Germany: No Compensation for the Anti-Discrimination Plaintiff

Authors: Verena Braeckeler-Kogel, MAES (Basel) and Meike Christine Rehner

In a court proceeding concerning a compensation claim raised under Section 15 (2) of the German General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz – AGG) by a rejected applicant, the Hamm Regional Labour Court ruled in favour of the employer.

 

Background

It is not uncommon for both courts and employers to be faced with the phenomenon of so-called “AGG hopping.” This describes individuals who submit applications to various employers with the purpose of being rejected and afterwards claim compensation for discrimination, e.g., due to age or gender under the AGG. This law provides for a compensation claim for rejected applicants of up to three monthly salaries for the position they applied for. Furthermore, if the job posting is not fully AGG-compliant, e.g., not gender-neutral, this already indicates discrimination. It is then on the employer to prove a non-discriminatory selection process.

“AGG hoppers” use this structure of the law to routinely claim compensation. In reaction to this phenomenon, the Federal Labour Court has developed criteria for these so-called “AGG hoppers,” in the presence of which the asserted claim for compensation is to be regarded as an abuse of rights. However, the Federal Labour Court places high demands on the assumption of an abuse of rights.

 

Key Issues

Building on the case law of the Federal Labour Court, the Hamm Regional Labour Court developed the “Business Model 2.0” in a further ruling in December 2023. In the case in question, the plaintiff had in the past continuously applied throughout Germany for jobs advertised as “secretary” that were not gender-neutral. The plaintiff did not add any further documents, such as a CV, to the cover letter. He consistently received rejections in response to these letters. The plaintiff subsequently sued the companies that had rejected his application for compensation due to discrimination on the grounds of gender.

After the plaintiff had successfully practiced this procedure for some time, several of his compensation claims were dismissed due to abuse of rights. The plaintiff then changed his subsequent letters slightly. However, he did not attach any further application documents.

In the opinion of the Regional Labour Court, the plaintiff’s claim for compensation was precluded by the objection of abuse of rights. In the past, the plaintiff had systematically and purposefully applied for a large number of jobs that were not advertised in a gender-neutral manner. He had provoked the companies’ rejections by the way he had applied. Rather, the plaintiff had specifically adapted his applications and his behavior for future compensation processes. The result is a “business model” that is now in its second generation. In light of this, the court dismissed the compensation claim.

Practical Points

• Employers are generally advised to formulate job adverts very carefully and monitor the continuous development of case law. For example, the Heilbronn Labour Court ruled in January 2024 that the term “digital native” in a job posting was aimed at applicants from the younger generation and is hence to be seen as an indication of age discrimination.
• A job advertisement that is not formulated in a non-discriminatory manner only gives rise to a presumption of discrimination. Employers can then rebut this presumption by proving that the application procedure was carried out without discrimination. It is not advisable to pay a claim for compensation or accept a settlement offer without prior legal advice.