The complainant was a person who ordered various items of clothing on the website of a clothing company in 2019. The purchase process required a choice between the two forms of address “Ms.” or “Mr.”. A third option or the possibility of not making a selection at all did not exist for the form of address in the clothing company’s online store.
Non-binary person felt discriminated against by being addressed as “Mr.” and “Mrs.”
The person felt that the lack of choice in the form of address in the online store was a violation of the General Equal Treatment Act and demanded financial compensation of 2,500 euros as well as a declaration to cease and desist. However, she was unsuccessful before the Mannheim Regional Court. The court dismissed the claim, which was confirmed by the Higher Regional Court of Karlsruhe in its ruling of December 14, 2021 (A.z.: 24 U 19/21).
It is true that the General Equal Treatment Act prohibits direct discrimination against the plaintiff on the grounds of gender when establishing a civil law obligation in the context of a so-called mass transaction. Nevertheless, in the opinion of the Senate, claims for injunctive relief or monetary compensation cannot be successfully asserted when it comes to the form of address in the online store.
No right to injunctive relief and compensation despite unlawfulness
Specifically, there is a lack of the necessary risk of repetition for a claim for injunctive relief. The defendant company has now included the option “Divers/no salutation” in the salutation field of its online store in addition to the standard salutations. The company has thus introduced a gender-neutral form of address in the online store, thereby ensuring discrimination-free ordering in the future. Further violations of the prohibition of discrimination are therefore no longer seriously to be expected.
The plaintiff is also not entitled to monetary compensation. This is because not every violation of the general right of personality triggers a claim for monetary compensation. Rather, what is required is a serious violation of the prohibition of discrimination that reaches a certain intensity of disparagement and disregard. However, these requirements were not met in the individual case, according to the court. The degree of culpability of the accused company was also low. The ruling on the form of address in the online store shows that a mere impairment is not sufficient to enforce claims for compensation.
Companies must not discriminate against potential customers
Back in 2017, the Federal Constitutional Court ruled that the binary selection options in the birth register discriminate against intersex people. The decision by the Higher Regional Court of Karlsruhe now clarifies that companies may not discriminate against potential customers on the basis of their gender identity. Companies must ensure that they offer a non-discriminatory selection, particularly when addressing customers in online stores. It must be possible for customers to fill out an order form truthfully – without being forced to state their gender incorrectly.
What companies should pay attention to when addressing customers in online stores
For companies that operate an online store, it is essential to comply with the legal requirements regarding the equal treatment of their customers. The decision shows that companies should pay more attention to a gender-neutral form of address in the online store in order to avoid legal conflicts. By offering options such as “diverse” or “not specified”, they can ensure a non-discriminatory user experience and fulfill their duty of equal treatment.
Why a neutral form of address in the online store is important for companies
The introduction of a neutral form of address in online stores is not only important from a legal perspective, but also for strategic marketing reasons. Customers increasingly expect their identity to be respected and recognized, especially in the digital space. A flexible and inclusive salutation option not only creates trust, but also signals a modern and respectful corporate image. Companies that rely on a variety of salutation options stand out positively from their competitors and show that they take the needs of a diverse customer base seriously. In times of increasing sensitivity to social and societal issues, adapting the form of address in the online store can therefore also have a direct impact on customer satisfaction and long-term customer loyalty.
Legal risks in the event of inadequate salutation in the online store
Companies that only offer limited options such as “Mr.” or “Mrs.” when addressing customers in their online store run the risk of violating the General Equal Treatment Act (AGG) and exposing themselves to legal risks. A lack of choice for non-binary people can be seen as discrimination and potentially result in claims for damages and injunctive relief. The decision of the Higher Regional Court of Karlsruhe makes it clear that a restrictive choice of salutation can be interpreted as discrimination, which could lead to serious financial and reputational consequences, particularly for companies in e-commerce. By using a comprehensive and neutral form of address in the online store, companies can therefore avoid legal conflicts and at the same time set an example for inclusion and openness.
