Since it came into force on August 18, 2006, the AGG has prohibited employers, superiors and employees from discriminating on the grounds of race or ethnic origin, gender, religion or belief, disability, age or sexual identity. The law prohibits both direct and indirect discrimination.
Direct discrimination occurs when individuals are treated less favorably than others in a comparable situation on any of the above grounds.
Indirect discrimination occurs when an apparently neutral provision disproportionately affects a group with a discriminatory characteristic.
Even an instruction to discriminate against a person on the basis of a discriminatory criterion is itself considered discrimination, regardless of whether the person receiving the instruction actually carries out the discrimination.
To avoid any claims for damages from disadvantaged persons, employers should note the following:
1. Job advertisements / job interviews / rejections
Äußerste caution is advised when advertising jobs, conducting job interviews and formulating rejections.
In job ads, for example, the wording "to support our young, dynamic team" constitutes age discrimination and is therefore a violation of § 11 of the German General Equal Treatment Act (AGG). The following formulations can also sometimes be problematic: "good knowledge of German" or "accent-free pronunciation".
If no "older" applicants or women are actually hired in the above examples, these formulations represent circumstantial evidence that, according to § 22 AGG, gives rise to a presumption of unlawful discrimination. To refute these, the employer must prove in detail why the rejected applicant did not have the necessary qualifications, which is difficult to do in individual cases, especially if the documentation is inadequate.
Such seemingly "small" mistakes can result in substantial claims for damages. According to § 15 para. 1 AGG, the applicant with the best qualifications is entitled to fault-based compensation for lost earnings up to the earliest possible termination date. Pursuant to § 15 (2) AGG, all disadvantaged applicants are entitled to compensation of up to three months' salary, regardless of fault, which may even exceed this amount for the best-qualified applicant.
During job interviews, the problem of "inadmissible questions" and the associated "right to lie" for applicants has existed up to now. The employer may only ask the applicant questions in which he has a legitimate interest in answering. If an "unlawful question" is answered incorrectly, the employer has no right to terminate the employment contract or to contest it on the grounds of the incorrect answer. The AGG has expanded the catalog of impermissible questions. Caution is now also required when asking questions about alcohol/drug addiction, residence/work permits, age, marital status, number of children, Scientology affiliation or disability of the applicant.
An unsuccessful applicant who has been asked illegal questions in the interview is also entitled to the above-mentioned claims for damages, so you should not ask about characteristics that could fall under the grounds for discrimination mentioned in the law.
Rejections should be kept as general as possible so as not to provide any evidence of discrimination. Furthermore, information about applications and rejections should generally not be provided over the phone.
The same principles must be observed with regard to promotions, further training/retraining, other working conditions, remuneration and dismissals.
2. Preventive measures
Pursuant to Section 12 (1) of the AGG, the employer is also obliged to take preventive measures to protect against discrimination on any of the above grounds.
- In any case, according to Section 12 (5) AGG, the AGG itself, Section 61 b ArbGG (Labor Court Act) and information on the handling of complaints in the company must be made known.
This can be done, for example, via the intranet or by posting a notice on the bulletin board, but ideally by means of a circular letter. The circular letter has the advantage that receipt can be acknowledged and included in the personnel file. Such a letter can also be easily handed over to new employees when they are hired.
- The complaints office that is to be set up does not have to be a newly created institution. It is sufficient if certain superiors or, for example, the human resources department act as such.
- The measures that are additionally required depend largely on the circumstances of the individual case, such as the size of the company. Consideration should be given to training employees, posting notices, holding one-on-one meetings, or distributing leaflets to inform employees of their behavioral obligations. In any case, employees who themselves exercise managerial authority should be instructed in more detail, e.g. by means of management guidelines.
3. Employer's duty to intervene
If discrimination nevertheless takes place in the company, the employer is obliged to take measures to prevent it. Pursuant to Section 12 (3) AGG, this is done primarily by issuing a warning, transferring, relocating or dismissing the discriminating employee.
4. Consequences
If the employer fails to adequately fulfill its obligations to prevent discrimination, the discriminated person has various rights.
- Right of appeal to the complaints office to be set up in the company.
- Right to have the impairment removed
- Employee's right to refuse performance (only in the case of harassment and failure of the employer to take remedial action)
- Claims for damages
- Claims for compensation
With regard to the right to lodge a complaint, it should be noted that every complaint must be investigated and that every complainant is entitled to receive notification of the results of the investigation. In addition, for evidentiary purposes, the complaint should be addressed in writing and reasons stated.
[1] All statements refer to all genders.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.