Almost a year ago, we reported that "Mr. or Ms. is not sufficient as the only mandatory form of address on websites". Our article was based on a ruling by the Regional Court of Frankfurt am Main, which ordered the sales subsidiary of Germany's largest railroad group to cease and desist because there was no gender-neutral form of address on the group's website. Persons with a non-binary gender identity would have their general personal rights violated if there was no gender-neutral form of address option.
Confirmed by OLG
This ruling by the Regional Court of Frankfurt am Main has now been confirmed by the Higher Regional Court of Frankfurt am Main in its ruling of 21.06.2022.
Reinforced by OLG
Comprehensive injunction
In addition, the Frankfurt am Main Higher Regional Court takes an even stricter view of the matter than the Regional Court. While the Regional Court referred to the areas of the website, issuing tickets etc., customer service letters, invoices and accompanying advertising and in the administration of data, the Higher Regional Court has now ruled comprehensively for all of the defendant's offers that more than just "Mr." or "Ms." must be possible. After all, a generous implementation period until the end of 2022 was granted for the online area (not personal communication). In individual communication, the ruling must be observed immediately.
Monetary compensation
Above all, however, the Frankfurt am Main Higher Regional Court has awarded the plaintiff monetary compensation of €1,000. According to the press release currently available, this is justified as follows:
The plaintiff has suffered non-material damage as a result of the violation of the prohibition of discrimination, the OLG reasons. She experienced "the attribution of masculinity" on the part of the defendant as an attack on her own person, which led to significant psychological stress. The monetary compensation was appropriate as it provided the plaintiff with satisfaction for the humiliation and humiliation caused by the discrimination. The significance and scope of the disadvantage for the plaintiff on the one hand and the defendant's motives on the other must be weighed up. The disadvantages for the plaintiff were to be assessed here as so massive that they could not be satisfactorily compensated for in any other way than by monetary payment. In favor of the defendant, however, it should be taken into account that no acts of discrimination directed individually against the defendant took place. Furthermore, the issue of recognizing the personal rights of people with non-binary gender identity is a recent social development that has not even been reflected in the 2004 Equal Treatment Directive (Directive 2004/11/EC). Thus, it was not apparent that the defendant had deliberately or intentionally omitted a gender-neutral purchase option when introducing its software with regard to online ticket purchases in order to discriminate against non-binary persons. However, unlike other large companies, the defendant has not yet adapted its IT systems. In addition, the defendant should be criticized for continuing to use an inappropriate male form of address in its individual communication with the plaintiff - for example with regard to the BahnCard.
Amended legal reasoning
Contrary to the Regional Court, the Higher Regional Court of Frankfurt am Main assumed direct discrimination within the meaning of Sections 3, 19 AGG on grounds of gender and sexual identity in the establishment and performance of civil law obligations in mass transactions.
The criterion of the establishment of a contractual obligation in the AGG is to be interpreted broadly and not only in relation to specific contract initiations. It also includes the prevention of business contacts if people of non-binary gender are forced to select the form of address "Mr." or "Ms." when concluding a contract online.
On the basis of the AGG, the plaintiff was therefore also entitled to monetary compensation.
Threat of follow-up proceedings (warnings)
The fact that monetary compensation has now been awarded significantly increases the risk of companies being sued for a similar selection obligation.
All online and offline customer management systems should now be checked to see whether gender-neutral forms of address are possible. We looked at ways of implementing this in our previous article.
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.