Federal Labour Court, 25.04.2013, Ref.: 8 AZR 287/08
The General Equal Treatment Act implements four European equal treatment directives in Germany. In particular, the AGG is intended to provide protection against discrimination in the area of professional or economic life.
Before the AGG was passed in August 2006, employees were protected against discrimination in the workplace by the following legal bases, among others:
- Section 611a of the German Civil Code (BGB), which has now been repealed, was intended to ensure equal treatment of the sexes in the employment relationship.
- Section 612 III of the German Civil Code (BGB), which has also been repealed, stipulated that in an employment relationship, lower remuneration could not be agreed for the same or equivalent work than for an employee of the opposite sex because of the employee's gender.
- The still existing § 81 SGB IX ensures that severely disabled employees are not discriminated against compared to non-disabled employees.
All of these protected interests have been covered by the General Equal Treatment Act since 2006:
In order to prove discrimination, the employee/applicant must provide evidence that suggests discrimination on one of the grounds listed in Section 1 AGG.
The employer must then prove that there was no violation of the prohibition of discrimination.
In the above-mentioned judgement of the Federal Labour Court, it had to deal with the question of whether the plaintiff had a claim against the defendant as to whether the latter had recruited another applicant and, if so, on the basis of which criteria this recruitment had taken place.
Case Background
The plaintiff, born in 1961 in the former Russian Soviet Federative Socialist Republic (SSR), applied for an advertised position as a software developer with the defendant in 2006. After she did not receive an invitation to an interview, the plaintiff contacted the defendant with a request for information as to whether another applicant had been hired and which criteria were decisive in the selection process. However, the defendant refused to provide any information.
Claim for compensation due to discrimination
The plaintiff felt discriminated against due to her gender, age and origin and argued that she fulfilled the requirements of the advertised position. She filed a lawsuit against the defendant and demanded appropriate monetary compensation, as in her opinion she was not invited to an interview in violation of the General Equal Treatment Act (AGG).
Decision of the Federal Labour Court and ECJ
The Federal Labour Court (BAG) confirmed the judgements of the lower courts, which had dismissed the plaintiff's claim. The plaintiff was not entitled to information or compensation. The BAG based its decision on a ruling by the European Court of Justice (ECJ) from 19 April 2012 (C-415/10). The Court ruled that Community law does not grant a right to information about the reasons for the rejection of an application. However, the refusal of information by the employer could, under certain circumstances, be interpreted as an indication of possible discrimination.
Despite this ECJ ruling, the plaintiff's action was unsuccessful, as she was unable to provide sufficient evidence of discrimination to justify a reversal of the burden of proof under Section 22 AGG.
Conclusion: No sufficient evidence of discrimination
The Federal Labour Court clarified that the mere refusal to provide information by the employer does not give rise to a presumption of unlawful discrimination pursuant to Section 7 AGG. The plaintiff was unable to provide any conclusive evidence of discrimination based on her gender, age or origin. The claim for compensation was therefore unsuccessful.
In summary, the Federal Labour Court ruled that there was neither a right to information nor a right to compensation under the AGG.
Source: Federal Labor Court
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