Hiring Severely Disabled Employees: Section 165 SGB IX + AGG

Main article: reversal of the burden of proof under § 22 AGG — how proven indications shift the burden of proof to the other party and what follows for documenting selection decisions.

1. Duty to invite under § 165 SGB IX (public-sector employers only)

The duty to invite under § 165 SGB IX applies only to public-sector employers — the official heading of the provision reads "Besondere Pflichten der öffentlichen Arbeitgeber" (special duties of public-sector employers). They must invite every severely disabled applicant to an interview unless professional suitability is obviously lacking (§ 165 sentences 3 and 4 SGB IX); the case law of the Federal Labour Court (BAG) interprets "obviously" narrowly. Private employers, by contrast, are under no statutory duty to invite severely disabled applicants to an interview.

In addition to the invitation, public-sector employers must notify the Federal Employment Agency (Agentur für Arbeit) of positions becoming vacant and of positions to be newly filled. § 165 SGB IX contains no rule of preference — the provision governs access to the procedure, not its outcome.

Private employers are therefore not outside the scope of SGB IX: § 164(1) sentence 1 SGB IX applies to all employers, requiring them to examine whether vacant positions can be filled with severely disabled persons. That is a duty to examine, not a duty to invite and not a duty to hire.

Practical consequence for job advertisements: the sentence "severely disabled applicants will be given preference where qualifications are equal" is, for private employers, a voluntary self-commitment, not a mandatory statutory statement (details in the FAQ).

2. § 1 AGG and the reversal of the burden of proof under § 22 AGG

Disability is a characteristic under § 1 AGG — a disadvantage on that ground is prohibited by § 7(1) AGG, and § 22 AGG reverses the burden of proof as soon as indications are proven; in the case of public-sector employers, a failure to invite is a strong indication for the purposes of § 22 AGG. In detail: § 1 AGG expressly names disability among the grounds on which disadvantages are to be prevented or eliminated; § 7(1) and (2) AGG prohibits disadvantaging employees on such a ground — including where the person causing the disadvantage merely assumes that such a ground exists; provisions in agreements that infringe this prohibition are void.

§ 22 AGG allocates the burden of proof in two stages: if, in a dispute, one party proves indications suggesting a disadvantage on a ground named in § 1 AGG, the other party bears the burden of proving that no infringement of the provisions protecting against disadvantage occurred. The threshold for indications is low, the full proof to be furnished by the other party is high — an employer who cannot reconstruct its own selection decision cannot furnish that proof.

A distinction must be drawn between the forms of disadvantage under § 3 AGG: direct, where a person receives less favourable treatment on a ground under § 1 AGG; indirect, where apparently neutral provisions are liable to put persons at a particular disadvantage. Harassment and sexual harassment are separate forms of disadvantage. For job advertisements, § 11 AGG applies in addition: a position may not be advertised in breach of § 7(1) AGG.

Practice recommendation (not a statutory requirement): set out the selection criteria in writing before the first application arrives, conduct structured interviews with a score sheet, file a written justification for each selection decision, and run applicant management with an audit trail. Traceably documented selection grounds are the practical protection in both jurisdictions.

3. Compensatory levy where no hiring takes place

The compensatory levy is due where an employer with 20 or more employees falls below the mandatory quota of 5 % (§ 154 SGB IX): EUR 140–720 per month for each unfilled mandatory position. Which amount within that range applies follows from the version of SGB IX in force at the time and from the Federal Employment Agency overview linked in the sources section.

What matters in practice is keeping the levels apart: the quota and levy rules of SGB IX are tied to the number of employees (20 or more employees, § 154 SGB IX). The prohibition of disadvantage in § 7(1) and (2) AGG, by contrast, is tied to the characteristic and to the individual decision.

Protection against dismissal likewise lies outside the selection procedure: the dismissal of severely disabled persons requires the approval of the Integration Office (§ 168 SGB IX). It concerns the termination of the employment relationship, not the hiring decision, and is not examined further in this article.

4. Accessibility in the procedure and at the workplace

Accessibility concerns two levels: the workplace and the application procedure. For the workplace, the duty to provide 'reasonable accommodation' applies; adjustments may be funded by the Integration Office — for the funding rate and the application route, see the practice recommendation at the end of this section.

The AGG adds a second line of examination here: where an inherently neutral process — for example an application procedure without accessible access, or a selection test without any possibility of adjustment — is liable to put people with disabilities at a particular disadvantage, the definition of indirect disadvantage under § 3 AGG (§ 3(1) to (4)) must be examined. The design of the procedure itself therefore belongs in the risk assessment, not just the workplace.

Across both levels, the general duty of protection under § 12(1) to (3) AGG applies: the employer is obliged to take the necessary measures to protect against disadvantages — including preventive measures — and to point out that such conduct is impermissible; suitable training of employees counts as fulfilment of this duty. Where infringements occur, the employer must take appropriate measures such as a warning, redeployment, transfer or dismissal.

Practice recommendation (not a statutory requirement): include in the job advertisement a reference to an accessible application procedure and a named contact for any adjustments required — this moves the clarification ahead of the selection decision. Have the funding rate and the application route confirmed by the competent Integration Office before making any purchase.

5. Damages and compensation: § 15 AGG

A disadvantage in the application procedure triggers claims under § 15 AGG: damages under subsection 1 and compensation for non-material damage under subsection 2.

§ 15(1) AGG obliges the employer, in the event of an infringement of the prohibition of disadvantage, to compensate the damage caused — unless the employer is not responsible for the breach of duty. § 15(2) AGG additionally provides a claim for appropriate monetary compensation for non-material damage; where the applicant was not hired, it may not exceed three monthly salaries if the employee would not have been hired even under a selection free of disadvantage. In the practice of the Federal Labour Court, compensation typically ranges from one to three gross monthly salaries per claimant; higher amounts are conceivable in individual cases but must be specifically justified.

The time limit is decisive for the defence: a claim under § 15(1) or (2) AGG must be asserted in writing within two months, unless the parties to the collective agreement have agreed otherwise. In the case of an application or promotion, the period starts on receipt of the rejection, otherwise on becoming aware of the disadvantage. A two-month period also applies to civil-law claims (§ 21(5) AGG). Practice recommendation (not a statutory requirement): send rejection letters with proof of receipt — this evidences when the period started.

Not every application triggers claims: by judgment of 19 September 2024 (8 AZR 21/24), the Federal Labour Court held that applications made without any intention of taking up employment do not give rise to compensation; such constellations are treated as an abuse of rights.

6. Protected group of persons, prohibition of victimisation and complaints body

A person is severely disabled if they have a degree of disability (Grad der Behinderung, GdB) of at least 50; with a GdB of 30 to 49, equal status may be granted on application. The mandatory quota and the protection against disadvantage cover different groups of persons: what counts for the quota are positions within the meaning of § 156(1) SGB IX — positions held by employees, civil servants, judges, trainees and others engaged for their vocational training; the AGG's protection against disadvantage applies to employees within the meaning of § 6(1) AGG, expressly including applicants. In practice this means that quota relevance and protection against disadvantage must be examined separately — the two questions are not answered together.

The AGG expressly also protects those around an incident. Under § 16(1) AGG, the employer may not disadvantage employees for asserting rights under this section or for refusing to carry out an instruction that infringes this section; the same applies to persons who support employees or give evidence as witnesses.

The internal channel for this is set out in § 13(1) AGG: employees have the right to complain to the competent bodies of the establishment, the undertaking or the public authority if they consider themselves disadvantaged on a ground named in § 1 AGG; the complaint must be examined and the outcome communicated. Under § 12(5) AGG, the Act and the information about the body competent for complaints must be published within the establishment. Outside the establishment, affected persons may turn under §§ 25, 27 AGG to the Federal Anti-Discrimination Agency (Antidiskriminierungsstelle des Bundes), which provides independent support, informs about claims, arranges advice and seeks an amicable settlement. Practice recommendation (not a statutory requirement): publish the information by notice board or intranet — the text of the Act, the named body and how to reach it — and include the same version in the onboarding materials.

7. Duties and time limits at a glance (Germany)

The following table brings together who is subject to which requirement and what triggers it. It lists exclusively statutory requirements of German law — practice recommendations are marked separately in the text; for Austria, see the section below.

The hiring process — step by step

The sequence brings together the requirements evidenced above; steps marked as practice recommendations are not statutory requirements.

1. Set out the selection criteria in writing before the first application arrives (practice recommendation).
2. Check the advertisement against § 11 AGG (practice recommendation) — the statutory requirement is: a position may not be advertised in breach of § 7(1) AGG; only include self-commitment statements if they can be complied with in the procedure (practice recommendation).
3. Examine whether the vacant position can be filled with severely disabled persons (§ 164(1) sentence 1 SGB IX, section 1); public-sector employers additionally notify the Federal Employment Agency and issue an invitation (§ 165 SGB IX; invitation under sentence 3, exception under sentence 4).
4. Conduct a structured interview with a score sheet and justify the selection decision in writing (practice recommendation).
5. Send the rejection — receipt of the rejection starts the two-month period under § 15(4) AGG; sending it with proof of receipt is a practice recommendation.
6. Keep the documentation complete until the period has expired (practice recommendation).