„We are looking for a sporty Asian woman with a clothing size up to 36 for our young team. If you are younger than 24, non-denominational and open to the Marxist-Leninist idea, we look forward to receiving your detailed application with a full-body photo.“

Of course, this is not possible – and is probably really rare in this form.
The General Equal Treatment Act (AGG) prohibits discrimination on the grounds of ethnic origin, age or disability, for example.
This starts with the job advertisement.
In the event of violations, rejected applicants may be able to claim compensation.
Resourceful minds sense an opportunity and respond en masse to job advertisements that offer evidence of discrimination.
If they are actually only after compensation, they are referred to as AGG hoppers.
This can sometimes be a major nuisance for the employers concerned and can cost a lot of time, nerves and money.

Discrimination not permitted

The AGG is strict.
Discrimination on the grounds of gender, religion and ideology, disability, age or sexual identity is to be prevented.
Courts repeatedly deal with the (actual or alleged) discrimination of applicants.
This does not necessarily have to be triggered by a crude job advertisement, as exaggerated here at the beginning.
There may already be indications of age discrimination if the employer explicitly addresses the job advertisement only to applicants in their first year of employment.
The requirement to be able to speak fluent German can also constitute discrimination on the grounds of ethnic origin, depending on the nature of the position.
Finally, the selection procedure or a rejection letter may contain indications that one of the frowned upon characteristics is in fact the reason for the rejection.

If an applicant can provide evidence of discrimination that is not permitted under the AGG, it can be expensive for employers.
The AGG provides for a claim for compensation by the rejected applicant (Section 15 (1) AGG).
Up to 3 months‘ salary is due if the applicant would not have been hired even if they had been selected without discrimination.
Otherwise, the compensation could be even higher.

AGG hopping also not permitted

It is obviously not in the spirit of the law for professional AGG hoppers to focus their business model on compensation payments and to bring lawsuits against employers en masse.
This has also been recognized by case law.
In 2016, the European Court of Justice (ECJ) ruled that an applicant who is not actually aiming for the job, but only for the compensation payment under the AGG, cannot demand payment.
The EU Directive, on which the AGG is based, protects applicants.
Anyone who only has the compensation in mind is not an applicant, but is abusing the law.
In order to be an applicant, one must strive for access to employment.

The Federal Labor Court (BAG) had referred the case to the ECJ.
A lawyer with several years of professional experience had applied for a trainee position in an insurance company and had been rejected.
The job advertisement was expressly aimed only at young professionals who had completed their studies no more than one year previously – possibly discrimination on the grounds of age.
Due to a whole series of inconsistencies in the course of the application process, the BAG, like the lower courts, came to the conclusion that the lawyer had not been aiming for the job at all, but only for the compensation.
It was not clear to the BAG whether this was sufficient to deny the applicant compensation.
The ECJ helped and ruled against the compensation.
In all likelihood, the BAG will follow suit and dismiss the AGG hopper’s claim.

In reality, much remains unclear

At first glance, this is a positive decision for the employer who has to deal with an AGG hopper.
The courts of first instance can invoke this and reject compensation.
However, the crux of the matter lies in the distribution of the burden of proof in the process: the applicant must initially only prove circumstantial evidence that speaks for discrimination.
Recently, the Federal Labor Court has at least required that the circumstantial evidence must be „overwhelmingly likely“ to indicate discrimination (see Federal Labor Court, judgment of 26.01.2017 – 8 AZR 736/15).
But – crucially – the employer must convince the court that the applicant is actually an AGG hopper, i.e. only has compensation in mind.
The main hurdle is that the applicant’s motives are initially in their head.
If he behaves cleverly, it will be difficult for the employer.
As a rule, they do not know the applicant and will have difficulty proving it.

The ECJ’s decision only provides him with very rough guidance as to what is ultimately important.
The labor courts will continue to be called upon here.
An indication of AGG hopping may be that the applicant simultaneously initiates a large number of proceedings which, in the best case, also relate to completely different job profiles.

Objective suitability not relevant

However, the employer cannot use the argument that the applicant is not suitable for the advertised position based on their profile.
In another case, the BAG ruled that a claim for compensation cannot fail simply because the applicant does not meet the required qualifications (see BAG, judgment of 19.05.2016 – 8 AZR 470/14).
Again, the case concerned a lawyer.
He was unable to provide the grades required by the employer and was rejected (probably for this reason, among others).
The BAG ruled that the group of applicants protected by the AGG should not be defined too narrowly.
Otherwise, the level of protection would be lowered too far.
If only applicants who met the objective criteria set by the employer itself could invoke the protection of the AGG, it would be practically impossible to enforce the applicant’s rights.
This is because the employer’s criteria can only be reviewed to a very limited extent.
However, the BAG also ruled that the lack of suitability could certainly be an indication that the applicant is an AGG hopper and is really only after the compensation.
It referred the case back to the Regional Labor Court (LAG).
There, the employer will now have the difficult task of proving that the candidate was not serious with his application.

Conclusion

AGG hopping will continue to occupy the courts.
The ECJ’s decision at least provides legal clarity and expressly recognizes AGG hopping as an abuse of rights.
In fact, however, many questions remain unanswered that cannot be answered in general terms.
As is so often the case in employment law, it will depend on the individual case.
With the help of the courts of lower instances, an extensive casuistry may develop over the years.
Employers will have to keep an eye on the decisions of the labor courts and regional labor courts in order to be able to effectively defend themselves against complaints from AGG hoppers.
Employers should also critically scrutinize their recruitment process, from the job advertisement to the selection procedure to hiring, and make it as non-discriminatory as possible.
In this way, they reduce the risk of falling into the hands of an AGG hopper. If you would like to know more, please contact us.
We will advise you and take a close look at your processes.