Job Posting Audit Checklist: 25 Points AGG-Compliant

Main article: § 22 AGG reversal of the burden of proof — covering statistical indications, presumptive facts and rebuttal, with case law of the Federal Labour Court (BAG), in detail.

What the 25 points test — and where the duty comes from

The checklist translates two provisions into questions of wording: § 11 AGG prohibits advertising a job in breach of § 7(1) AGG, and § 22 AGG shifts the burden of proof in a dispute as soon as one party proves indications suggesting discrimination on a ground listed in § 1 AGG. The grounds protected there are race and ethnic origin, gender, religion or belief, disability, age and sexual identity.

§ 7(1) and (2) AGG also apply where the person acting merely assumes that a protected ground is present; agreements breaching the prohibition are void. What matters for posting texts is § 3 AGG: direct discrimination exists where a person receives less favourable treatment on a ground under § 1 AGG — indirect discrimination where apparently neutral provisions can put persons at a particular disadvantage. The test questions in this checklist therefore focus largely on what a posting text conveys indirectly.

The relevant timing provision is § 15(4) AGG: claims under § 15(1) or (2) AGG must be asserted in writing within two months, in the case of an application from receipt of the rejection, unless the collective bargaining parties have agreed otherwise; a two-month time limit also applies to civil-law claims under § 21(5) AGG. Practical recommendation, not a legal duty: for every posting, file the approved version of the text, the approval date and the approving person — in a dispute, the posting is the first document to be read.

Section A: Gender (5 points)

Section A tests whether the posting is tailored by gender: in Germany the prohibition follows from § 11 AGG in conjunction with § 7(1) AGG, in Austria from the free-standing advertising requirement in § 9 GlBG.

1. m/w/d format? 2. No gender-specific adjectives (e.g. 'a go-getting manager')? 3. Images gender-balanced? 4. Salutation 'Dear Sir or Madam'? 5. Choice of pronouns ('you' vs. 'he')?

Points 2 and 5 address indirect discrimination under § 3(2) AGG: an adjective or a consistently masculine pronoun is apparently neutral, yet it can address or exclude persons of one gender in a particular way. Under EU law, Art. 5(3) Directive (EU) 2023/970 additionally requires job vacancy notices and job titles to be gender-neutral and recruitment processes to be conducted in a non-discriminatory manner.

Austria: § 9 GlBG prohibits advertising a job for men only or for women only and rules out gender-related remarks; a restriction is permissible only where a particular gender is an indispensable requirement of the activity. Breaches of this advertising requirement are penalised by the district administrative authority (Bezirksverwaltungsbehörde) under § 10 GlBG with a fine of up to EUR 360. Test questions 1 to 5 transfer in substance, the sanction mechanics do not: in Germany a defective posting takes effect through the claims under § 15 AGG and the burden-of-proof rule in § 22 AGG, in Austria additionally through administrative penalty proceedings.

Section B: Age (5 points)

Section B catches wording that does not mention age but filters by it; age is a ground under § 1 AGG in Germany and under § 17(1) GlBG in Austria.

6. No 'young'/'dynamic'/'experienced'? 7. No age limit (except acting roles)? 8. 'Entry-level candidates' only if experienced candidates are also welcome? 9. Note 'returners to work also welcome'? 10. Note 'over 50 also welcome'?

Points 6 and 8 work with the same mechanism as Section A: 'young', 'dynamic' or a narrowly defined experience window are apparently neutral provisions which, under § 3(2) AGG, can put persons of one age group at a particular disadvantage. Practical recommendation, not a legal duty: express requirements in verifiable terms — specific tasks, the knowledge needed, the scope of responsibility — rather than in images of age. The welcoming sentences in points 9 and 10 are voluntary additions and go beyond the wording of § 11 AGG.

Section C: Disability (5 points)

Section C separates two duties that are regularly conflated in job postings: the duty on all employers to examine vacancies under § 164(1) SGB IX and the special duties of public-sector employers under § 165 SGB IX.

11. Reference to severely disabled persons correctly classified (duty on all employers to examine vacancies: § 164(1) SGB IX)? 12. Note on an 'accessible application process'? 13. Protection regarding the disability card? 14. Emergency contact for adjustments? 15. Inclusive imagery?

Classification of point 11: § 165 SGB IX carries the official heading 'Special duties of public-sector employers' and binds public-sector employers only: notification of vacancies arising and posts to be newly filled to the Federal Employment Agency (Agentur für Arbeit), and an invitation to severely disabled applicants to attend an interview (sentence 3; dispensable where professional suitability is obviously lacking, sentence 4). The provision contains no rule of preference. § 164(1) sentence 1 SGB IX applies to all employers: they must examine whether vacancies can be filled with severely disabled persons. The posting sentence 'severely disabled persons will be given preference where suitability is equal' is therefore a voluntary self-commitment for private employers, not a mandatory statutory statement.

We list points 12, 14 and 15 as a practical recommendation: a reference to an accessible process, a named contact for adjustments and the choice of images lower barriers in the application process, but they go beyond the wording of § 164(1) SGB IX.

Austria: there, this section hangs on a different statute. Disability is not a ground of discrimination under the GlBG — that act covers gender (§ 3) as well as ethnic affiliation, religion or belief, age and sexual orientation (§ 17(1)). Discrimination on grounds of disability in working life is governed by the Austrian Disability Employment Act (Behinderteneinstellungsgesetz, BEinstG, prohibition of discrimination in §§ 7a et seq., in particular § 7b), and outside working life by the BGStG.

Section D: Religion + ethnicity (5 points)

Section D tests requirements that map origin or religion onto language and status criteria — protected in Germany under § 1 AGG (race and ethnic origin, religion or belief) and in Austria under § 17(1) GlBG (ethnic affiliation, religion or belief).

16. No 'with a German passport'? 17. No 'fluent German without an accent'? 18. 'Very good German language skills' instead of 'native speaker'? 19. Tendency-based employer clause only where it applies? 20. Images ethnically diverse?

Points 16 to 18 address indirect discrimination under § 3(2) AGG: 'German as a native language' or 'without an accent' apparently describe a language requirement, yet they can put persons of a particular origin at a particular disadvantage. Where a level of language proficiency is genuinely needed for the activity, it should be described as a requirement of the activity — which is exactly what the wording in point 18 achieves.

Data protection interface: what the posting is not supposed to ask for must not be collected by the application form either. Under Art. 9(1) GDPR, the processing of personal data revealing racial and ethnic origin or religious or philosophical beliefs is prohibited; exceptions are set out in Art. 9(2) GDPR, for example explicit consent. Gender is not one of the special categories under Art. 9(1) GDPR — there, the principle of Data Minimisation under Art. 5(1)(c) GDPR applies.

Section E: Pay transparency (5 points)

Section E covers pay transparency: Art. 5(1) Directive (EU) 2023/970 gives job applicants a right to information about the initial pay, or its range, for the position concerned, based on objective, gender-neutral criteria.

21. Initial pay or its range disclosed — in the posting or at the latest before the interview (right under Art. 5(1) Directive 2023/970; transposition deadline expired on 7 June 2026, with national transposition still outstanding in Germany and Austria as at 17 August 2026)? 22. Bonus structure transparent? 23. Predecessor's pay range? 24. Promotion path? 25. No 'salary negotiable' boilerplate?

Under Art. 5(1) subparagraph 2 Directive 2023/970, this information must be provided in such a way as to ensure an informed and transparent negotiation on pay — for example in a published job vacancy notice, before the interview or otherwise. Two accompanying requirements belong in the same review: Art. 5(2) Directive 2023/970 prohibits asking applicants about their pay history in current or previous employment relationships, and Art. 6(1) Directive 2023/970 requires the criteria for determining pay, pay levels and pay progression to be objective and gender-neutral.

The transposition deadline under Art. 34(1) Directive (EU) 2023/970 expired on 7 June 2026. For private employers, the concrete duty nevertheless only arises with the national transposing law: under Art. 288(3) TFEU a directive is binding only on the Member States to which it is addressed; between private employers and employees it has no direct effect (CJEU, judgment of 14 July 1994 — C-91/92 Faccini Dori), and after the deadline has expired direct effect can at most be considered vis-à-vis the state and state bodies. As at 17 August 2026, no transposing act was in place in Germany; according to the Federal Government's reply of 8 July 2026 (Bundestag printed paper BT-Drs. 21/7026), individual questions are still being clarified, and the legislative procedure is to be initiated thereafter. In Austria, too, no federal transposing act was in place as at the same date; Petition 2/PET (XXVIII. GP) has been referred to the Committee on Labour and Social Affairs, and deliberations have not yet begun. Until the respective transposing act, the Entgelttransparenzgesetz (German Pay Transparency Act, EntgTranspG) and the AGG apply to private employers in Germany.

Points 22 to 24 — bonus structure, predecessor range, promotion path — are practical recommendations and go beyond the wording of Art. 5 Directive 2023/970. Point 25, by contrast, has a factual core: boilerplate such as 'salary negotiable' contains neither an initial pay figure nor a range and therefore does not deliver the information provided for in Art. 5(1) Directive 2023/970.

Austria: what applies under the GlBG instead of the AGG

The 25 test points on language, age and ethnicity also apply in substance in Austria — but the legal basis there is not the AGG, it is the Gleichbehandlungsgesetz (Austrian Equal Treatment Act, GlBG). For disability (Section C), the GlBG does not apply in Austria: it does not recognise disability as a ground of discrimination (§ 3 gender; § 17(1) ethnic affiliation, religion or belief, age, sexual orientation). Discrimination on grounds of disability in working life is governed there by the Behinderteneinstellungsgesetz (Austrian Disability Employment Act, BEinstG, prohibition of discrimination in §§ 7a et seq., in particular § 7b), and outside working life by the BGStG. The provisions, the competent authorities and the sanctions differ:

• Gender-neutral advertising (§ 9 GlBG): a job must not be advertised for men only or for women only — unless a particular gender is an indispensable requirement of the activity; gender-related remarks are not permitted.
• Sanction (§ 10 GlBG): a breach of the advertising requirement is an administrative fine of up to EUR 360, imposed by the district administrative authority — not damages payable to applicants as in Germany.
• Damages for discriminatory refusal to hire (§ 12 GlBG): Austria works with minimum amounts rather than a cap — at least one month's pay where the position would have been obtained in a discrimination-free selection, or up to EUR 500 where the damage consists only in the application not being considered (not § 15 AGG).
• Easing of proof (§ 12(12) or § 26(12) GlBG): the person concerned must establish the discrimination as credible; the defendant must then prove that, weighing all the circumstances, another motive was more probable or that a justification exists — a different construction from the evidence-by-indication rule in § 22 AGG.
• Time limit (§ 15 or § 29 GlBG): claims for failure to establish an employment relationship or for a promotion not granted must be asserted in court within six months of the rejection — not within two months in writing as under § 15(4) AGG.
• Advice & support: the Ombud for Equal Treatment (GAW) and the Equal Treatment Commission — not the Federal Anti-Discrimination Agency (Antidiskriminierungsstelle des Bundes).
• Pay transparency: the transposition deadline for EU Directive 2023/970 (pay transparency) expired on 7 June 2026; as at 17 August 2026 no federal transposing act was in place in Austria — as in Germany, the concrete duty for private employers only arises there with the national transposing law.

Germany and Austria: the provisions side by side

The chain from the posting to the claim runs through different provisions in the two countries. For each of the five stages at which a posting audit takes effect, the table sets the German and the Austrian provision side by side.

After approval: responsibility, training, review cycle

In Germany, reviewing postings is part of the employer's organisational duty: § 12(1) to (3) AGG requires the employer to take the necessary measures to protect against discrimination, including preventive measures, and to point out that discrimination is not permitted; suitable training of employees counts as fulfilment of this duty. Where breaches occur, the employer must take suitable measures such as a warning, redeployment, transfer or dismissal.

Two provisions supplement this internally: under § 12(5) AGG, the act and the information about the body responsible for complaints must be made known within the establishment, and § 13(1) AGG gives employees the right to complain to the competent bodies of the establishment if they feel discriminated against on a ground listed in § 1 AGG; the complaint must be examined and the outcome communicated. Employees who exercise rights under this section — for example the right to complain under § 13(1) AGG — as well as supporting persons and witnesses must not be disadvantaged for doing so (§ 16(1) AGG).

Practical recommendation, not a statutory deadline: review posting templates and text modules as the occasion arises — as soon as a relevant provision changes or a new template enters circulation — and proofread them in between on a fixed, self-imposed cycle. What matters is documenting this review: it is the evidence of preventive measures within the meaning of § 12(1) AGG.

When the posting is served algorithmically

As soon as an AI system controls who is served a job advertisement or which application is pre-sorted, the AI Act (Regulation (EU) 2024/1689) applies alongside the AGG. Annex III no. 4(a) expressly names AI systems intended to be used for the recruitment or selection of natural persons, 'in particular to place targeted job advertisements, to analyse and filter job applications, and to evaluate candidates'; under Art. 6(2) AI Act, the systems listed in Annex III are deemed high-risk. Under Art. 113 AI Act, the regulation applies in principle from 2 August 2026.

For the employer as a deployer, this entails, among other things: effective human oversight by trained persons (Art. 26(2) in conjunction with Art. 14 AI Act), retention of the automatically generated logs for at least six months (Art. 26(6) in conjunction with Art. 12 AI Act), and informing the employees concerned and their representatives before putting the system into service at the workplace (Art. 26(7) AI Act). The fundamental rights impact assessment under Art. 27(1) AI Act, by contrast, does not apply to private employers using recruitment AI under Annex III no. 4; those bound by it are bodies governed by public law, private entities providing public services, and deployers under Annex III no. 5(b) and (c). The Digital Omnibus AI has been in force as Regulation (EU) 2026/1744 since 27 July 2026; under it, the high-risk obligations in Chapter III Sections 1–3 — and thus the deployer duties set out above — apply to Annex III systems from 2 December 2027 and to Annex I systems from 2 August 2028.