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No discrimination – Local authority position for equal opportunity officer only open women

June 2018

Germany’s General Act on Equal Treatment, aka the allgemeine Gleichbehandlungsgesetz (AGG), is supposed to protect against discrimination, e.g. on the basis of gender. That being said, exceptions can be made, as demonstrated by a ruling of the Landesarbeitsgericht (LAG) Schleswig-Holstein [Regional Labour Court of Schleswig-Holstein].

Discrimination in the workplace is also meant to be prohibited. The AGG is supposed to afford protection and prevent people from being discriminated against, for example, because of their race, gender, religion or age. We at the commercial law firm GRP Rainer Rechtsanwälte note that for employers this means the need to ensure they use appropriate wording, including when posting job advertisements; if applicants are discriminated against from the outset, they may be entitled to claim compensation.

Having said that, not every instance of discrimination is automatically a violation of the AGG, as is clear from a judgment of the LAG Schleswig-Holstein from November 2, 2017 (Az.: 2 Sa 262 d/17). In the instant case, a district in Schleswig-Holstein had advertised a vacancy for an equal opportunity officer. A man who had applied for the position was rejected, according to the Ministry for Social Affairs, Health, Science and Equality, on the grounds that only women can carry out the role of an equal opportunity officer in the public sector.

The man felt he had been treated unfairly and sued pursuant to the AGG for compensation amounting to three times the monthly salary on account of gender-related discrimination in the application process.

However, the LAG Schleswig-Holstein dismissed the claim. The Court stated that while the plaintiff had indeed been discriminated against because as a man he had no chance of getting the job, this form of discrimination is permissible as the legal framework in Schleswig-Holstein only provides for female equal opportunity officers, and this does not constitute a violation of the requirement for equal treatment; the relevant provisions are designed to eliminate structural disadvantages that are still faced by women to this day. The LAG went on to say that being female is an important prerequisite for a substantial portion of the tasks that go hand in hand with the position of equal opportunity officer.

There is always the possibility of discrimination leading to legal disputes, similar to how dismissal or working hours are frequent points of contention in the workplace. Lawyers who are experienced in the field of labour law can advise employers.

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