AGG: Avoiding Promotion Discrimination — 6 Practice Tips

Main article: shift in the burden of proof under § 22 AGG — covering statistical indications, facts giving rise to a presumption and rebuttal in detail.

What applies in law to career advancement

The same prohibition of disadvantage applies to career advancement as to hiring: employees must not be disadvantaged on account of a protected characteristic — and the prohibition also applies where the deciding person merely assumes the characteristic; provisions in agreements that infringe it are void (in Germany § 7(1) and (2) AGG). In Austria, § 3 GlBG (sex) and § 17 GlBG (remaining grounds) expressly name career advancement as a protected area — alongside the establishment of the employment relationship, the setting of pay, other working conditions and termination.

Two forms are to be distinguished. Direct disadvantage exists where a person receives less favourable treatment on a protected ground; indirect disadvantage where apparently neutral provisions or procedures are capable of disadvantaging persons in a particular way (§ 3(1) to (4) AGG; in Austria § 5 and § 6 GlBG for the area of sex, § 19 GlBG for the remaining grounds; under those provisions, an instruction to discriminate also counts as discrimination). Under EU law, indirect discrimination within the meaning of Art. 2(1) of Directive 2006/54/EC exists only where the neutral provision is not objectively justified. For promotion rules, the indirect form is the harder case, because selection criteria rarely tie openly to a characteristic: what matters under the definition is whether the rule is capable of disadvantaging persons in a particular way.

Which act applies depends on the characteristic and on the country. The table names the relevant references for each characteristic and country; supplementary provisions outside the prohibition of disadvantage or discrimination in the employment relationship are marked as such:

Two additions to the table: § 164(1) sentence 1 SGB IX is not an AGG rule but a self-standing duty of all employers in Germany — they must examine whether vacant posts can be filled with severely disabled people. § 165 SGB IX carries the official heading "Special duties of public employers" and binds public employers only: notification of posts becoming vacant and to be newly filled to the Employment Agency (Agentur für Arbeit), and invitation of severely disabled applicants to the job interview (sentence 3; dispensable where professional suitability is obviously lacking, sentence 4). The provision contains no rule of preference.

1. Statistical analysis of promotions

Analyse promotions at regular intervals by characteristic — conspicuous rates are the practical entry point into the shift in the burden of proof, and the employer should know them before the other side does. Per year: promotion rate by sex/age/disability. Statistical irregularities can be indications within the meaning of § 22 AGG giving rise to a presumption of disadvantage; § 22 AGG, however, requires only "indications" and knows no fixed percentage threshold. The 5% mark comes from Art. 10(1)(a) of Directive (EU) 2023/970 and triggers only the joint pay assessment there — it relates to pay, not to promotions.

Practical recommendation for the calculation: numerator = promoted employees in the characteristic group, denominator = employees eligible for promotion in the same group at the level they would leave — separately for each hierarchy level, because an overall rate conceals level effects. Where a group's rate diverges from the comparison group, the divergence is documented with date, cause and reasons for the selection.

How low the threshold for indications lies is shown by the case law of the Federal Labour Court on pay: BAG 8 AZR 488/19 (21 January 2021) recognised the median comparison as an indication for the shift in the burden of proof under § 22 AGG; BAG 8 AZR 300/24 (23 October 2025, Daimler Truck) clarified that a pair comparison with a single, highest-paid male colleague already suffices for the presumption of discrimination and that a median comparison is not required. Both decisions are equal-pay judgments — their transfer to promotions is to be read as a trend in the case law, not as one-to-one authority.

An addition on the 5% mark: Art. 10(1) of Directive 2023/970 ties the joint pay assessment to three cumulative conditions — a difference of at least 5% in the average pay level in a category of workers (point (a)), no justification on objective, gender-neutral criteria (point (b)) and no correction within six months of the pay reporting (point (c)) — and covers only employers subject to the reporting obligations under Art. 9.

Observe data protection: sex is not a special category of personal data; for analyses by characteristics other than sex, the legal basis must be clarified in advance (details in the FAQ below). Practical recommendations: do not report very small comparison groups individually — for pay reporting, the EDPB requires in Guidelines 03/2024, because of the re-identification risk, that reports with fewer than four people per comparison group be aggregated or suppressed; transferring this threshold to promotion statistics is a recommendation, not a requirement for that purpose. The annual cycle is likewise a practical rhythm — § 22 AGG ties to indications, not to an analysis interval.

2. Transparent promotion criteria

Criteria belong in writing before the candidates are known — only then can they be reviewed in a dispute: criteria defined in writing BEFORE the promotion decision. Points-based assessment. Auditable. The reason is indirect disadvantage under § 3(2) AGG: a criterion need not tie to the characteristic in order to disadvantage — it is enough that it is capable of disadvantaging persons in a particular way (on the EU-law justification proviso, see above). Practical recommendation for implementation: "auditable" means that the catalogue of criteria, the weighting and the points scale exist in writing before the procedure begins and are versioned with a date.

Typical proxy variables in selection procedures are the postcode, club membership or an unbroken employment history — they can correlate strongly with protected characteristics. Constructs such as "cultural fit" scores, "adaptability" indicators or "digital native" filters likewise often operate as age filters. Practical recommendation: talk through each criterion once to identify which group it systematically places at a disadvantage, and note the objective justification next to the criterion.

On the pay side, EU law makes the requirement concrete: under Art. 6(1) of Directive (EU) 2023/970, the criteria for pay determination, pay levels and pay progression must be objective and gender-neutral and be made proactively available to employees; Art. 4(4) names skills, effort, responsibility and working conditions as assessment dimensions for the value of work. That justifications must genuinely be objective is shown by BAG 8 AZR 450/21 (16 February 2023): "better negotiating skill" does not justify a pay difference. For private employers, however, the concrete obligations under the directive arise only with the national transposition act. Independently of this, the equal-pay requirement of § 7 of the German Pay Transparency Act (Entgelttransparenzgesetz, EntgTranspG) already applies in Germany: for the same work or work of equal value, no lower pay may be agreed or paid on grounds of sex than for an employee of the other sex — this also concerns the pay attached to the higher-graded post.

Where the higher-graded post is advertised, § 11 AGG applies in Germany: a post must not be advertised in breach of § 7(1) AGG. In Austria, § 9 GlBG requires gender-neutral advertising — a post must not be advertised for men only or for women only, unless a particular sex is an indispensable requirement of the activity; breaches are penalised by the district administrative authority (Bezirksverwaltungsbehörde) under § 10 GlBG with a fine of up to EUR 360. § 11 GlBG additionally obliges internal classification rules to use non-discriminatory pay criteria. Under EU law, Art. 5(3) of Directive 2023/970 provides support: job advertisements and job titles are to be kept gender-neutral and recruitment procedures conducted in a non-discriminatory manner.

3. Structured promotion interviews

Assess all candidates within the same grid and record every individual assessment: a score sheet per candidate. Objective competence assessment. Four-eyes principle. The score sheet must contain the same dimensions for all candidates — for the value of work, the directive names the four dimensions from tip 2 (Art. 4(4) of Directive 2023/970). The reason lies in the second half of § 22 AGG: where indications are proved, the other party bears the burden of proving that there was no breach of the prohibitions of disadvantage. Only those with comparable records gathered in the same way can furnish that proof. The four-eyes principle is a practical recommendation here: it separates the line manager and HR as a second assessing instance.

The assumption of a characteristic is already enough (§ 7(1) and (2) AGG, see above) — in practice this means: assumptions about age, disability, origin or religion belong neither in the score sheet nor in the interview notes; whether the characteristic is actually present does not matter.

Where an AI system takes part in the decision: the deployer obligations of the AI Act (Regulation (EU) 2024/1689) presuppose two things — an AI system within the meaning of Art. 3 no. 1 AI Act, that is, a machine-based system designed to operate with varying levels of autonomy and which infers from the input it receives how to generate outputs, and classification as high-risk under Art. 6(2) AI Act in conjunction with Annex III. Annex III no. 4(b) expressly names AI systems for decisions affecting the terms of employment relationships, promotions and terminations, as well as the monitoring and evaluation of performance and behaviour, as a high-risk area. For the employer as deployer, the following then apply, among others: effective human oversight by trained persons (Art. 26(2) in conjunction with Art. 14), retention of the automatically generated logs for at least six months (Art. 26(6) in conjunction with Art. 12) and information to the affected employees and their representatives before putting into service at the workplace (Art. 26(7)). Under Art. 113, the regulation applies in principle since 2 August 2026; with Regulation (EU) 2026/1744 (Digital Omnibus AI), in force since 27 July 2026, however, the high-risk obligations of Chapter III Sections 1 to 3 apply to Annex III systems only from 2 December 2027 and to Annex I systems (Art. 6(1)) from 2 August 2028 (Art. 113(3)(c) AI Act as amended). The fundamental rights impact assessment under Art. 27(1) AI Act, by contrast, does not affect private employers with Annex III no. 4 systems: the addressees are bodies governed by public law, private entities providing public services and deployers under Annex III no. 5(b) and (c).

4. Documenting the decision

Document every promotion decision so that it is still comprehensible months later — the deadline for claims is short, and the burden of proof may lie with the employer in a dispute. Per promotion: written reasons referring to the criteria. There is no three-year "AGG limitation period": claims under § 15(1) or (2) AGG must be asserted in writing within two months — for career advancement, the period begins with receipt of the rejection (§ 15(4) AGG); the compensation action must then be brought within three months (§ 61b(1) ArbGG). As practical guidance for retention, these periods can be added together: two months for asserting the claim and then a three-month period for bringing the action — in total, therefore, at least five months from receipt of the rejection for German cases; for Austrian cases, at least six months up to court assertion, and three years for pay and material claims (references in the DE/AT note above and in the Austria paragraph below). These values are practical guidance for your deletion concept, not a statutory retention period — the AGG contains none for assessment records.

Practical recommendation on the file content: the decision file comprises the dated and versioned catalogue of criteria from tip 2, the score sheets of all candidates from tip 3, the written reasons for the selection referring to the criteria, the names of the two assessors (four-eyes principle) and the date of receipt of the rejection — that date is the anchor for the period under § 15(4) AGG.

What is at stake economically: § 15(1) AGG obliges the employer, in the event of a breach of the prohibition of disadvantage, to compensate the damage incurred, unless it is not responsible for the breach of duty. § 15(2) AGG additionally provides appropriate monetary compensation for the non-material damage; in BAG practice this typically ranges from one to three gross monthly salaries per claimant. Important for the classification: the much-cited cap of three monthly salaries is, on the wording of § 15(2), tied to the failure to hire and applies there only where the employee would not have been hired even under a selection free of disadvantage.

In Austria, where the equal treatment requirement is infringed, the employer owes compensation for the pecuniary damage and compensation for the personal impairment (§ 12 GlBG for the area of sex, § 26 GlBG for the remaining grounds). Instead of a cap, the GlBG works with minimum amounts. For a discriminatory failure to hire or the application — the constellation to which the German cap also ties — the following applies: at least one month's pay where the post would have been obtained under a selection free of discrimination, and up to EUR 500 where the damage consists only in the application not being considered. For harassment, the GlBG provides its own minimum amounts: at least EUR 400, and for sexual harassment under § 12(11) GlBG at least EUR 720. For pay and material claims, the three-year limitation period of § 1486 ABGB applies in Austria.

5. Diversity target as a corrective

A target rate is a steering instrument and works only where it is measured and, if missed, backed by measures — a voluntary commitment to 30% women in management. Annual self-review. Where it is not met: an action plan. These three figures are expressly practical recommendations — a voluntary commitment with a practical rhythm; the target values of Directive (EU) 2022/2381 for listed companies remain unaffected (see FAQ below). An action plan names the divergence, the cause, the measure, the responsible body and the deadline — otherwise the target remains non-binding.

This becomes measurable through the indicators of pay reporting: Art. 9(1) of Directive (EU) 2023/970 requires the employer subject to reporting to provide, among other things, the average pay gap (point (a)), the median pay gap (point (c)) — in addition to the average, not instead of it — the proportion of female and male employees in each pay quartile, and the pay gap for each category of workers doing the same work or work of equal value. It is precisely the quartile distribution that makes visible how promotions work through into the upper pay groups over the years. The joint pay assessment under Art. 10 of Directive (EU) 2023/970 is, moreover, a joint assessment with the workers' representatives.

The directive's timetable: for employers with 250 or more employees, the reporting obligation begins on 7 June 2027 and then runs annually; for 150 to 249 employees it likewise begins on 7 June 2027, and every three years thereafter; for 100 to 149 employees on 7 June 2031, likewise every three years. Below 100 employees there is no reporting obligation — but the directive's right to information and job advertisement obligations apply regardless of size. The concrete obligations of private employers arise with the national transposition act; the transposition deadline in Art. 34(1) of Directive 2023/970 expired on 7 June 2026, and as at 17 August 2026 not even a ministerial draft existed in Germany (BT-Drs. 21/7026 of 8 July 2026: the competent federal ministry is still clarifying individual questions, after which the legislative procedure is to be initiated), while in Austria neither a ministerial draft nor a government bill on transposition existed at federal level. The pattern "threshold exceeded, not justified, not corrected" is known to EU law for the pay area (see tip 1) — for a voluntary management target it is an analogy, not a legal obligation.

6. Mentoring programme for under-represented groups

Mentoring starts exactly where promotions run through informal networks: structured support. Reduces bias in informal promotion paths. Practical recommendation on the design: a fixed duration (around twelve months), mentoring pairs outside one's own management line in order to separate the assessing and the supporting role, a written objectives agreement at the start, and analysis of the participants' promotion rate in the cycle from tip 1. Only then does the programme become measurable at all — without analysis it remains a declaration of intent. The programme itself is a practical recommendation — it is flanked by statutory organisational duties addressed directly to the employer.

Statutory organisational duties: protective measures, complaints body, prohibition of retaliation

Independently of voluntary programmes, the employer owes three things: the necessary protective measures including preventive measures (§ 12(1) to (3) AGG; suitable training counts as fulfilment of this duty), a complaints body with a duty to examine and to notify (§ 13(1) AGG) and protection of complainants and witnesses against disadvantage (§ 16(1) AGG).

In Germany, § 12(1) to (3) AGG obliges the employer to take the necessary measures to protect against disadvantage — including preventive measures — and to point out that such disadvantage is impermissible; suitable training of employees expressly counts as fulfilment of this duty. Where breaches occur, appropriate measures such as a warning, redeployment, transfer or dismissal are to be taken. Under EU law, the Member States under Art. 26 of Directive 2006/54/EC encourage employers to take effective measures to prevent discrimination on grounds of sex and, in particular, harassment and sexual harassment in the workplace.

So that a support programme does not run into the void, the complaints route belongs with it: under § 13(1) AGG, employees have the right to complain to the competent bodies of the establishment where they feel disadvantaged; the complaint is to be examined and the outcome notified. The act and the information about the competent complaints body are to be made known within the establishment (§ 12(5) AGG). Anyone who complains, refuses a discriminatory instruction, provides support or testifies as a witness must not be disadvantaged for doing so (§ 16(1) AGG). In Austria, § 13 GlBG and § 27 GlBG protect employees who complain within the company or initiate proceedings to enforce the equal treatment requirement, as well as witnesses, persons providing information and supporting persons. Advice and support are additionally provided there by the Ombud for Equal Treatment (GAW) under § 3 of the GBK/GAW Act and by the Equal Treatment Commission; in Germany, those affected can turn to the Federal Anti-Discrimination Agency (Antidiskriminierungsstelle des Bundes) (§§ 25, 27 AGG).