AGG Termination: 5 Discrimination Cases from BAG

Main article: § 22 AGG reversal of the burden of proof — prima facie evidence, reversal of the burden of proof and full proof in detail.

The five cases below show where dismissals and measures close to dismissal collide with protection against discrimination — and which provision applies in each instance. Three of the five cases are individual decisions of the Federal Labour Court (BAG); case 4 reflects its line of case law on illness-related dismissal, case 5 the line taken by the Court of Justice of the European Union (CJEU) on neutrality rules. The characteristics covered are sex, disability — in case 4 at the interface with illness — and religion. The recurring element is the evidence rule in § 22 of the German General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, AGG); it is set out below in the section on the test framework. Austria does not apply the AGG but the Austrian Equal Treatment Act (Gleichbehandlungsgesetz, GlBG) — with its own provisions, its own legal consequences and different deadlines: there, a dismissal or summary dismissal must be challenged within 14 days, whereas claims for refusal to establish an employment relationship must be brought within six months.

1. BAG 8 AZR 488/19 (21 January 2021): equal pay – median pay as prima facie evidence

If a woman's pay is below the median pay of the male comparison group, that is prima facie evidence of a disadvantage on grounds of sex (§ 22 AGG). The burden of proof is reversed: the employer must show that there was no breach of the equal pay requirement.

The statutory framework: for pay, § 7 EntgTranspG gives specific effect to the requirement not to agree or pay lower remuneration on grounds of sex for the same work or work of equal value; under EU law this rests on Art. 4 of Directive 2006/54/EC and, for the burden of proof, Art. 19 of Directive 2006/54/EC. The more recent line of case law is the practically relevant one: in its judgment of 23 October 2025 (8 AZR 300/24, Daimler Truck) the BAG clarified that a pair comparison with a single, highest-paid male colleague already triggers the presumption under § 22 AGG / § 7 EntgTranspG — a median comparison is not required for this. Practical recommendation: set out the pay criteria for each position in writing before pay is fixed. In Austria the same requirement follows from § 3 no. 2 GlBG (fixing of remuneration) and § 11 GlBG (non-discriminatory pay criteria in company classification rules). For dismissals the case is relevant because of the mechanism, not because of the pay: the same prima facie rule in § 22 AGG applies to the dismissals discussed below as soon as indications of a disadvantage on a ground under § 1 AGG have been proven.

2. BAG 8 AZR 333/20 (2022): disability + allocation of equipment

If a severely disabled employee is refused the assistive equipment required for their work, this may amount to a disadvantage under § 7 AGG — even without a dismissal being issued: the refusal operates as a de facto dismissal.

What matters legally here is how far § 7 AGG reaches: the prohibition of disadvantage also applies where the person acting merely assumes that a protected ground is present, and agreements that breach it are invalid (§ 7(1) and (2) AGG). It covers not only direct less favourable treatment but, under § 3(2) AGG, also indirect disadvantage: this exists where apparently neutral provisions are capable of putting persons at a particular disadvantage. For the area of sex, the concept is framed in parallel under EU law in Art. 2(1) of Directive 2006/54/EC; it does not apply there in so far as the provisions are objectively justified. A rule on equipment or allocation that formally applies to everyone can therefore disadvantage people without ever mentioning disability. The financial consequence is governed by § 15 AGG (see the test framework below). Practical recommendation: review rules on equipment and allocation to see whether they in fact put a group of persons under § 1 AGG at a disadvantage, and set out in writing the reasons for refusing a requested item of assistive equipment before the decision is taken — it is this statement of reasons that carries the proof required under § 22 AGG in the event of a dispute.

3. BAG 8 AZR 348/14 (2015): disabled applicant not invited

If a severely disabled applicant is not invited to an interview in the recruitment process, this may amount to a disadvantage under § 7 AGG.

For application scenarios, one particular feature of § 15 AGG is decisive — the cap: compensation under § 15(2) AGG may not exceed three monthly salaries only where the employee would not have been hired even in a selection free of disadvantage. The cap is therefore tied to that condition and does not concern the pecuniary loss under § 15(1) AGG. In addition, the limitation period in § 15(4) AGG runs, which, in the case of an application or promotion, starts when the rejection is received (details in the deadlines table). As to the procedure itself: § 164(1) sentence 1 SGB IX obliges all employers to examine whether vacant positions can be filled with severely disabled persons. The obligation to invite severely disabled applicants to an interview, by contrast, applies only to public-sector employers (§ 165 sentence 3 SGB IX; not required where professional suitability is manifestly lacking, sentence 4). For private employers, therefore, the examination obligation under § 164(1) sentence 1 SGB IX remains. For dismissals the case is relevant because of the legal consequences: there, too, the claim follows from § 15 AGG, only without the cap in subsection 2, which is tied to a failure to hire.

4. BAG line of case law on illness-related dismissal

Company integration management (betriebliches Eingliederungsmanagement, BEM) under § 167 SGB IX is the upstream step: without integration management, an illness-related dismissal is usually socially unjustified — and even with it, AGG protection must still be examined separately.

The AGG connection arises because disability is a protected ground under § 1 AGG: a dismissal that is based on illness-related absences may therefore also have to be measured against the prohibition of disadvantage in § 7 AGG — with the prima facie logic of § 22 AGG in the proceedings. Data protection belongs to the preparation: if the integration management documentation contains health data, these are a special category of personal data under Art. 9(1) GDPR and are subject to a general prohibition of processing with narrow exceptions (Art. 9(2) GDPR, for example explicit consent). Practical recommendation: keep integration management records separate from the personnel file and limit access to the persons involved in the procedure. A different basis applies in Austria — see the section on the legal position in Austria below.

5. CJEU line of case law on headscarves (C-804/18 and C-341/19)

A neutrality rule on clothing is permissible if it is enforced consistently; a dismissal because of a headscarf without such a rule is discrimination. The decisive ruling is the CJEU judgment of 15 July 2021 in the joined cases C-804/18 (IX v WABE) and C-341/19 (MH Müller Handel v MJ); the line of case law goes back to C-157/15 (Achbita, 14 March 2017).

In doctrinal terms this is the test path for indirect disadvantage under § 3(2) AGG (definition: section 2). Religion and belief are protected grounds under § 1 AGG; under EU law this follows from Art. 1 of Directive 2000/78/EC. Practical recommendation: put a neutrality rule in writing, word it identically across all characteristics and document its enforcement. In Austria, religion and belief are protected under § 17 GlBG; indirect discrimination is defined there in § 5 GlBG (Part I) and § 19 GlBG (Part II), as is the instruction to discriminate.

§ 7, § 15 and § 22 AGG: the AGG test framework for a dismissal

Three provisions determine whether a dismissal becomes AGG-relevant: § 7 AGG (prohibition), § 22 AGG (burden of proof) and § 15 AGG (legal consequence). § 7(1) AGG prohibits disadvantage on a ground listed in § 1 AGG — race or ethnic origin, sex, religion or belief, disability, age, sexual identity; the prohibition also applies where the ground is merely assumed, and conflicting agreements are invalid under § 7(2) AGG. § 22 AGG addresses the taking of evidence: if one party proves indications that give rise to a presumption of a disadvantage, the other party bears the burden of proving that there was no breach of the provisions protecting against disadvantage. In practice this means: the employer must positively demonstrate that the decision was free of discrimination — anyone who has not documented the operative reasons makes that proof considerably harder for themselves. § 15 AGG governs the consequence: compensation for the loss incurred (subsection 1, which does not apply where the breach of duty was not culpable), appropriate financial compensation for non-material damage (subsection 2) — in BAG practice typically one to three gross monthly salaries per claimant —, and assertion within two months in written form (subsection 4, with the possibility of a different collective agreement rule; for the start of the period see the deadlines table).

Dismissal after a complaint: the prohibition of victimisation

Anyone who complains about discrimination must not be disadvantaged for doing so — not even by a dismissal. § 16(1) AGG prohibits the employer from disadvantaging employees because they have exercised rights under the protection against discrimination or because they have refused to carry out an instruction that breaches it; the same protection applies to persons who support employees or give evidence as witnesses. The starting point is usually the right to complain under § 13(1) AGG: employees may complain to the competent bodies of the establishment, the complaint must be examined and the outcome communicated; the competent body must be made known in the establishment (§ 12(5) AGG). Under EU law, Art. 24 of Directive 2006/54/EC and Art. 11 of Directive 2000/78/EC require precisely this protection against dismissal as a reaction to a complaint. In Austria, § 13 GlBG (Part I) and § 27 GlBG (Part II) correspond to this — there, employees may not be summarily dismissed, given notice or otherwise disadvantaged as a reaction to an internal complaint or to proceedings that have been initiated. Practical recommendation: record the complaint process and the personnel decision separately on file, so that the closeness in time does not itself become prima facie evidence.

Deadlines and competent bodies: Germany and Austria

The sharpest divergence concerns the challenge to the dismissal itself: in Germany the three-week time limit for bringing an action under § 4 KSchG applies; in Austria the challenge must be brought within 14 days of receipt (§ 26(7) and § 12(7) GlBG respectively, in conjunction with § 29 and § 15 GlBG respectively). The AGG claims themselves run alongside this under the two-month time limit in § 15(4) AGG.

Protective practices for employers

Six steps improve the evidential position for a dismissal in an AGG dispute — each in the constellation for which it applies: integration management for illness-related dismissal (§ 167 SGB IX), involvement of the representative body for severely disabled employees and approval by the Integration Office (Integrationsamt) for severely disabled persons (§ 168 SGB IX), the maternity protection ban on dismissal for pregnant employees (§ 17 MuSchG), an AGG review of the operative reasons, written documentation before the decision, and legal review. Several of these at the same time produce the documentation that matters for the allocation of the burden of proof under § 22 AGG:

1. Integration management in cases of illness — carry out the procedure under § 167 SGB IX (practical recommendation: record the process in writing and keep the integration management records separate from the personnel file — health data, see section 4).
2. Involve the representative body for severely disabled employees — and obtain the approval of the Integration Office before dismissing a severely disabled person (§ 168 SGB IX).
3. Give pregnant employees special protection (MuSchG § 17) — the ban on dismissal under the German Maternity Protection Act (Mutterschutzgesetz, MuSchG) stands alongside the AGG, not in its place; sex is at the same time a protected ground under § 1 AGG.
4. Review the reasons for dismissal from an AGG perspective — measure the operative reasons against § 7(1) AGG, and do so also for indirect disadvantage under § 3(2) AGG (definition: section 2).
5. Written documentation — it is the basis for full proof under § 22 AGG. Practical recommendation: determine and record the selection criteria, the assessment standard and the operative reasons before the decision.
6. Legal review before dismissal — practical recommendation, in particular for dismissals of severely disabled persons, pregnant employees and employees who have previously raised a complaint under § 13 AGG.

In support of this, § 12(1) to (3) AGG requires, irrespective of the individual case, that the necessary and preventive measures be taken to protect against disadvantage and that their impermissibility be pointed out — appropriate training of employees is expressly regarded as fulfilling this duty. Where employees disadvantage others, the employer must take suitable measures such as a warning, redeployment, transfer or dismissal (§ 12(3) AGG).