Frequently Asked Questions about employer obligations
As a general rule, the AGG applies to all natural and legal persons as well as partnerships with legal capacity who have employees, no matter which company size.
In case of providing temporary workers to a third party (temporary work), both the lending and the hiring company are generally to be considered employers within the meaning of the AGG. For those employed as domestic workers and equivalent workers, the customer takes the position of the employer.
Furthermore, the AGG also expressly applies to public employers to ensure comprehensive protection of employees. Accordingly, civil servants and judges may also invoke the AGG with regard to their employers.
The AGG ensures comprehensive protection for employees. This means that not only the actual work relationship is protected under the AGG. Protection against discrimination also applies to
- working conditions (e.g. working hours, pay),
- dismissal and
- occupational pension schemes.
Employers even have to meet the requirements of the AGG prior to hiring someone, in particular when advertising positions and during the recruitment process. If they do not do so, they might be liable for damages.
Furthermore, the AGG also applies in the field of professional training and offers protection, for example, when applying for a trainee position or a (paid or unpaid) internship and during career counselling.
Information on how to avoid discrimination in job advertisements can be found in our publication “Diskriminierung in Stellenanzeigen” (Discrimination in job ads).
The AGG provides for the general obligation for employers to take the necessary measures to ensure protection against discrimination on any of the grounds mentioned under Section 1 (Section 12 (1) of the AGG). This also includes preventive measures.
To meet this obligation, the Act, for instance, provides that employers must inform their employees of the inadmissibility of discrimination and see to it that there is no such discrimination. This can be done, for example, as part of a staff meeting, through internal or external training and/or continuing education or also in one-on-one conversations. However, in the end, it is at the individual employers’ discretion what measures they implement to meet their obligations. In any case, the wording of the AGG as well as Section 61b of the Labour Courts Act have to be brought to employees’ attention, for example by putting up a notice, by a circular letter or corresponding information on the intranet.
Moreover, employers are obliged to set up a complaints body. Under Section 13 of the AGG, employees have the right to file a complaint with their employer in case they are discriminated against. Employees must be informed of the existence of the complaints body. Every complaint must be appropriately examined and the complainant has to be informed of the result. Employees having filed a complaint must not suffer any disadvantages as a result of this.
Further steps employers might take include concluding a company-level agreement against discrimination, drafting a code of conduct or drawing up a comprehensive concept on labour law measures in case of violations of the AGG.
If discrimination within the meaning of the AGG has occurred in a company, employers must take remedial action and take measures to protect the affected employees.
Discrimination under the AGG occurs not only if an unequal treatment is directly connected to a specific characteristic (direct discrimination), but also if a seemingly neutral act or measure has a discriminating effect (indirect discrimination). Discrimination within the meaning of the AGG can also include harassment which is tied to one discrimination characteristic as well as sexual harassment.
If employees discriminate against other employees, employers must take the suitable, necessary and appropriate measures in the individual case to stop the discrimination. Such measures can, for instance, include a warning, transfer to another job or part of the company, or even termination. In this regard, it also has to be considered in particular whether there is a specific relationship of dependence. Depending on the severity of the discrimination, the employer may even terminate the employment relationship with immediate effect. A corresponding ruling was passed by the Federal Constitutional Court in case of racist discrimination. (Decision of 2 November 2020, reference no: 1 BvR 2727/19).
If discrimination on a ground of discrimination is not committed by one’s own employees but by a third party, e.g. by customers or contracting parties, employers are also obliged to take appropriate measures to protect their employees.
If employers, in case of harassment or sexual harassment (Section 3 (3) and (4) of the AGG), do not take any or obviously inappropriate measures to put an end to the harassment, the affected employees have the right to end their professional activity without losing their pay if this is necessary for their protection (Section 14 AGG).
Further information and recommendations to prevent and deal with sexual harassment in the workplace can be found in our “Leitfaden für beschäftigte, Arbeitgeber und Betriebsräte” (Guideline for employees, employers and works councils”).
Apart from the right to file a complaint, which also has to be appropriately examined (Section 13 AGG), affected persons have additional other rights against their employer in case of discrimination within the meaning of the AGG.
Thus, in case of a violation of the prohibition of discrimination, they may claim compensation. This includes the damage done to the affected person due to discrimination. Provided that no concrete actual loss is found, compensation in money may be considered (Section 15 AGG). This is a type of damages for pain and suffering due to libel. However, it has to be noted that these claims have to be asserted against the employer within a period of two months after the (last) discriminating event. Thereafter, affected persons may prosecute these claims within a period of additional three months in / before a Court of Labour (Section 61b Labour Courts Act).
In case of discrimination on the grounds of not hiring somebody or denial of promotion, the AGG does not entitle affected persons to become employed even if it is determined that the discrimination has occurred (Section 15 (6) AGG). However, this does not rule out that the employer hires or promotes that person in the end; in court arbitration proceedings, it is also possible to work towards such voluntary “compensation”.
In case of sexual or other harassment in the workplace, affected persons also have the right to put an end to their professional activity without losing their pay if the employer does not take any sufficient protective measures and if this is necessary for their protection (Section 14 AGG).
Furthermore, there may also be other claims on the basis of different legal provisions other than the AGG.
If employers do not meet their obligations under the AGG, there may be different legal consequences.
On the one hand, they can be obliged to pay damages or compensation by a court of law. In this regard, their employees’ actions are attributable to them. Liability due to organisational fault can be considered if, in a concrete case of discrimination, provisions to prevent and avoid discrimination have not been implemented.
On the other hand, the burden of proof in proceedings for damages may also shift to the detriment of the employers if they have not fulfilled their organisational duties and their obligations of protection. Apart from that, a repeated justification in court can be ruled out if, for instance, a previous complaint has not been duly processed.
The works council may also file a suit for compliance with organisational and procedural regulations.