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Salutation in the online store as a violation of the General Equal Treatment Act

A person who does not ascribe to a binary gender identity is disadvantaged if they can only choose between the forms of address "Mrs." and "Mr.". This was decided by the Higher Regional Court of Karlsruhe.

The lawsuit was filed by a person who ordered various items of clothing on a clothing company’s website in 2019. The purchase required a choice between the two forms of address “Mrs.” or “Mr.”. There was no third option or the possibility of not making a selection at all.

Non-binary person felt discriminated against by being addressed as “Mr.” and “Mrs.”

The person wanted to see this as a violation of the General Equal Treatment Act and demanded financial compensation of EUR 2,500 as well as an injunction. 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 direct discrimination against the plaintiff on the grounds of gender is prohibited under the General Equal Treatment Act when establishing a civil law obligation in the context of a so-called mass transaction. However, in the opinion of the Senate, claims for injunctive relief or monetary compensation cannot be successfully asserted.

No right to injunctive relief and compensation despite unlawfulness

In detail, there is a lack of the necessary risk of repetition for a claim for injunctive relief. In the meantime, the defendant company has included the option “Divers/no salutation” in the salutation field in addition to the usual salutations. It has thus ensured a gender-neutral form of address for 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.

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 Karlsruhe Higher Regional Court now clarifies that companies are also not allowed to discriminate against potential customers on the basis of their gender identity. It must be possible for them to fill out an order form truthfully – without misrepresenting their gender.

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