AGG + EU Pay Transparency Guide 2026: Duties, Sanctions, Practice

This guide is the overall overview in the AGG and Pay Transparency topic area. It sets out the scope of protection, duties, burden of proof, legal consequences and the status of the Pay Transparency Directive, and refers to the specialist articles for depth. The main part describes the German legal position; for Austria the GlBG applies, covered in its own section at the end.

What is the AGG?

The German General Equal Treatment Act (AGG) entered into force on 18.08.2006. Under § 1, its aim is to prevent or eliminate disadvantage on grounds of race or ethnic origin, gender, religion or belief, disability, age or sexual identity. The European framework is formed by the equal treatment directives 2000/43/EC, 2000/78/EC, 2004/113/EC and 2006/54/EC.

Where the prohibition of disadvantage applies is governed by § 2(1) AGG. For employers, the main areas are:

• access to employment, including selection criteria and recruitment conditions, as well as promotion (no. 1)
• employment and working conditions, including pay and dismissal conditions (no. 2)
• vocational training, further training, retraining and practical work experience (no. 3)
• membership of and involvement in employee and employer organisations (no. 4)

In addition, the Act covers social protection, education and access to goods and services available to the public (nos. 5 to 8, for civil-law transactions § 19 AGG). For dismissals, § 2(4) AGG refers to general and special protection against dismissal; how discrimination issues are examined there is shown in AGG Termination: 5 Discrimination Cases from BAG.

Who is protected and who is bound

Employees are workers, persons employed for their vocational training and persons similar to employees; applicants and persons whose employment relationship has ended also count as employees (§ 6(1) AGG). An employer is any natural or legal person and any partnership with legal capacity that employs such persons; where employees are hired out, the third party for whom they work also counts as employer (§ 6(2) AGG). For self-employed persons and members of governing bodies such as managing directors and board members, the rules on access to employment and promotion apply accordingly (§ 6(3) AGG). The Act sets no minimum number of employees.

The protected grounds (§ 1 AGG) and the forms of disadvantage

§ 3 AGG distinguishes five forms of disadvantage; the terms are explained in more depth in the glossary entries on indirect discrimination and harassment.

The prohibition of disadvantage also applies where the acting person merely assumes that the ground is present; agreements that infringe it are invalid (§ 7(1) and (2) AGG). Different treatment is justified only within narrow limits: where there is a genuine and determining occupational requirement (§ 8(1)), on grounds of religion in religious communities and their institutions (§ 9) or on grounds of age where it is objective, appropriate and justified by a legitimate aim (§ 10); in addition, positive measures intended to prevent or compensate for existing disadvantages on a ground under § 1 are permitted (§ 5 AGG).

Three lessons from practice

• The wording counts: phrases such as “young, dynamic team” refer to a protected ground and can serve as an indication under § 22 AGG in a dispute.
• Neutrality rules only if applied consistently: anyone who restricts religious or philosophical signs at the workplace must apply the rule in a general and undifferentiated way. The CJEU line (including C-804/18 and C-341/19 of 15.07.2021) and § 9 AGG are explained in AGG and Tendency Employers.
• Customer preferences do not replace an occupational requirement: notes such as “does not fit our clientele” do not name a requirement within the meaning of § 8(1) AGG but themselves provide an indication. Further constellations: AGG Top 6 Discrimination Traps 2026.

§ 22 AGG: the burden-of-proof rule in practice

The wording of § 22 AGG, in translation: “If in a dispute one party proves indications that suggest a disadvantage on one of the grounds referred to in § 1, the other party bears the burden of proving that there has been no infringement of the provisions on protection against disadvantage.”

Practical consequence: the claimant must prove indications, not the disadvantage itself, for example the wording of an advertisement, a rejection despite meeting the requirements or a reason for rejection that refers to a protected ground. The employer must then prove that its decision was based on reasons unrelated to any protected ground. On pay, the Federal Labour Court (BAG) has held: if a woman's pay is below the comparator pay (median) of the male comparators communicated under §§ 10 et seq. EntgTranspG, this as a rule gives rise to the rebuttable presumption of a disadvantage on grounds of gender (BAG, judgment of 21.01.2021, 8 AZR 488/19).

This yields the most important organisational rule of this guide: every selection and pay decision is documented so that it can be reconstructed later, with a requirements profile before screening, structured interviews, evaluation forms, objective reasons and filing for the duration of the deadlines. The compensation claim has limits: a person who applies without a serious intention to be hired in order to obtain compensation may face the objection of abuse of rights; the employer must establish the circumstances for this (BAG, judgment of 19.09.2024, 8 AZR 21/24). In more depth: § 22 AGG: Burden of Proof Reversal in Discrimination Cases and the glossary entry Section 22 AGG — Reversal of Burden of Proof.

Employer duties under §§ 11 to 13 AGG

Job advertisement (§ 11 AGG)

§ 11 AGG does not prescribe a specific formula. “m/f/d” or a neutral job title are the usual route, but cover only the ground of gender. Four core rules: a gender-neutral job title (Job Posting (AGG-Compliant)); no age references unless § 10 AGG exceptionally supports them; language requirements related to the level needed for the work, not to origin; physical requirements only where the work objectively demands them (§ 3(2), § 8(1) AGG). The full checklist is in the Job Posting Audit Checklist: 25 Points AGG-Compliant; a single advertisement can be checked with the Job Posting Audit.

Complaints office (§ 13 AGG) and publication (§ 12(5) AGG)

Employees may complain to the competent bodies of the establishment, the company or the public authority; the complaint must be examined and the outcome communicated (§ 13(1) AGG). What must be made known is the Act, § 61b ArbGG and the information about the competent body, by notice, by display or through the information and communication technology customary in the establishment (§ 12(5) AGG). The Act does not prescribe access channels, staffing or processing deadlines; several routes (in writing, orally, in person) are a practical recommendation. The procedure is described in AGG Complaints Office: 6-Step Workflow, the term in the glossary entry Complaints Office (Section 13 AGG).

Training under § 12(2) AGG

The employer should, in a suitable manner and in particular as part of vocational training and further training, point out that disadvantage is unlawful. If it has trained its employees in a suitable manner, this counts as fulfilment of its duties under § 12(1) AGG. This is a rule of exoneration: the AGG prescribes no frequency, minimum duration or test. There is no supervisory authority for the AGG that checks training or imposes fines; the Federal Anti-Discrimination Agency advises and supports those affected (§§ 25, 27 AGG).

Practical recommendation: training on joining and an annual refresher, in more depth for managers, recruiting and the complaints office; content at least §§ 1, 3, 13, 16 and 22 AGG; a proof of participation for each person with which the training can be evidenced in a dispute (glossary entry Section 12 AGG). The Anti-Discrimination e-learning course covers this content in eight chapters (around 50 minutes) with a final test (12 questions from a pool of 70) and a certificate of participation with a verification code, as an HTML file or SCORM package (1.2/2004) for your own LMS, from EUR 490 net.

Recruitment procedure: risk phases, applicant data, retention

Three phases with increased risk

• Pre-selection: anyone who screens CVs without criteria set in advance cannot later prove that the rejection was based on objective reasons.
• Interview: spontaneous questions easily stray into areas related to § 1, such as family planning or religion. A uniform set of questions largely rules this out.
• Rejection: a detailed reason offers points of reference for indications. A brief, standardised rejection has proved effective; the objective reason is kept internally on file.

Public employers invite severely disabled applicants to an interview unless professional suitability is obviously lacking (§ 165 sentences 3 and 4 SGB IX); this duty to invite does not apply to private employers. Details: Hiring Severely Disabled Employees: Section 165 SGB IX + AGG.

Applicant data and the GDPR

• Legal basis: Art. 6(1) GDPR, supplemented in the employment context by § 26 BDSG. Anyone keeping documents in a talent pool beyond the procedure bases this in practice on consent (Art. 6(1)(a) GDPR).
• Special categories: do not actively ask for information on ethnic origin, religion, health or sexual orientation (Art. 9(1) GDPR); file information disclosed voluntarily separately and with restricted access.
• Access: rejected applicants may request access under Art. 15 GDPR, including to internal notes. Therefore record only objective reasons.

Retention: deadlines instead of a flat figure

There is no statutory retention period for application documents. Arithmetically, the two deadlines add up to just over five months from receipt of the rejection, plus a buffer for receipt and processing. Many employers therefore set around six months and erase afterwards if no claims have been asserted. This is a derived practice duration, not a statutory deadline.

Damages and sanctions

The AGG relies on civil-law claims of those affected, not on sanctions imposed by authorities.

And the fines? The AGG provides for no fine imposed by an authority. Fines relating to pay only come via the Pay Transparency Directive: Member States must lay down effective, proportionate and dissuasive penalties, including fines, under national law (Art. 23 Directive 2023/970); this only takes effect with a transposing act. Art. 25 of the Directive governs protection against victimisation, not the penalties. In Austria, the GlBG already provides for a fine for job advertisements that infringe the requirement of gender-neutral advertising (see the Austria section). More in the glossary entry AGG Employer Liability.

Pay Transparency Directive (EU) 2023/970: status and preparation

Under Art. 34(1), the Pay Transparency Directive (EU) 2023/970 had to be transposed by 07.06.2026. It does not bind employers directly but only via national law. In Germany, as at 17.08.2026 there was no draft bill; according to the Federal Government's answer of 08.07.2026 (Bundestag printed paper 21/7026), the lead Federal Ministry for Education, Family Affairs, Senior Citizens, Women and Youth is still clarifying individual questions, after which the legislative procedure is to begin. In Austria there was no federal act; petition 2/PET (XXVIII. GP) has been assigned to the Committee on Labour and Social Affairs, and deliberations have not begun.

The Directive has two strands of duties. First, transparency: state the starting pay or its range and do not ask about previous pay history (Art. 5(1) and (2)), make pay criteria accessible (Art. 6) and fulfil a right to information without a size threshold within two months, about which workers must be informed annually (Art. 7(1), (3) and (4)). Second, reporting and joint pay assessment (Art. 9 and 10). Anyone who does not fulfil these duties bears the burden of proof in proceedings concerning pay discrimination, unless the infringement was manifestly unintentional and minor (Art. 18(2)).

A joint pay assessment applies only to employers subject to reporting and only where three conditions are met together: a difference in average pay level of at least 5% in a category of workers, no justification on the basis of objective, gender-neutral criteria and no remedy within six months of the date of reporting (Art. 10(1)). Until transposition, Germany applies the Pay Transparency Act (EntgTranspG), with the right to information in establishments with as a rule more than 200 employees (§§ 10 to 12) and the report for employers with as a rule more than 500 employees that are obliged to prepare a management report (§§ 21, 22). In Austria, the income report every two years applies from permanently more than 150 employees (§ 11a in conjunction with § 63(6) GlBG).

The details are in the article EU Pay Transparency Directive 2023/970: obligations, thresholds, templates (transposition status in the section Transposition status in Germany and Austria). A response template is offered by EU Pay Transparency: Right to Information on Pay — Response Template, the methodology of the joint assessment by Pay Equity Audit 2026 and the calculation steps by Pay Gap Calculation in 5 Steps.

AI in recruiting: AGG and the AI Act

AI systems intended to be used for the recruitment or selection of persons, for example to screen or filter applications or to evaluate applicants, are high-risk systems (Art. 6(2) in conjunction with Annex III no. 4 AI Act); the exception under Art. 6(3) applies only where there is no significant risk to health, safety or fundamental rights and never where natural persons are profiled. Their high-risk obligations apply from 02.12.2027 (Art. 113 AI Act as amended by Regulation (EU) 2026/1744). The AGG already applies today: an algorithmically supported selection must also be measured against the prohibition of disadvantage, and statistical anomalies can serve as an indication under § 22; for solely automated decisions, Art. 22 GDPR applies in addition. In practice this means: a bias test for each protected ground, documented human review before every rejection, and selection logs that can be produced. More in AI Recruiting AGG/BAG-Compliant: 8 Safeguards and Algorithmic Discrimination in Recruiting.

Practical roadmap for SMEs with 50 to 250 employees

The week figures are practice rhythms, not statutory deadlines. Steps 1 to 5 concern applicable law; step 7 is preparation for the Directive.

1. Review job advertisements (week 1): all current advertisements and text modules against § 11 in conjunction with § 7(1) AGG: title, age, language, physical requirements.
2. Document selection (weeks 2 to 3): requirements profile before screening, structured interviews with evaluation forms, objective reasons for rejection, erasure and filing concept in line with the deadlines.
3. Designate the complaints office (week 3): determine the competent body under § 13(1) AGG, regulate rules of procedure and deputisation.
4. Publish (week 3): the AGG, § 61b ArbGG and information on the complaints office under § 12(5) AGG at all sites, by notice or intranet.
5. Train (weeks 4 to 8): training under § 12(2) AGG with proof of participation, in more depth for managers and recruiting.
6. Analyse pay (weeks 6 to 10): consolidate pay data, group jobs by same work or work of equal value (criteria under Art. 4(4) Directive 2023/970: skills, effort, responsibility, working conditions), calculate differences for each group. Anyone establishing or changing remuneration principles in the process touches co-determination under § 87(1) no. 10 BetrVG.
7. Prepare for pay transparency (weeks 8 to 12): a process for information requests (today §§ 10 to 12 EntgTranspG, in future Art. 7 with a two-month deadline), prepare the statement of starting pay or its range, check the reporting threshold under Art. 9.

Templates for this: the AGG Kit contains 61 editable documents (47 Word, 12 Excel, 2 PowerPoint), including an anti-discrimination policy, a complaints procedure, documentation for § 22 AGG, a module on AI in recruiting and the pay transparency module, which treats the Directive as preparation. Packages: Basic EUR 990, Plus EUR 1,390 (with training pack), Complete EUR 1,690 (additionally e-learning), net and one-off, edition for Germany or Austria, 12 months of legal updates. Standardised documentation for companies, no legal advice in individual cases.

Sector practice

Staffing providers and temporary agency work

Where employees are hired out to a third party to perform work, that third party also counts as employer (§ 6(2) sentence 2 AGG). Agencies and user undertakings therefore need coordinated rules for selection, complaints route and documentation; with high numbers of applicants, only standardised criteria and evaluation forms hold up.

Job boards and HR software

Check routines before publication (neutral title, age references) implement § 11 AGG technically. A field for starting pay or its range can be prepared; in Germany it becomes binding only with the transposition of Art. 5(1) Directive 2023/970. In Austria, the requirement of gender-neutral advertising is expressly addressed to recruitment agents as well (§ 9(1), § 10(1) GlBG). Stating the minimum pay in the advertisement is already mandatory in Austria, including for recruitment agents (§ 9(2) GlBG).

Companies bound by collective agreements and pay outside the collective agreement

Being bound by a collective agreement does not replace the pay review: bonuses, allowances and pay outside the collective agreement belong in the analysis, and the Directive requires information precisely on complementary or variable components (Art. 9(1)(b), (d) and (e)). When applying collective agreements, the employer owes compensation only in the case of intent or gross negligence (§ 15(3) AGG); employers bound by or applying a collective agreement prepare the report under § 21 EntgTranspG every five instead of every three years.

Five common misconceptions about the AGG

“The burden-of-proof rule in § 22 hardly ever applies in practice.”

The hurdle is proving indications, not full proof; how low it is is shown by § 22 AGG: Burden of Proof Reversal.

“The AGG only applies above a certain company size.”

False. An employer is any natural or legal person and any partnership with legal capacity that has employees (§ 6(2) AGG), even with a single employee or a single apprentice; persons similar to employees, applicants and former employees are protected as well (§ 6(1)). The misconception confuses the AGG with general protection against dismissal, which § 23(1) KSchG ties to the size of the establishment. Size thresholds exist only for pay, in the EntgTranspG and in future under Art. 9 of the Directive.

“With ‘m/f/d’ the job advertisement is done.”

“m/f/d” concerns only gender. Age references, references to origin or unnecessary physical requirements in the same advertisement can still infringe § 11 AGG; check points in the Job Posting Audit Checklist.

“There is a statutory retention period for application documents.”

False. Neither the AGG nor the GDPR names a fixed duration; it follows from the deadlines in § 15(4) AGG and § 61b(1) ArbGG (table in the section on the recruitment procedure). Anyone who erases much earlier can no longer prove a selection in a dispute; anyone who stores much longer needs a separate legal basis.

“Church and philosophical employers are exempt from the AGG.”

No. § 9 AGG permits different treatment on grounds of religion only as a justified occupational requirement; for all other grounds the AGG applies without a special rule. More in AGG and Tendency Employers: Section 9 + Religion + Church.

Austria: Equal Treatment Act (GlBG) instead of the AGG

Austria (AT): the AGG applies only in Germany. In Austria, the Equal Treatment Act (GlBG) protects in the employment relationship against discrimination on grounds of gender (Part I, § 3) and of ethnic affiliation, religion or belief, age or sexual orientation (Part II, § 17). Points of contact are the Ombud for Equal Treatment (GAW), which advises, supports and may conduct independent investigations (§ 3 GBK/GAW Act), and the Equal Treatment Commission. The GlBG contains no duty to set up an internal complaints office such as that under § 13 AGG.

As at 17.08.2026, the Pay Transparency Directive had not been transposed in Austria, as in Germany. The roadmap can be adopted with the GlBG references; steps 3 and 4 are a voluntary practice standard in Austria, not a statutory duty.