AGG hopping: A financial risk for employers?

The Federal Labour Court recently published the full text of a ruling that is the subject of lively debate: A so-called AGG hopper systematically and purposefully applied to various employers for job advertisements and then claimed compensation for a violation of the ban on discrimination on grounds of gender. Lawyer and labour law specialist Nils Wigger from the law firm Wittig Ünalp explains what employers need to bear in mind and what the risks are.

You regularly read in the press and trade journals about labour court decisions on AGG hoppers who take advantage of the General Equal Treatment Act (AGG for short) and demand considerable compensation claims from employers. Many employers have now had the experience of receiving prefabricated letters with compensation claims and pre-formulated settlement offers following job advertisements.

What are AGG hoppers?

AGG hoppers are people who specifically search the internet on job portals for – possibly – discriminatory job advertisements in order to apply for these advertised positions. The starting points in the job adverts are phrases such as ‘young and dynamic’, ‘native speaker’ or adverts that are only aimed at one gender, such as ‘secretary’. The AGG hoppers specifically look for characteristics that do not apply to them and apply for them. For example, if the AGG hopper is somewhat older, they apply for job advertisements that appeal to ‘young and dynamic employees’. The person’s interest is not to actually get the job, but to assert claims for compensation under the AGG after a (planned) rejection.

Starting point for the claims: The AGG

The AGG hoppers refer to the AGG, which is intended to prevent direct and indirect discrimination based on certain personal characteristics and ensure equal opportunities. The law applies not only to employees, but also to applicants and, according to Sections 1 and 7 AGG, prohibits discrimination against people on the basis of their gender, ethnic origin, religion or ideology, disability, age or sexual orientation.

If the employer violates the aforementioned prohibition of discrimination, the disadvantaged person can assert a claim for damages in accordance with Section 15 para. 1 AGG as well as a claim for compensation due to damage that is not financial loss in accordance with Section 15 para. 2 AGG. If the discrimination relates to non-employment, the compensation may not exceed three months’ salary if the disadvantaged applicant would not have been employed even if he/she had been selected without discrimination. With a gross monthly salary of € 4,000.00 for the advertised position, compensation of up to € 12,000.00 can be considered.

The problem for employers is often that the persons entitled to claim under Section 22 AGG benefit from a reduction in the burden of proof. In this respect, the applicant only has to provide evidence that suggests discrimination on one of the grounds listed in Section 1 AGG. Such a presumption of discrimination therefore generally already applies if the wording in the job advert is potentially discriminatory. The above-mentioned formulations such as ‘young and dynamic’, ‘native speaker’ or ‘secretary’ have already been recognised as evidence by the labour courts.

What can employers do?

In principle, it is still important for employers not to write job advertisements in a discriminatory way and to avoid frowned upon wording as far as possible. If the employer is not sure, it is worth having the advertisement checked by a specialist lawyer for labour law.

However, if the potentially discriminatory advert has already been placed and the employer has received a letter of demand, they must prove that there was no discrimination in the recruitment process or that it was justified in the individual case. The employer can exculpate itself here if it can prove that no characteristic listed in Section 1 AGG was the cause of the applicant’s rejection. The employer may be able to prove this in particular if the applicant is not professionally qualified for the advertised position.

When is there an abuse of rights?

In addition, the employer can also raise the defence of abuse of rights against the applicant’s claim for compensation. This is the case if the applicant has only applied for the job in order to later assert claims for damages and/or compensation.

This objection by the employer also applied in the recent ruling by the Federal Labour Court (BAG, ruling of 19/09/2024 – 8 AZR 21/24). In the case, the plaintiff had applied for numerous non-gender-neutral advertised positions as a ‘secretary’ with various employers. After not being hired in each case, he brought claims for compensation on the grounds of gender discrimination. The Federal Labour Court dismissed the claims, as the pervasive objection of abuse of rights pursuant to Section 242 BGB precludes the claims. The plaintiff had acted systematically and purposefully in order to ‘earn’ an adequate profit through compensation claims without having an interest in obtaining the advertised position.

When examining the abuse of rights, all circumstances of the individual case must be taken into account. This includes all letters from the applicant, his behaviour in connection with his application and a connection with the specific job advertisement.

Compensation for procedural errors

According to the case law of the BAG (see BAG, judgement of 14.06.2023 – 8 AZR 136/22), a breach of procedural and/or support obligations in favour of severely disabled people can also constitute a breach of the AGG. If the employer does not comply with the procedural regulations for severely disabled people, for example the works council’s duty to provide information in accordance with Section 164 (1) sentence 4 SGB IX, this behaviour is generally likely to create the impression of being uninterested in the employment of severely disabled people. This can result in a claim for damages or compensation from the severely disabled applicant.

Are AGG hoppers liable to prosecution?

AGG hopping is not only a risk for the employer, but also for the applicant. If the AGG hopper’s behaviour is aimed solely at obtaining a claim for damages or compensation, this may constitute criminal fraud within the meaning of Section 263 StGB. As the Federal Court of Justice (judgement of 4 May
2022 – 1 StR 3/21) found, the assertion of the claim in court constitutes procedural fraud if the AGG hopper deceives the court about the lack of seriousness of the application and claims
that the application was not made solely to generate claims.

Conclusion

AGG hopping continues to be a relevant topic for employers. They can avoid claims by ensuring that HR managers are adequately trained in dealing with the AGG in order to behave in a non-discriminatory manner.

If a claim is nevertheless made against employers, the claims asserted should be carefully scrutinised to determine whether a claim actually exists. Employers can exculpate themselves here by rebutting the legal presumption of discrimination or by arguing that the claim is an abuse of rights.