Frequently Asked Questions about tips for employers
Employers within the meaning of the AGG are any natural and legal persons as well as business partnerships with legal capacity that provide employment - irrespective of company size. Since the company size does not matter, you are an employer as soon as you have employed one person and can ask them to provide services on the basis of an employment contract.
In the context of temporary work, agency work or labour leasing, both lessors and lessees are considered employers within the meaning of the AGG. This is the only way to ensure full protection from discrimination. The client takes the place of the employer in the case of persons engaged in home work and those equal in law to them.
Moreover, to ensure comprehensive protection of the workforce, the AGG explicitly covers public employers, as well.
The AGG applies to all employed persons. This does not only cover employees but also trainees, interns and persons who can be considered employee-like due to their economic dependence. This includes, for instance, home workers.
Where the conditions for access to gainful employment or promotion are concerned, the AGG also applies to self-employed persons and board members, especially the management and board of directors.
However, the AGG can also be applied to applicants and former employees in cases where the employment relation still has follow-on consequences (for instance in terms of old-age pensions).
The AGG also applies to civil servants and judges. Soldiers are covered by corresponding provisions in the Legal Status of Military Personnel Act (in German:Soldatengesetz)
First, discrimination can be direct if a person is treated less favourably than another in a comparable situation on account of a discrimination ground (for instance, ethnic origin or gender). For example, discrimination can be occurring if women are not being promoted in a company.
Furthermore, discrimination can also be indirect as a result of seemingly neutral regulations that end up having a discriminatory effect. This can be the case, for instance, where part-time staff are not promoted at a company, yet this group is almost exclusively made up by women.
Discrimination also includes (sexual) harassment. Harassment is conduct related to any of the discrimination grounds that takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. Sexual harassment is sexualised behaviour with the purpose or effect of violating the affected person’s right of personality. This can be through verbal, non-verbal or physical harassment. Examples include sexually suggestive language, wolf whistling or inappropriate physical contact.
Bullying, too, can amount to harassment as defined in the AGG, if it is related to a ground for discrimination.
Unequal treatment that is linked to a discrimination ground is usually impermissible. This is particularly relevant for job application procedures, in the context of recruitment, career advancement and promotion, working conditions, pay, dismissal as well as training and further training.
In exceptional cases, unequal treatment can be permissible, provided it aims to prevent or compensate for existing disadvantages – known as positive action. This can comprise, for instance, positive action to encourage the employment of persons with disabilities, since these are, as a rule, much more likely to face disadvantages in working life.
Moreover, differences in treatment on the grounds of religion or belief can be permissible if the employer is a religious community and a specific religion or belief is a genuine, legitimate and justified occupational requirement for that specific type of occupational activity or the context in which it is carried out. Schools recruiting a teacher for religious instruction, for instance, may require that he or she be Catholic. In the case of Catholic religious instruction, for that matter, even state-run schools have no choice but to recruit a Catholic teacher, since here, teaching is conditional on a Church-issued licence to teach (missio canonica) which, in turn, presupposes that the person be of Catholic belief.
This means that in this case religious affiliation is a legitimate occupational requirement within the meaning of section 9 of the AGG, since the ECJ and the Federal Labour Court found that teacher of Catholic religion – even at state-run schools – is a profession that is involved in evangelisation (in German: verkündungsnaher Beruf).
Unequal treatment on grounds of age can be permissible if it serves a legitimate socio-political purpose in the fields of employment policy, labour market or vocational training and is not unreasonable. In terms of recruitment, unequal treatment on grounds of age can be justified to promote the vocational integration of young persons or older workers.
In individual cases, moreover, differences in treatment can be permissible because of occupational requirements. For example, a counselling centre for female migrants who have experienced sexualised and domestic violence would be permitted to openly advertise a job just for “women with a migrant background”.
Diligently drafted advertisements of vacancies are essential for making the best recruitment choices and increase the likelihood of addressing as many suitable applicants as possible. In addition, discrimination-sensitive job advertisements promote equal opportunities for accessing a job and can boost the employers’ positive image.
Therefore, advertisements for vacancies should be phrased as neutral as possible with respect to grounds protected under the AGG, so as not to violate the Act. They should only include requirements that exclusively concern the occupation and that are truly relevant to the vacancy advertised. They should not require that the applicant include pictures of themselves or disclose their age, gender or place of birth. Nor should the advertisement refer to a preferred age group or first language.
Moreover, job advertisements must be gender neutral (see the decision by the Karlsruhe Higher Regional Court - OLG Karlsruhe, decision of 13 November 2011, Aktenzeichen (case number): 17 U 99/10). In addition to the traditional male and female genders, they should also include a third option (e.g. m/f/diverse or m/f/x) to also address intersex and non-binary persons, for instance.
Examples of (indirect) discrimination in job advertising can be the implicit requirement for a specific nationality. When certain language skills are made a requirement, the relevant aspect is whether or not they are necessary for the specific occupation. Indirect discrimination on grounds of gender can be said to exist when a certain height is demanded or a job is not advertised as part-time although this would be a viable option (see the decision of the Regional Court of Hessen - LAG Hessen - of 8 April 2011, case number 3 Sa 343/11). Similarly, indirect references to age such as “young team looking for” should be avoided (see the decision of the Regional Court of Kiel - LSG Kiel, of 29 October 2013, case number: 1 Sa 142/13). Another problem might be requirements for the applicant’s state of health, since they involve an increased potential for discriminating against persons with disabilities.
Explicitly inviting groups of persons to apply who have so far been underrepresented in the company is permitted in job advertisements. This is known as positive action as set out in section 5 of the AGG.
Please also note the following: If the position is advertised by an employment agency or job placement service, you will nevertheless be held accountable for any violation.
For further insights and recommendations, consult our brochure “Diskriminierung in Stellenanzeigen” ("discrimination in job advertisements" - in German)
To avoid discrimination, you should document by means of predetermined objective criteria (such as certificates and report cards, grades, work history, international experience, social skills, language skills) which persons you invited for an interview. If possible, aim to avoid conducting the interview alone and, on finishing it, document in writing why you decided to recruit this person and why you rejected the other applicants. This helps to prove the neutrality of selection in case of litigation.
Please note that questions linked to a protected ground for discrimination (age, civil status, sexual orientation or nationality) are not allowed in job interviews. Applicants are not obliged to answer such questions truthfully or even at all.
You should formulate letters of rejection objectively and factually and, where necessary, also provide reasons. In general, however, providing reasons is not obligatory. The situation only differs with respect to severely disabled applicants: here the letter of regret must specify the reasons for their rejection.
You should keep the application and the process documents even beyond the completion of the application process. A rejected applicant can assert potential claims under the AGG within two months of receiving the letter of regret. Unless they do so, data privacy requirements oblige you to destroy application documents promptly after that.
You can find more on (im)permissible questions during an interview in our brochure “Was Arbeitgeber fragen (dürfen)” ("what employers (are allowed to) ask" - only available in German)
As an employer, you are obliged to put certain measures in place to ensure protection from discrimination within the meaning of the AGG. These include
- Establishing a complaint board: Every complaint has to be investigated and the result shared with the complainant.
- Making the text of the AGG and section 61b of the Labour Courts Act as well as information about the in-house complaint board known across your company. For instance, this information can be put up, displayed, posted on the Intranet, circulated or attached to the employment contract.
- Informing staff that discrimination is not permissible, for instance through one-on-one talks, during works or staff meetings, by means of training programmes or mandatory further training.
- Preventing discrimination by other staff. If an instance of discrimination has occurred in your company, you are required to respond with a suitable, necessary and proportionate penalty. The choice of the penalty is at your discretion. Depending on the severity of the violation, various penalties can be considered, such as an admonition or written warning, a move, a relocation or a dismissal. You also have to protect your staff from discrimination by third parties (such as clients or contractual partners). To prevent discrimination by third parties, you should include a commitment to non-discriminatory contract implementation along the lines of the AGG into your General Business Conditions (AGG).
Over and beyond the direct and immediately needed measures, you should consider further steps to make provision for the future, such as concluding a firm-level agreement against discrimination, establishing a code of conduct or a comprehensive concept on labour law action in response to AGG violations. It is also recommended to regularly check existing employment contracts or firm-level agreements for potentially discriminatory clauses.
It is true that the failure to put preventive and protective measures in place does not usually amount to discrimination that will trigger an obligation to compensate the damage as stipulated in the AGG. However, if you fail, for example, to fulfil your duty to stop any further discrimination in your company, this can amount to a breach of your contractual duty to protect and result in the affected person having a claim for damages. What is more, you are more likely to be held liable for your staff’s discriminatory conduct if you have not taken preventive action.
For information on the prevention of sexual harassment in the workplace, visit our
“Leitfaden für Beschäftigte, Arbeitgeber und Betriebsräte” ("guide for staff, employers and works councils" - only available in German)
Under the AGG, staff have the right to lodge a complaint with their employer. This right applies irrespective of whether or not a complaint board has been set up.
If the prohibition of discrimination has been violated, staff not only have the right to complain, but also a claim to damages and compensation against their employer. The amount of compensation is at the individual Court’s discretion. However, if the dispute is about recruitment and it is evident that the person would not have been recruited if the selection had been made without unequal treatment, this compensation shall not exceed three monthly salaries.
Where (sexual) harassment in the workplace is alleged, the AGG also gives the affected employees the right to stop working without loss of pay insofar as this is necessary for their protection and the employer has taken no or only obviously unsuitable measures to protect against it. However, staff should only take advantage of the right to refuse performance after seeking counsel. This can be provided by works or staff councils, equal opportunities commissioners or the in-house complaint board. Advice and support in case of discrimination can also be sought from external agencies. The Federal Anti-Discrimination Agency provides free and unconditional counselling. Click on the link for an overview of other agencies that provide counselling in case of discrimination across Germany (only available in German).
Any violation of the AGG does not justify a claim to the establishment of an employment or vocational training relationship or to promotion.
Employees who assert their rights in the event of discrimination or refuse to carry out discriminatory instructions may not be discriminated against for doing so. The same applies to persons who support the employee herein or who testify as a witness.
nStaff have the right to lodge a complaint with a complaint board when they feel discriminated against by their employer, a superior, another employee or a third party on any discrimination ground. Staff can also turn directly to the works council, where available.
As a result, you are required to set up a complaint board in your company. The designation of the competent unit(s) is a matter for your organisational discretion, there are no statutory requirements here. Consequently, the unit does not necessarily have to be set up from scratch. Official or technical superiors, equal opportunities commissioners or the HR department can take also on this function. Whatever the unit, it is essential that the complaint board be perceived by staff as an independent, objective contact point to turn to with complaints regarding discrimination incidents. The existence of the complaint board must be made known throughout the company and access to it must be as low-threshold as possible and, above all, barrier-free.
You can find more information on how to set up a complaint board in our brochure “Beschwerdestelle und Beschwerdeverfahren nach § 13 AGG” ("complaint board and complaint procedure pursuant to section 13 of the AGG" -only available in German)
Every complaint needs to be looked into. Therefore, you have to carefully examine the complaint and inform the complainant of the result of the examination – wherever possible in writing. The result should be communicated within a reasonable period of time (e.g. two weeks). These cases should be documented, but kept apart from personnel files.
While the wording of the Act only requires you to communicate the result of the complaint, we recommend that you substantiate it, especially in case of rejection.
If a complaint is justified, you must take remedial action. Especially in cases of serious discrimination, you are under the obligation to act immediately. If you take no, or only inappropriate action, the affected employees have the right to stop working without loss of pay if this is necessary for their protection.
A complaint is not subject to time-limits. Employees can also lodge a complaint if the discrimination took place longer ago. Even former staff, such as dismissed employees, or rejected applicants can lodge a complaint under section 13 of the AGG.
If employers fail to comply with their obligations under the AGG, this can have various legal consequences
- The works council can go to court to seek compliance with the organisational and procedural provisions.
- Employer liability for organisational negligence can apply if provisions designed to prevent and avoid discrimination have not been implemented.
- Employers are more likely to be held accountable for staff violations of the AGG in action over damages/compensation, if they have not met their organisational requirements/duties to protect.
- Moreover, should any further violations of the AGG occur, you can be held liable for breaching your duties to protect if a previous complaint was not handled properly.
If a case is brought before the court, the burden of proof as to whether discrimination has occurred first falls on the employee. This means that he or she has to provide circumstantial evidence to suggest that there has been discrimination within the meaning of the AGG. If he or she succeeds in this, you, as their employer, have to prove in turn that the prohibition of discrimination has not been violated.
In the context of an application procedure, for instance, discrimination might be alleged in case of rejection. In this case, the applicant has to present circumstantial evidence to prove why the unequal treatment was based on a discrimination ground. They can do so, for instance, if the vacancy advertisement was not neutrally worded or the letter of regret included reasons that directly or indirectly link to a discrimination ground. If the Court finds that, based on the foregoing, discrimination probably did occur, you then have to be able to provide evidence disproving that the applicant was rejected over a prohibited ground for discrimination. Failing this, you will only not be held liable if you can invoke a justification for unequal treatment that is recognised under the AGG.