A rejection because of age, gender, origin or a disability violates the General Equal Treatment Act (AGG). Affected applicants can, under certain conditions, claim compensation and damages. This guide explains what rights the AGG grants during the application process, what deadlines apply and how to enforce your claims.
What characteristics the AGG protects during the application process
The AGG prohibits disadvantage in working life on the basis of the following characteristics:
| Protected characteristic | Examples |
|---|---|
| Race or ethnic origin | Rejection because of a surname or skin colour |
| Gender | Preference for male applicants, rejection because of pregnancy |
| Religion or belief | Rejection because of wearing a headscarf |
| Disability | Not inviting a severely disabled applicant |
| Age | Job advertisement seeking a young, dynamic team |
| Sexual identity | Rejection because of sexual orientation |
Protection begins as early as the job advertisement. It covers the entire application process, from the wording of the advertisement through the interview to the rejection, and does not require an existing employment relationship.
How to recognise discrimination in a job application
Discrimination in the application process is rarely open. More often, individual phrases or the way the process unfolds provide the decisive clues.
In the job advertisement, wording such as looking for career starters points to disadvantage on grounds of age, and an advertisement such as seeking a female assistant points to disadvantage on grounds of gender. In the interview, inadmissible questions about family planning, religious affiliation, age, pregnancy or disability are among the typical signs.
The process itself can also provide evidence. Public sector employers are obliged under § 165 SGB IX to invite severely disabled applicants to an interview. If the invitation is not sent, that points to disadvantage. The same applies to rejections whose reasoning refers directly or indirectly to a protected characteristic.
Compensation and damages under § 15 AGG
If discrimination has occurred, two claims come into consideration. Damages under § 15 (1) AGG compensate for the loss actually incurred, for example application costs or lost salary. This requires that the employer is responsible for the disadvantage.
Compensation under § 15 (2) AGG offsets the disadvantage suffered, regardless of any specific financial loss. As a rule it amounts to up to three gross monthly salaries if the applicant would not have been hired even without the discrimination. Our AGG compensation calculator (currently available in German only) gives a first estimate of the possible amount in your case.
The AGG grants no right to be hired. Only the financial claims to compensation and damages are enforceable.
Deadlines: two months to assert the claim, three for the lawsuit
The deadlines under the AGG are short and strict:
| Step | Deadline |
|---|---|
| Written assertion of the claim with the employer | 2 months after receipt of the rejection |
| Claim before the labour court | 3 months after the written assertion |
Both are exclusion periods. If either is missed, the claim is irrevocably lost. The two-month period starts when the rejection is received, not on the day of the interview.
Burden of proof under § 22 AGG: which indications are enough
The AGG works with a graduated burden of proof. The applicant must first present indications that suggest discrimination. It is enough if these indications allow the conclusion, with predominant probability, that there was a disadvantage.
If this succeeds, the burden of proof shifts. The employer must then prove that the rejection was not based on a discriminatory ground.
The following are particularly relevant as indications:
- Discriminatory wording in the job advertisement
- Inadmissible questions in the interview
- Failure by a public sector employer to invite a severely disabled applicant
- A rejection referring to a protected characteristic
- Considerable differences in qualifications between the rejected and the hired applicant
Secure possible indications early. These include the job advertisement, correspondence with the employer, the rejection itself and a written record of the interview made from memory.
Special protection for severely disabled applicants
Severely disabled applicants enjoy additional protection. Public sector employers must invite them to an interview unless they are obviously unsuitable for the role (§ 165 SGB IX). Breaching this duty establishes an indication of discrimination.
The employer must also involve the representative body for severely disabled employees in the application process. If this involvement does not happen, that too can be an indication of disadvantage.
Inadmissible questions in the interview
Certain questions may not be asked in an interview:
| Inadmissible | Why |
|---|---|
| Are you pregnant or planning to have children? | Gender discrimination |
| How old are you? | Age discrimination (unless relevant to the job) |
| What religion do you belong to? | Religious discrimination |
| Where do you originally come from? | Discrimination on grounds of ethnic origin |
| Do you have a disability? | Discrimination on grounds of disability |
Where questions are inadmissible you have the right to refuse to answer or even to answer untruthfully, without any disadvantage arising for you.
This article provides general information and does not replace individual legal advice. Every case is different. If you have specific questions, we recommend seeking legal support at an early stage.
