German Anti-Discrimination Law (AGG)

The Allgemeines Gleichbehandlungsgesetz

The General Act on Equal Treatment (Allgemeines Gleichbehandlungsgesetz, AGG) entered into force on 18 August 2006, implementing four EU anti-discrimination directives: the Race Equality Directive (2000/43/EC), the Employment Equality Directive (2000/78/EC), the Gender Equality Directive (recast, 2006/54/EC), and the Gender Equality in Goods and Services Directive (2004/113/EC). The AGG replaced the former patchwork of sector-specific anti-discrimination statutes, creating a unified framework for combating discrimination in employment and civil law.

Protected Characteristics

Section 1 AGG establishes the purpose of preventing or eliminating discrimination on grounds of: race or ethnic origin, sex (including gender reassignment), religion or belief, disability, age, and sexual orientation. These six protected characteristics mirror the EU directives exhaustively. The AGG does not cover discrimination on grounds of social status, wealth, political opinion, or other characteristics not listed, though such discrimination may be addressed through other legal avenues.

The concept of race is understood in German law as a social construct; the AGG uses the term to denote discrimination based on racist attributions. The Antidiskriminierungsstelle des Bundes (Federal Anti-Discrimination Agency) has clarified that discrimination against persons with migration background is covered by the ground of ethnic origin. The prohibition of disability discrimination is supplemented by the Ninth Book of the Social Code (Schwerbehindertenrecht), which provides additional protections for severely disabled persons.

Scope of Application

The AGG applies in two main areas: employment and civil law. In employment (Sections 6-18 AGG), the prohibition of discrimination applies to all stages of the employment relationship: recruitment, working conditions, promotion, training, termination, and membership in professional organisations. The employer must take necessary measures to prevent discrimination, including training and the establishment of complaints mechanisms. The AGG applies to both private-sector and public-sector employment.

In civil law (Sections 19-21 AGG), protection against discrimination is limited to mass transactions (Massengeschafte) and contracts where the personal characteristics are typically relevant. Section 19(1) AGG prohibits discrimination in: (1) entering into contracts for the supply of goods or services available to the public (e.g. retail, banking, public transport, housing); (2) insurance contracts (subject to exceptions based on actuarial risk); (3) membership in professional associations, trade unions, and non-profit organisations. Section 19(2) AGG extends protection against discrimination on grounds of race or ethnic origin to all civil law transactions.

Exceptions under Section 20 AGG permit differential treatment where justified by a legitimate purpose and the means are proportionate. Examples include: age-based pricing for public transport or entry fees, sex-specific services for reasons of privacy or safety, and religious requirements for employment by religious organisations. The exceptions are interpreted narrowly.

Burden of Proof

Section 22 AGG establishes a shifted burden of proof (Beweislastumkehr), implementing the EU directives’ requirement. If a person claiming discrimination presents circumstances (Indizien, Tatsachen) that give rise to a presumption of discrimination, the burden shifts to the respondent to prove that no discrimination occurred. The respondent must show that the less favourable treatment was based on objective, non-discriminatory grounds.

The German courts have developed a substantial body of case law on the standard required for establishing a prima facie case. The plaintiff must present concrete facts that indicate discrimination; generalised assertions or statistical evidence alone are insufficient. The employer must then demonstrate a legitimate, non-discriminatory reason for the treatment. The BGH has held that the burden of proof must not be shifted so far as to make the employer’s defence impossible; a proportionate standard applies.

Remedies

Section 15 AGG provides remedies for employment discrimination. The employee may claim: (1) compensation for material damage (Ersatz des materiellen Schadens), including lost income, and (2) compensation for non-material damage (Entschadigung fur immaterielle Schaden), including pain and suffering. The non-material compensation is capped: in case of non-employment (recruitment discrimination), the maximum is three months’ salary (Section 15(2) AGG), unless the applicant would have been hired in the absence of discrimination.

In civil law transactions (Section 21 AGG), the victim may claim: (1) removal of the discriminatory treatment; (2) cessation of future discrimination; (3) compensation for material damage; and (4) non-material damages if the discrimination is not minor. The person refused access to housing, goods, or services may claim damages if the refusal was based on a protected characteristic.

The claimant must raise a complaint with the employer or service provider within two months of becoming aware of the discrimination (Section 15(4) AGG). A complaint to the competent authority (the Antidiskriminierungsstelle) does not substitute for the requirement to assert claims within the statutory limitation periods.

Case Law Development

German courts have developed substantial AGG case law. The BAG (Federal Labour Court) has decided numerous cases on recruitment discrimination, including the use of anonymous recruitment processes, the employer’s obligation to record recruitment decisions, and the requirement to compensate rejected applicants even where the employer had no discriminatory intent (strict liability for non-material damages).

The BGH (Federal Court of Justice) has decided significant cases on civil law discrimination, including: the scope of the “mass transactions” exception; the application of the AGG to housing allocation by municipal authorities; and the requirement for insurance companies to justify actuarial discrimination. In the Schufa case, the BGH held that automated credit scoring must not result in indirect discrimination on grounds of ethnic origin.

The BVerfG (Federal Constitutional Court) has addressed the interaction between the AGG and constitutional equality rights. In its 2014 decision on the exclusion of small employers from the AGG’s protection for disability discrimination, the court held that the legislative choice to exempt employers with fewer than eight employees (Section 23 AGG) was constitutional, as the legislature had a legitimate margin of appreciation. However, the court signalled that the exemption may require review as social conditions evolve.

Relationship with the Grundgesetz

The AGG operates alongside the constitutional equality guarantees of the Basic Law. Article 3 GG provides: (1) “All persons shall be equal before the law”; (2) “Men and women shall have equal rights”; (3) “No person shall be disadvantaged or favoured because of sex, parentage, race, language, homeland and origin, faith, or religious or political opinions. No person shall be disadvantaged because of disability.”

The relationship between the AGG and Article 3 GG follows the general principles of German constitutional law. Article 3 GG is directly binding on public authorities but has no direct horizontal effect (Drittwirkung) between private parties. The AGG fills this gap, providing statutory protection against discrimination in private-sector employment and civil law transactions. The courts interpret the AGG in light of fundamental rights, applying the indirect horizontal effect (mittelbare Drittwirkung) doctrine: private law must be interpreted and applied consistently with constitutional values.

The Federal Anti-Discrimination Agency (Antidiskriminierungsstelle des Bundes, ADS) was established by Section 25 AGG to provide advice and support to persons experiencing discrimination, conduct public awareness campaigns, and report to the Bundestag on the development of anti-discrimination law. The ADS is not an enforcement body; enforcement rests with individuals through the courts, supported by the AGG’s burden of proof rules.