AGG and International Workforce: Ethnic Diversity Without Discrimination

Main article: § 22 AGG: reversal of the burden of proof — the full pillar article on the topic.

Anyone recruiting internationally touches on a protected characteristic with almost every requirement: language, identity documents, dress codes and public-holiday rules look neutral at first sight and yet relate to origin and religion. This article classifies six areas of practice — together with the Austrian legal framework, the burden of proof, organisational duties and time limits — and names the governing provision for each: predominantly the German General Equal Treatment Act (AGG) and the Austrian Equal Treatment Act (GlBG), and the General Data Protection Regulation (GDPR) for origin data. The focus is on the recruitment procedure; the same standard applies to pay and promotion, without this article setting it out. Where this article does not present the statutory tests — § 8 AGG, § 5 AGG, the suitability of training under § 12(2) AGG — it supplies the documentation that prepares those tests. Legal status of the sources reviewed: 2 May 2026, for the AI Act 17 August 2026 (Regulation (EU) 2026/1744) — other legal changes occurring after 2 May 2026 are not incorporated.

Which characteristic is protected — and where it is set out

The protected characteristic is race or ethnic origin: § 1 AGG lists it among the grounds on which disadvantage is to be prevented or eliminated; the prohibition itself is set out in § 7(1) AGG. Alongside it, § 1 AGG names sex, religion or belief, disability, age and sexual identity. At Union level, this characteristic is covered by Directive 2000/43/EC, Article 1 of which lays down a framework for combating discrimination on the grounds of racial or ethnic origin.

More important in practice than the list is the reach of the rule: under § 7(1) AGG, the prohibition in Germany also applies where the person committing the disadvantage merely assumes that such a ground exists. A name, an accent or a place of birth in a CV is therefore enough as a point of reference, regardless of actual origin. Provisions in agreements that infringe the prohibition are void under § 7(2) AGG.

1. Language requirements without discrimination

A language requirement is permissible as long as it relates to the job — it becomes problematic as soon as it addresses origin rather than the task. The requirement "very good German language skills" is therefore permissible; the wording "German as a native language", by contrast, is an indication of disadvantage on grounds of ethnic origin, and "accent-free" is not permissible.

In legal terms, this is the textbook case of indirect disadvantage: under § 3(2) AGG it exists where apparently neutral provisions are liable to put people at a particular disadvantage on a ground referred to in § 1. The Austrian counterpart is set out in § 19 GlBG. A language requirement remains permissible only where there is an objectively justified need (§ 8 AGG).

The wording of the advertisement is itself subject to review — under § 11 AGG a position may not be advertised in breach of § 7(1). The review points for wording on language, origin and passport are collected in the job advertisement audit checklist (section D).

Practical recommendation: for each position, record in writing before advertising where the required language level comes from. The note only carries weight if it contains five items:

• the position,
• the required level as a value on a scale applied uniformly across the organisation, and specifically the lowest level that supports the task,
• the governing reason arising from the task itself (customer contact, safety instruction, documentation duty),
• the date,
• the person granting approval.

Warehouse work without customer contact supports a different level from machine operation with safety instruction — what matters is that the reason follows from the task and not from origin. This note later forms part of the proof to the contrary under § 22 AGG.

2. Identity checks in the application procedure: Data Minimisation and Art. 9 GDPR

When checking identity, for example in a job interview, personal data must be minimised (Art. 5(1)(c) GDPR); data revealing racial and ethnic origin or religious beliefs are additionally subject to the prohibition on processing in Art. 9(1) GDPR — exceptions are governed by paragraph 2, for example explicit consent.

Practical recommendation for identity checks in the application procedure: record only the name, the date of inspection and the person carrying out the check in a memo, instead of placing a copy or scan on the applicant file. The photo requirement is also critical — do not request an application photo; a photograph and an identity document can allow such inferences.

Relevant for prioritisation: infringements of Art. 9 GDPR fall within the higher fine tier under Art. 83(5) GDPR — up to EUR 20 million or 4 % of worldwide annual turnover, whichever is higher (orders of magnitude in the fine calculator).

In practice, this leads to the anonymised first-round selection: photo, name and date of birth are removed before the technical review. That is a practical recommendation, not a statutory duty — but it removes the point of reference from the pre-selection and can be documented in the event of a dispute.

3. Visa requirements

Visa status is not a ground for differentiation — the selection decision should not rely on it. In the text of the advertisement, the requirement "with a German passport" is prohibited; for the selection decision the assessment takes an indirect route, because nationality itself is not included in the exhaustive list of grounds in § 1 AGG — see the next paragraph. Statutory checking duties outside the AGG remain unaffected and are not dealt with here — nor are the differences between EU citizens and third-country nationals.

The requirement "with a German passport" can amount to indirect disadvantage on grounds of ethnic origin (§ 3(2) AGG, Austria § 19 GlBG — definition in section 1); in an advertisement it additionally engages § 11 AGG. In Austria the same assessment rests on § 17 GlBG in conjunction with § 19 GlBG.

Practical recommendation for the process: the check of employment eligibility runs in the same way for all selected persons — in a separate step after the technical selection, in the same procedure as the identity check in section 2 — and residence status does not appear in the selection documents themselves. Requirements as to passport, nationality or residence status therefore do not belong in the text of the advertisement — for the requirement "with a German passport" this is an express review point of the job advertisement audit checklist (section D).

4. Diversity management

A diversity programme is typically based on a voluntary commitment — what is legally sensitive is not the programme but the metric behind it. The usual toolkit includes signing a diversity charter, diversity metrics (share of women, share of people with a migration background, share of severely disabled employees) and bias training for the HR department. Diversity programmes can be positive measures under § 5 AGG; whether preferential treatment is permissible in an individual case must be assessed separately.

Practical recommendation for preparing precisely that assessment: before any preferential measure, set out three points in writing:

• the disadvantage you want to offset within your own organisation, supported by the data source, the data as at date and the date of analysis,
• the measure itself, with its scope and duration,
• the approving body, with the date.

Practical recommendation for escalation: as soon as a measure binds the selection decision itself — a fixed recruitment quota, a priority rule — this document belongs on the desk of legal counsel before it is introduced; for mere targets without binding effect, documentation is sufficient. The same applies to the diversity charter and any other voluntary commitment: for each measure promised, record a responsible body and an implementation status with a date, and update both annually; without this evidence, only the promise is on record in a dispute, not its implementation.

Two of the three metrics touch on the same prohibition on processing as identity document data (Art. 9(1) GDPR, section 2): metrics on migration background regularly capture data revealing ethnic origin; information about a disability regularly allows inferences about health data, and health data likewise belong to the special category in Art. 9(1) GDPR. This restriction does not apply to the metric on the share of women — sex is not in the exhaustive catalogue of Art. 9(1) GDPR. Collecting the two sensitive metrics is permissible only on the basis of an exception under Art. 9(2) GDPR, for example explicit consent; practical recommendation: voluntary self-disclosure, aggregated analysis, no storage at individual level. The rules specific to the characteristic of disability (Germany § 164(1) sentence 1 SGB IX, Austria §§ 7a et seq. BEinstG) are set out in the job advertisement audit checklist (section C).

Bias training is not an add-on programme: it can count as suitable training within the meaning of § 12(2) AGG and contribute to the duty of protection in § 12(1) AGG — what makes such training demonstrable is set out below in the section on organisational duties.

5. Religion in a multinational workforce

Religion and belief are protected characteristics in their own right — in Germany under § 1 AGG, in Austria under § 17 GlBG; anyone who treats requests for a prayer room or time off for religious holidays differently depending on the faith concerned is causing disadvantage on grounds of religion. The standard is therefore equal treatment of the requests: a ground for refusal must be capable of being formulated independently of faith — operational workflow, safety, available space — and the same refusal would have to apply to every other request with the same purpose. Without a neutral dress code policy, neither a mandatory tie nor a headscarf ban can be justified — see section 6.

Practical recommendation for handling requests: a written route for public-holiday and room requests, a named decision-making body, the same deadline and the same standard for every request regardless of faith, and a short written statement of reasons for every approval as well as every refusal. What has to be demonstrable in a dispute is not the individual decision but the equal treatment of the requests among themselves.

Two heads of liability are often overlooked here. First, harassment: under § 3(3) AGG, violating a person's dignity through a hostile environment is likewise a disadvantage — "remarks" in the team relating to origin or religion are therefore not a question of workplace climate but a breach of the law. Second, for Austria § 19 GlBG expressly states that an instruction to discriminate also counts as discrimination.

Where a breach becomes known, the employer in Germany is obliged under § 12(3) AGG to take appropriate measures (list below in the section on organisational duties). Religion-related information from such cases is subject to the same prohibition on processing (section 2); practical recommendation: do not place it on the general personnel file.

6. CJEU C-157/15 Achbita: a neutral dress code policy

Consistent application is a precondition for the permissibility of a neutrality rule — it is not sufficient on its own; inconsistency turns it into discrimination under CJEU C-157/15 (Achbita, 14 March 2017). (Parallel case C-188/15 Bougnaoui, same day: a customer's wish alone does not justify a headscarf ban.)

Consistent application gives rise to the comparison announced in section 5: a mandatory tie and a headscarf ban must follow from the same rule with the same scope; if only one of the two is enforced, precisely the consistency on which permissibility rests is missing. The test framework consists of four questions: does the rule apply to all visible religious and philosophical signs? Does it apply to all positions or only to those with customer contact? Which operational objective supports it? Which exceptions have been granted so far? With these four questions, a dress code rule belongs — like the preferential measures in section 4 — on the desk of legal counsel before it is issued or amended.

Why inconsistency is so expensive is explained by the interplay of two provisions. The neutrality rule is an apparently neutral provision (section 1) — inconsistent enforcement produces precisely the particular disadvantage that § 3(2) AGG refers to. And at the same time it supplies the indication that reverses the burden of proof under § 22 AGG — from that point on, the employer owes proof that there was no breach. In Austria the same mechanism runs through § 19 GlBG and § 26(12) GlBG.

Practical recommendation for documentation: record the scope, the date, the approving body and a register of every exception granted. The register does not serve to justify exceptions but to demonstrate consistent application. Entries may, in a dispute, tell against reliance on consistent application. Without the register, consistent application cannot be demonstrated after the event at all.

Austria: GlBG instead of AGG

For an international workforce in Austria, the AGG does not apply; the Equal Treatment Act (GlBG) does. The allocation of provisions and of the competent bodies is set out in the table above. The case law of the CJEU (Achbita, Bougnaoui) applies in Austria as it does in Germany.

The differences lie in the legal consequences and in the time limits. Where the principle of equal treatment is infringed, compensation for pecuniary loss and damages for the personal impairment suffered are due under § 26 GlBG — and that with statutory minimum amounts (amounts in the table further below). Germany, by contrast, caps damages at three months' salary only in the case of non-recruitment, and even then only where the person would not have been recruited in a selection free of disadvantage (§ 15(2) AGG); compensation for pecuniary loss under § 15(1) AGG is not capped.

With the time limits, the decisive difference in practice lies not in their length but in the form in which the claim must be asserted: Austria requires assertion before the courts under § 29 GlBG, Germany requires assertion in writing under § 15(4) AGG (time limits at a glance in the table below). For pay and benefit claims, the three-year limitation period in § 1486 ABGB applies.

Protection against victimisation also has its own legal basis: under § 27 GlBG, no one may be dismissed, given notice or otherwise disadvantaged in reaction to a complaint within the company or to the initiation of proceedings — this also applies to witnesses, persons providing information and supporting persons. Under § 3 GBK/GAW Act, the GAW is responsible for advice and support, may carry out independent investigations, issue recommendations and hold consultation hours throughout the federal territory.

Burden of proof: what § 22 AGG means for your documentation

Anyone who has to provide proof to the contrary under § 22 AGG typically relies on five building blocks: the job advertisement worded in compliance with the AGG, selection criteria fixed in writing before applications are received, objective assessment sheets for each applicant based on a set of questions that is the same for everyone and defined in advance, the attendance list for the interviews, and a dated written statement of reasons for the selection decision. The reason for this lies in the mechanism of the provision: it reverses the burden of proof. If, in a dispute, one party proves indications suggesting disadvantage on a ground referred to in § 1, the other party bears the burden of proving that there was no breach of the provisions protecting against disadvantage. Under Union law, the same rule for ethnic origin is set out in Article 8 of Directive 2000/43/EC.

Recognised indications under the case law of the Federal Labour Court (BAG) include the wording of the job advertisement, statistical anomalies in the selection procedure, discriminatory statements in the interview, temporal connections and documented discrimination in the outputs of AI tools; the individual references are set out in the pillar article on § 22 AGG. How low the threshold is can be seen from BAG, judgment of 23 October 2025 — 8 AZR 300/24 (Daimler Truck): there, in an equal-pay context, a pairwise comparison with a single male colleague was already sufficient as an indication under § 22 AGG / § 7 EntgTranspG. That is a trend regarding the threshold for indications, not a one-to-one authority for the characteristic of ethnic origin. The requirements for the subsequent proof to the contrary are, by contrast, high.

Where pre-selection is AI-supported, bias test results and audit logs are added to the five building blocks — without them the selection logic cannot be presented after the event. These records hold up under three conditions:

• the bias test analyses previous algorithmic decisions statistically by protected characteristic — on the aggregated data basis from section 4 — and is repeated annually,
• the mitigation derived from it is documented,
• the selection logs are kept for each applicant and retained for at least six months.

These six months are the lower limit for the audit logs, not for the selection records — for those, the longer recommendation in the paragraph after next applies. The logs record the decision criteria, not the application documents. The data basis for the analysis is the same as for the diversity metrics (section 4); a reconciliation of log entries with information on origin at individual level is precisely not what is meant.

For high-risk recruitment AI under Annex III no. 4 AI Act, the retention of automatically generated logs (Art. 26(6) in conjunction with Art. 12 AI Act) and effective human oversight (Art. 26(2) in conjunction with Art. 14 AI Act) become deployer obligations from 2 December 2027 — thus Art. 113(3)(c)(i) AI Act as amended by Regulation (EU) 2026/1744 (Digital Omnibus AI), in force since 27 July 2026; the general date of application of 2 August 2026 does not cover these obligations. Irrespective of this: keep logs and staff human oversight before a recruitment tool goes live — both are in any event your proof to the contrary under § 22 AGG. Check the date of application for Annex III in the consolidated version of the AI Act on EUR-Lex before the next use of a tool (reference in the Sources block).

In Austria the standard is lower: under § 26(12) GlBG the person concerned need only establish the facts of discrimination as prima facie evidence; the defendant must then prove that, weighing all the circumstances, another motive was more probable or that a ground of justification exists. Practical recommendation for both jurisdictions: separate by class of document. Retain the selection records — criteria, assessment sheets, dated statement of reasons — uniformly for three years: the German two-month period in § 15(4) AGG concerns only the assertion of claims and is not a retention benchmark; in Austria, pay and benefit claims run for three years under § 1486 ABGB. Delete the application documents themselves once the procedure has been completed; do not place identity document and origin data on the file in the first place (section 2). This also resolves the tension with Data Minimisation under Art. 5(1)(c) GDPR: what is retained is not the application but the evidence of the decision.

Organisational duties, complaints body, prohibition of retaliation

Three duties apply to the employer at the same time: protective and preventive measures together with publication (§ 12(1) and (5) AGG), examination of and a decision on every complaint (§ 13(1) AGG), and the prohibition on disadvantaging complainants or witnesses for doing so (§ 16(1) AGG, Austria § 27 GlBG). In detail: in Germany, under § 12(1) AGG the employer must take the necessary measures to protect against disadvantage — including preventive measures — and point out that such disadvantage is not permitted. Under paragraph 2, suitable training of employees counts as fulfilment of this duty; under paragraph 3, appropriate measures such as a warning, reassignment, transfer or dismissal must be taken in the event of breaches.

As a practical recommendation, four determinations support the evidence of training. Participants: all employees, separately the managers and everyone involved in selection decisions. Content: the characteristics in § 1 AGG, harassment under § 3(3) AGG, the complaints route under § 13(1) AGG and the prohibition of retaliation in § 16(1) AGG. Evidence: a participant list with date and signature, together with the training material archived in the version taught. Frequency: on joining and recurring thereafter, annually for HR. Without these documents it cannot be shown in a dispute that any training took place at all.

For the two formal duties on this list, the scope is what matters: under § 12(5) AGG, what must be made known is the Act itself and the information about the body responsible for complaints. And the right to complain under § 13(1) AGG does not arise only with the selection decision but as soon as employees feel disadvantaged on a ground referred to in § 1 — every such complaint must be examined and the outcome communicated.

Practical recommendation for international teams: publication is only of use if it actually reaches the workforce. A combination of a notice board posting, the intranet and the onboarding pack works, in all working languages actually used in the establishment — derive the language list from the HR master data once a year. Name the complaints body with its name, function and contact details instead of merely as the "responsible body", record the date of the notice board posting and have receipt acknowledged during onboarding. The same language list supports instruction: the practical recommendation is to deliver occupational safety instruction, and likewise the training that counts as fulfilment of the duty under § 12(1) AGG (§ 12(2) AGG), in the native language or in the working language actually understood, and to have receipt acknowledged for each language.

Practical recommendation for the complaints route:

• confirm receipt with a date,
• name the examining body by name and provide for a deputy in case the complaint is directed against that body,
• set a target deadline for communicating the outcome,
• communicate the outcome in writing,
• file the case separately from the general personnel file (following on from the prohibition on processing in section 2).

The prohibition of retaliation in § 16(1) AGG goes beyond the complaint itself: it also covers a refusal to carry out an instruction that breaches the Act, and it likewise protects persons who support employees or give evidence as witnesses (Austria § 27 GlBG). Advice outside the establishment is available in Germany from the Federal Anti-Discrimination Agency (Antidiskriminierungsstelle des Bundes): under § 25 and § 27 AGG it supports those affected independently, provides information about claims, arranges advice and seeks an amicable settlement.

Time limits and claims at a glance

What decides the time limits under the AGG is less their length than their starting point: the period in § 15(4) AGG begins, in the case of an application or promotion, when the rejection is received, and otherwise when the disadvantage becomes known — the parties to a collective agreement may agree different arrangements. The lengths for Germany and Austria are set out in the table; for civil-law claims outside employment, § 21(5) AGG applies (overview table above).

Practical recommendation: document the date of receipt for every rejection. In Germany it decides when the period under § 15(4) AGG begins — and therefore whether a claim is still open at all.