Discrimination in the workplace is not a marginal issue, but a real liability risk for employers. Even unfortunate wording in a job advertisement or an unintentionally discriminatory statement in the application process can be enough to trigger claims for compensation. The General Equal Treatment Act (AGG) obliges employers to treat applicants and employees fairly, objectively and without discrimination.

Why equal treatment is so important in employment law

Equal treatment in the workplace does not mean that employers must always treat all employees equally. Differences are permitted if there are objective reasons for them. However, it becomes inadmissible if people are treated less favorably because of personal characteristics that are protected by the General Equal Treatment Act (AGG).

The AGG prohibits discrimination in particular on the grounds of ethnic origin, gender, religion or belief, disability, age or sexual identity. This protection does not only apply to the existing employment relationship, but also to the job advertisement and the application process. We have gone into more detail elsewhere on how this applies specifically to disability as a protected characteristic.

The AGG simply explained

The AGG is intended to prevent applicants or employees from being disadvantaged for unobjective reasons. Employers must therefore base personnel decisions on objective criteria, such as qualifications, professional experience, professional suitability or performance.

Discrimination can occur openly, for example through a direct rejection due to a protected characteristic. However, it can also occur indirectly if an apparently neutral rule puts certain groups of people at a particular disadvantage and there is no objective reason for this. Harassment and sexual harassment can also fall under the AGG.

Risks start with the job advertisement

Many mistakes are made before the first interview. Job advertisements must be formulated neutrally and must not exclude or favor any particular group. Formulations that are linked to age, gender, origin or other protected characteristics are problematic.

The Federal Labor Court(BAG, judgment of August 19, 2010, 8 AZR 530/09) has ruled that a job advertisement may violate the prohibition of age discrimination if a “young” applicant is expressly sought. Such formulations can later be interpreted as an indication of discrimination. Employers should therefore clearly align requirements with the job and use non-discriminatory terms.

Statements made during the application process can also have consequences

Not only written decisions are relevant. Statements made during the application process or public statements made by a company can also trigger legal risks. The European Court of Justice clarified in the “Feryn” case(ECJ, judgment of July 10, 2008, C-54/07) that even discriminatory statements in connection with recruitment can be problematic.

For employers, this means that managers, HR managers and management should communicate particularly carefully during the application process. It is crucial that selection decisions are comprehensibly based on objective criteria.

Why good documentation is important

In the event of a dispute, applicants or employees must first present facts that give rise to a presumption of discrimination. If this is successful, the employer must demonstrate that there has been no violation of the AGG(Section 22 AGG). This is why proper documentation is so important.

Employers should record why a person was hired, promoted or rejected. Standardized assessment criteria, structured job interviews and comprehensible decision notes are helpful. This makes it easier to explain later that objective reasons were the deciding factor.

Typical AGG violations in everyday working life

AGG violations often occur due to carelessness. These include inadmissible questions in job interviews, derogatory remarks, different working conditions without an objective reason or discrimination in terms of promotion, further training or remuneration.

Dealing with complaints is also important. Employers must protect employees from discrimination and seriously follow up on complaints. Those who ignore complaints not only risk legal claims, but also a loss of trust in the company.

What employers should specifically consider

Employers should actively organize equal treatment. This includes non-discriminatory job advertisements, clear selection criteria, trained managers and an internal complaints office. Personnel decisions should not be made on instinct, but should be objectively justified and recorded.

If an incident occurs, the employer should react quickly, investigate the facts and take appropriate action. In this way, conflicts can often be limited at an early stage and legal risks reduced.

What consequences violations can have

Violations of the AGG can trigger claims for damages and compensation. A discriminatory selection process can be particularly problematic in the application process. The employer does not necessarily have to have acted intentionally.

In addition to financial consequences, there is also the threat of reputational damage. Allegations of discrimination can significantly damage the trust of employees, applicants and business partners.

Equal treatment as part of good corporate governance

Equal treatment is not just a formality. Employers who create clear rules, make objective decisions and communicate respectfully protect themselves from legal risks and strengthen their employer brand at the same time. A non-discriminatory workplace is therefore not only a legal obligation, but also an expression of responsible leadership.