In a couple of decisions the BAG, Germany’s Federal Court of Employment, has given some interesting new case law with regard to the Antidiscrimination legislation, the so called AGG (Antidiskriminierungsgesetz), which is useful to be roughly familiar with.


The objective of the AGG is to prevent and eliminate discrimination on the grounds of race, ethnic origin, sex, religion or belief, disability, age and sexual orientation.

The first case involved the question of discrimination on the grounds of age.

The plaintiff, born in 1958, applied for a position as legal counsel.

The job posting read:

“zunächst auf ein Jahr befristet eine(n) junge(n) engagierte(n) Volljuristin/Volljuristen”

The plaintiff’s application was rejected without having invited him to a job interview. The job was handed to a 33 year old applicant.

The plaintiff demanded compensation to the tune of 25.000,00 € and, in addition, one year’s salary as damages.

The BAG ruled that the plaintiff was indeed discriminated against on the ground of age. The employer is obliged to advertise the vacancy in an age neutral manner, unless he is able to cite reasonable grounds that justify the discrimination, i.e. his specific demand for a young employee. Due to the advertising in such an age discriminatory manner, it was presumed that this discrimination was the reason for not getting the job. The defendant failed to counter that presumption. Had the plaintiff proven that he definitely would have been chosen in the case of a discrimination free treatment, he would have qualified for damages. However, he was not able to show that he had been the exclusively qualified candidate in the absence of discrimination. Still, as redress for the discrimination as such, he was awarded a month’s salary as compensation.


The next case illustrates that the specific sequence of events determines if there has been discrimination at all.

This time the discrimination revolved around disability. The employer did not observe a special procedure designed to advance disabled persons at the time when he posted the vacancy in the internet. The plaintiff, a disabled person, applied a number of days after the job had been posted. In the following lawsuit, the employer proved that he had already given away the job at the time of the application of the plaintiff. The BAG ruled that in this case the plaintiff was not discriminated against since the job, at the time of his application, was already no longer available.


In the last case, the employer searched for a person dealing with the education of migrants and explicitely required in his job posting

“eine Fachkraft mit abgeschlossenem Studium der Sozialwissenschaft”.

He also required that the applicant belong to a Christian church. The plaintiff was a female Turkish Muslim. She did not have a university degree as qualification. In the course of the application, the employer addressed her religious background and ultimately gave the position to a female applicant who was born in India and had a university degree in social science.

The lawsuit of the plaintiff was unsuccessful.

The BAG did not examine whether the plaintiff had been discriminated against, this time on religious grounds. Rather, it pointed out that the plaintiff was not at all in a comparable position to her counterpart who got the job. Unlike the successful candidate, the plaintiff did not have the required university degree. The Court respected the employer’s decision to require such a university degree in his specific vacancy announcement. Such a qualification was a reasonable requirement for candidates dealing with the education of migrants. Also, the employer stuck to this requirement during the application process and did not abandon it.

The AGG is in force since August 2006. It goes back to respective EU Directives and is heavily influenced by case law often prompted by the ECJ (European Court of Justice) as was the case in

http://www.trust7.com/en/foren/faq_and_important_links/kuendigungsfrist_notice_period/re_kuendigungsfrist_notice_period__2

In summary to the decisions introduced above, the employer has to advertise his job openings in a neutral manner. The BAG also opens a defence against a discrimination claim, if the employer can prove that he had already filled the vacancy, especially if he has not set an application period. Finally - but very important - the applicant asserting discrimination has to meet the requirements as stated in the job opening as long as they are reasonable and the employer remains truthful to them in his selection of the applicant.


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