The AGG prohibits employers to discriminate applicants and employees on the grounds of their race, ethnicity, gender, religion, belief, disability, age and sexual orientation. Any form of discrimination — direct as well as indirect discrimination - is banned by the AGG.

The AGG covers all employee related matters during the course of an employment relationship — from the posting of a Job vacancy over the conditions of the employment and the career development, until to the termination of an employment relationship and the terms of social compensation plans.

Under the new law, the unequal treatment of employees can be justified in some cases. For example, the law al so called “positive measures“ aiming at levelling out existing disadvantages based an the grounds named above. Furthermore, the law provides exceptions tor unequal treatment which is due to the requirements of the specific Job. Under this exception it will for example be justified to seek only female models for a fashion show in which ladies wear is presented. Another exception refers to the unequal treatment of persons because of their religion or beliefs. Religious groups are allowed to preferentially hire individuals belonging to their religion. Finally a discrimination based on a person‘s age can also be justified if it is genuine, determining and proportionate, provided that the unequal treatment is aimed at a legitimate aim. The Act itself offers a number of exampies in which a differential treatment based on the person‘s age can be Justified. There are various grounds on which unequal treatment based on a person‘s age is not considered unlawful. These grounds include for example the preferential treatment of older employees in collective redundancies, minimum or maximum ages for the access to pension schemes as well as the establishment of a certain minimum age for specific positions within the company. Saying this, one needs to keep in mind that there 1 no such thing as an automatic justification for differential treatment. This means, that any differential treatment can be subject to a review by an employment law court and therefore lead to severe costs.
Under the AGG, employers are obliged to take the measures necessary for protecting its employees from any discriminatory treatment, including preventive measures such as professional trainings of the own staff in order to enhance the staffs awareness. lt is therefore advisable for employers to undertake mandatory trainings for all their staff in order to make employees aware of the new legislation and the effects connected to this legislation.
Employees having been discriminated to compensation for any financial losses in connection with the discrimination. The amount of this compensation is not capped. An employee who has not been promoted for discriminatory reasons would be entitled to the full difference between his salary and the salary he would have earned if having been promoted.

The employer is responsible for any discriminatory acts committed by its representatives and also by colleagues of the discriminated employee if the discriminating act occurs in connection with the performance of duties. The company can therefore be held liable if a supervisor tells an employee in a review meeting that there will be no promotion due to the fact that the employee is a female in her early 30s and that because of the “risk“ of pregnancy there will be no promotion.

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In addition to the above mentioned entitlement to compensation for material losses suffered by the employee, employees are also entitled to damages for pain suffered from the discrimination. Candidates who have been rejected in a discriminatory manner but who would have been rejected anyway, for example due to unsatisfactory qualifications, are only entitled to a maximum compensation of three months‘ salary.

Employers shall react to cases of discrimination by co-employee. These measures reach from warnings to giving notice to those employees responsible for the discrimination.

Under the AGG employees are entitled to complain about any discriminatory treatment with the competent internal or external authorities. Upon such a complaint, the competent authority shall then investigate the incidence that has lead to the complaint and inform the complaining employee accordingly.
One of the most heavily discussed details of the AGG was probably how to handle the burden of proof with regard to alleged cases of discrimination. Under the AEG, the employee only needs to give proof of an indication of a discrimination. If being able to prove such an indication, its up to the employer to give evidence that no discrimination has occurred.

Among legal experts it is expected that the AGG will have severe effects on the daily business of employers. Employers should in the future ensure that Job interviews as weIl as for example review meetings are documented by the participants. lt might also makes sense to ask a third person to take part in such meetings, so that there is another person that can function as a witness should for example a candidate claim that he/she was being discriminated during a job interview. It is also recommendable to document all relevant decisions with regard to hirings and promotions in order to be able to prove that the turned down candidates have not been accepted on legitimate grounds (job experience, grades etc.).

Another problem in connection with the new legislation is that neither the German courts nor Um lawyers do have any experience with it. Therefore, it will probably take a couple of years before there is legal certainty with regard to the new law.