Anti-discrimination law: Candidate claims to be brought against employer, not recruiter

The German Federal Labour Court (Bundesarbeitsgericht, BAG) ruled on January 23, 2014 (docket number – 8 AZR 118/13) that claims for compensation concerning moral prejudice due to violation of the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, AGG) can only be brought against the prospective employer and not the recruitment agency, even if it is not clear whether the agency is acting as an independent recruiter.

In the case at hand, the claimant sued the recruitment agency for compensation, claiming that he had been discriminated against when his job application was rejected by the recruiter. Neither the job offer nor the correspondence between the candidate and the recruiter made it clear whether the open position was with the employer or the recruitment agency.

Even though the Federal Labour Court did not comment on whether the claimant had actually been discriminated against, it ruled that claims for compensation under section 15 paragraph 2 of the General Equal Treatment Act can only be directed against the prospective employer. Hence the direct claim against the recruitment agency was unsuccessful. However, the court was not asked to rule on whether there might be other possible claims against the recruiter. Such claims could involve direct claims for information about the identity of the potential employer, tort, or regress claims by the employer.