims by Jewish plaintiffs were in any case rejected as inadmissible without examination.)

Regarding the field of substantive law, the basic argument put forward for the dismissal of Jews, as pointed out in the draft for the reform of the labor law drawn up by the Academy of German Law, was that dismissal without notice could be considered in individual cases if “the party issuing the dismissal could not be expected to maintain the employment contract in accordance with the meaning and substance of the labor and business community, with due regard to the type of employment and mutual loyalty.”
¹³⁶
This principle was implemented mainly to justify dismissals of non-Aryan employees in highly placed positions and of non-Aryan salesmen or agents.
¹³⁷
When non-Aryan descent did not justify dismissal without notice, the labor courts often approved regular dismissal. Petitions by the affected employees to have the dismissal revoked on the ground of “undue hardship” (according to the Law on Protection against Unjustified Dismissal) were usually unsuccessful
¹³⁸
(thus “normal” legal protection had thus become the exception). This practice was the expression of a very broad and mostly arbitrary interpretation of the principles of dismissal developed mainly by the Reich Labor Court.

In sum, this interpretation argued as follows: employment contracts with Jewish employees could be dissolved by means of regular dismissal (which required consideration of certain terms, e.g., three or six months’ notice). In answering the question whether non-Aryan descent justified dismissal without notice in accordance with sec. 626 of the Civil Code, the Reich Labor Court presented a differentiated approach. In a very early decision of November 25, 1933, which presumably established the main line of the subsequent judicature in labor law, the court pointed out that dismissal of non-Aryans without notice was legally valid only in the public service and not in the field of private business. Nevertheless, “because of the new attitude of the German people toward Jewry as a result of the national revolution, one [could] not ignore” the impact of this attitude on contracts in private business. (This was a de facto acknowledgment or justification of
extra legem
, illegal dismissals in the field of private business, the introduction of a racial ideology into private labor law.) The decisive point was therefore whether continuation of the employment contract could be expected (by the employer) until the expiry date for regular dismissal. The question whether racial descent was a major obstacle to the continuation of the contract always had to be answered according to the special circumstances of the individual case: the basis should in this context be the “enlightened attitudes of the present, … not the possibly premature judgments under the impact of political events.”
¹³⁹
(This was an evident allusion to the anti-Semitic excesses of spring 1933, by which the court obviously intended to put a stop to extreme anti-Semitic actions in the field of labor law; but by the acknowledgment
in principle
of racial thinking in labor law—
extra legem
—the court had opened the door to the illegal and arbitrary dismissal of Jewish employees.) In the legal literature, the opinions were equally in favor of a judgment according to the merits of the individual case.
¹⁴⁰
(This was in any case implicit in the law; that individual considerations needed to be mentioned explicitly in the case of Jewish claims shows how legal thinking had perverted the law.)

In line with this manner of thinking, the Reich Labor Court denied Jewish employers whose businesses were seriously affected or even made bankrupt as a result of the anti-Jewish excesses, the right to dismiss employees without notice “for important reasons.” In a judgment of February 1934 in which the court had to decide whether the dismissal of the head clerk of a non-Aryan lawyer and notary was lawful (the lawyer having established a practice together with another lawyer and having been dismissed from the notary’s office on the strength of the Professional Civil Service Code of April 7, 1933), the court ruled in a strictly formal way, making a mockery of the actual situation of the Jewish employers. It was normal, the court ruled, that the risk of a business should be borne by the employer: economic losses did not therefore automatically entitle him to serve dismissals without notice. The extraordinary losses in the Jewish defendant’s business after June 1933 (the date of the head clerk’s dismissal) had not been “so catastrophic” that he could not have been expected to continue the employment contract with the head clerk until September 30, 1933, the date on which regular dismissal would have taken effect.
¹⁴¹
(The aim of this judgment was ostensibly to prolong the financial burdens for Jewish lawyers.)

Over and above this situation, an important question was whether and in what way the principle of reasonableness should be valid for Jewish employees of municipal authorities, too. In the literature, the dismissal without notice of such individuals on account of their race was always declared admissible.
¹⁴²
In this context the legal argument was not based on the quality of non-Aryan descent as such, but on the “general viewpoint that had been growing up over the past years regarding the possibility of employing a Jew at a municipal agency.”
¹⁴³
(Thus, not only racial descent but even racial
thinking
was acknowledged as a legitimate argument for discriminatory measures.) The Reich Labor Court again confirmed its opinion, however, that only in the individual case could racial descent lead to a dismissal without notice, and it referred the case to the lower instance (decision of March 20, 1937).
¹⁴⁴
In another case, however, the court did acknowledge as lawful the dismissal of a Jewish member of the communal orchestra because he had not been accepted in the Reich Chamber of Culture (ruling of February 6, 1937).
¹⁴⁵