In proceedings before the Federal Labour Court (BAG, judgment of 14 June 2023, 8 AZR 313/20), the plaintiff, who was severely disabled, was awarded compensation pursuant to Section 15(2) of the General Equal Treatment Act (AGG).
The defendant employer published a job advertisement to which the plaintiff applied, stating his severe disability. Several months later, he received a rejection letter. The plaintiff suspected discrimination on the basis of his severe disability. He complained of violations by the employer of the procedural and support obligations pursuant to Section 164 (1) sentence 4 and Section 165 sentence 1 SGB IX.
The court assumed that the plaintiff had been directly disadvantaged because of his severe disability, as the employer had not reported the vacancy to the Employment Agency in accordance with Section 164 (1) SGB IX. The court concluded from this that the employer wanted to avoid possible placement proposals and applications from severely disabled people. The employer was unable to demonstrate and prove that reasons other than those specified in Section 1 AGG had led to less favourable treatment.
The fact that the employer in this case was a public sector employer is irrelevant here. The obligation to consult with the Employment Agency does not only apply to the public sector.
The court did not have to decide whether the fact that the representative body for severely disabled employees was not informed directly and specifically about the placement proposals made by the Federal Employment Agency could also constitute evidence of discrimination on the grounds of disability.
Conclusion
If the employer violates procedural and support obligations with regard to a severely disabled applicant, this may indicate discrimination in accordance with Section 22 of the AGG.
Summary of the key facts
- In recruitment procedures, employers must comply with the procedural and support obligations set out in Section 164(1) of SGB IX.
- A violation of these obligations may be considered an indication of discrimination pursuant to Section 22 AGG.
- The employer then bears the burden of proving that reasons other than those specified in Section 1 AGG led to the less favourable treatment of the severely disabled applicant.
