Discrimination Rarely Proven Directly
The General Equal Treatment Act (AGG) is intended to protect individuals in employment from discrimination based on characteristics such as ethnic origin, gender, religion or belief, age, or sexual identity.
The challenge for employees: discrimination in the workplace is rarely overt and often hard to prove. That’s why Section 22 AGG offers a procedural advantage – if someone believes they have been discriminated against and wishes to claim damages, it is initially sufficient to present circumstantial evidence indicating possible discrimination.
If these indications support the assumption of disadvantage based on a protected characteristic (e.g., discrimination as a man), the burden of proof shifts: the employer must then demonstrate that the disadvantage had no connection to the characteristic in question or that there was an objective reason for the unequal treatment.
However, this shift in the burden of proof can pose real challenges for employers in AGG proceedings.
Discriminated Against as a Man?
The issue of such circumstantial evidence was at the heart of a case before the Regional Labour Court of Cologne. A fixed-term research associate sued a university for compensation and damages, claiming he had been discriminated against and bullied as a man.
Indeed, the employment relationship had been marked by significant conflicts – although prior attempts to terminate it through warnings and even summary dismissal had failed. In the end, the fixed-term contract was simply not renewed.
Because the decision not to renew the contract was made solely by women, the employee suspected gender-based discrimination. He argued that the frequent disadvantages he experienced – at least from his perspective – constituted clear evidence of discrimination against men.
He therefore filed a claim under Section 15 AGG, seeking compensation and damages.
Disadvantages Plus Protected Characteristic Do Not Equal Evidence
The court dismissed the claim. The judges found no compelling evidence linking the alleged disadvantage to the employee’s gender.
Such evidence is necessary to justify shifting the burden of proof.
Otherwise, every negative decision made by a person of one gender about someone of another could be interpreted as discrimination, leaving employers constantly at risk of legal action – and requiring them to prove non-discrimination in every case.
The court also clarified that it does not constitute discrimination if decision-makers share the same characteristic as the claimant, albeit with reversed roles. Nor is it sufficient to merely combine a series of facts that individually fail to indicate discrimination.
Ultimately, the court found that the mere overlap between negative workplace decisions and a protected characteristic does not suffice to infer discrimination.
Final Assessment
This ruling fundamentally strengthens the position of employers in AGG-related lawsuits, where employees feel unfairly treated and base their claims for damages on alleged discrimination.
However, it must be viewed within the broader context of case law on the subject, which in some instances tends to be more favorable to employees.
What We Can Do for You?
Do you have questions about discrimination law, workplace conflicts, or compliance with the AGG? Do not hesitate to contact us!
Summary of the Key Facts
- The AGG provides for a burden of proof shift in discrimination cases, allowing claimants to initially present only circumstantial evidence.
- However, the mere combination of negative treatment and a protected characteristic is not enough to meet the threshold for discrimination.
- Employers are not required to disprove discrimination merely because individuals of opposite genders are involved in negative decisions.
