Discrimination

Presumption of Discrimination due to Gender in Equal Pay Claims

By Dr. Henriette Norda LL.M. / 25 January 2021 25 January 2021 / Discrimination, Equal Treatment, Remuneration

If a woman’s pay is lower than the comparative pay of her male colleagues, there is a rebuttable presumption of discrimination due to gender. The Problem According to the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz), discrimination on the basis of certain characteristics is unlawful. However, it is often impossible for the person discriminated against to …

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Occupational Pensions: Exclusion of survivor’s pension in case of marriage after early retirement

By Georg Haberkorn / 10 August 2020 10 August 2020 / Benefits, Discrimination, Pension

By judgment of 3 June 2020 (docket number: 3 AZR 226/19) the Federal Labour Court (Bundesarbeitsgericht – BAG) has ruled that the exclusion of a survivor’s pension is justified if the pension plan provides for full pension benefits in the event of early retirement on reaching the age of 50 and if the marriage was …

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The end of special rights for the church?

By Dr. Henriette Norda LL.M. / 16 July 2019 28 November 2019 / Discrimination, Dismissal

The problem Equal treatment is not only becoming more and more important since #metoo a few years ago, but has influenced the European Union for nearly 20 years. On June 2000 the Council Directive 2000/43/ implemented the principle of equal treatment between persons irrespective of racial or ethnic origin into European Law. Since then more …

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Job advertisements asking for church membership tend to be discriminatory

By Thomas Wiedmann / 6 March 2019 11 June 2019 / Discrimination, Religious Belief

In a judgment dated 25 October 2018 the Federal Labour Court (docket number 8 AZR 501/14) ruled that religious employers are no longer allowed to ask all applicants for membership of a Christian church in job advertisements. Unequal treatment on grounds of religion is only permissible if, according to the nature of the activities or …

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Occupational Pensions: Federal Labour Court confirmed its ruling with respect to so-called “age difference clauses” in pension arrangements

By Georg Haberkorn / 21 December 2018 11 June 2019 / Benefits, Discrimination, Pension

By judgment of 11 December 2018 (docket number: 3 400/17) the Federal Labour Court has ruled that a so-called “age difference clause” (Altersabstandsklausel) providing that a survivor’s benefit is reduced if the age difference between the spouses is more than 10 years is admissible and is not to be considered as unjustified discrimination on grounds …

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Good news for parents? – Interpretation of social plan severance provisions

By Rodrigo Weihermann / 9 October 2018 11 June 2019 / Discrimination, Equal Treatment, Parental Leave, Part-Time Work, Remuneration, Uncategorized

If, in a social compensation plan, the severance payment calculation is based solely on the gross monthly basic salary of a single reference month, the decisive salary of employees who work part-time in that month during their parental leave, is the gross monthly basic salary which they would have been entitled to under their employment …

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Addressing applicants “who are about to graduate”, asking for “very good German and English language skills” as well as a description of being a “young, dynamic company” is in general non-discriminatory

By Thomas Wiedmann / 24 July 2018 11 June 2019 / burden of proof, Compliance, Discrimination, Equal Treatment

On 23 November 2017 the Federal Labour Court (Bundesarbeitsgericht, BAG) ruled in two parallel proceedings, each with the same plaintiff, on compensation claims for an alleged infringement of the principle of non-discrimination under the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, AGG) on the basis of two job advertisements. The first position required a completed degree, …

Addressing applicants “who are about to graduate”, asking for “very good German and English language skills” as well as a description of being a “young, dynamic company” is in general non-discriminatory Read More »

Limitation of the extension of an employment relationship beyond the statutory age limit is permissible

By Volker von Alvensleben / 5 April 2018 11 June 2019 / Discrimination, Fixed-term employment

The European Court of Justice has ruled that the limitation of the extension of an employment relationship beyond the statutory age limit is permissible and does not constitutes an abuse of fixed-term employment contracts. The case: A teacher in Bremen had reached the statutory retirement age and, according to the applicable collective bargaining agreement, the …

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Occupational Pensions: Legitimacy of so-called “age difference clauses” in pension arrangements

By Georg Haberkorn / 8 March 2018 11 June 2019 / Benefits, Discrimination, Pension

By judgment of 20.02.2018 (3 AZR 43/17) the Federal Labour Court has ruled that a so-called “age difference clause” (Altersabstandsklausel) providing that spouses receive a survivor’s benefit only if they are no more than 15 years younger than the deceased former employee is admissible. The plaintiff was born in 1968. She married her husband, …

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Commencement of the „two months period“ for asserting claims for damages due to a violation of the General Act on Equal Treatment

By Nils Grunicke / 29 December 2017 11 June 2019 / Damages, Discrimination

On 29 June 2017 the Federal Labour Court ruled that a “rejection of an application” by a company requires an explicit or implied statement from the company that can be interpreted by the applicant in the way that his application was not successful. Only if such statement is received the two months period for asserting …

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Size (doesn’t) matter – Minimum size for police officers discriminates women

By Tom Stiebert / 20 October 2017 11 June 2019 / Discrimination

The ECJ ruled in a judgment on 18 October that a uniform minimum size as a requirement for men and women to get a job is inadmissible (docket number C-409/16). A Greek court had asked the ECJ whether “a height (in the case of men and women) of at least 1.70m”, is compatible with Directive …

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Age 60 as a legitimate reason to terminate a service relationship with a managing director

By Dr. Kai Bodenstedt LL.M. / 29 August 2017 11 June 2019 / Discrimination, Executives

The attainment of age 60 can be agreed as an age limit in a service agreement allowing for the termination of the contract. This was decided by the Hamm Higher Regional Court in a judgment dated 19 June 2017, docket number 8 U 18/17. Such an age limit does not violate the General Equal Treatment …

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Discriminatory job advertisement – No claim for damages if applicant was not “seriously” applying for the job

By Florian Jeske / 18 August 2017 11 June 2019 / Damages, Discrimination, Equal Treatment

If an applicant applies for a job solely to bring a claim then he will have no claim for damages, even if the job advertisement violates the General Act on Equal Treatment (judgement of the Munich labour court dated 24 November 2016, docket number 173 C 8860/16). A company advertised a voluntary job at a …

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New to age limits: What is allowed, what is not allowed?

By Tom Stiebert / 28 July 2017 11 June 2019 / Discrimination, Employment contract

Age limits remain a permanent issue in employment law in Europe. They come into play in different ways: On the one hand, as a maximum age limit for the commencement of a particular career; on the other hand – even more relevant – as an age limit at which the employment relationship automatically terminates. A …

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Change of jurisdiction of the Federal Labour Court of Germany: Consequence of unauthorized instructions

By Tom Stiebert / 29 June 2017 11 June 2019 / Discrimination, instructions

Of central importance in German labour law is the right of the employer to issue instructions to employees with regard to the content, location and time of the work (sec 106 of the German Trade Regulation Act “Gewerbeordnung”). If admissible instructions are given, the employee is obliged to follow them. If he does not follow …

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