AGG Top 6 Discrimination Traps 2026

The six traps concern different characteristics and different provisions, but they largely follow the same mechanism: a selection, promotion or pay decision leaves an indication, and from that point on the employer must prove that there was no infringement (§ 22 AGG); with job postings (trap 2) and with a dress code tailored to a single religious symbol (trap 6), the rule itself may already be the infringement. Each section therefore names the same triangle: the risk, the governing source and the measure that carries the evidence in a dispute. In Germany the legal basis is the AGG; in Austria there is no AGG, but the Austrian Equal Treatment Act (GlBG) — for disability, the Disability Employment Act (BEinstG). The differences are set out below in the DE/AT table and in the Austria section.

1. Applicant selection using AI recruiting

Anyone who pre-sorts applications algorithmically must be able to explain the selection: where indications of a disadvantage are proven, the employer bears the full burden of proving that there was no infringement (§ 22 AGG) — and only someone who can examine the logic of the pre-selection is able to furnish that proof.

Risk: the reversal of the burden of proof under § 22 AGG applies where selection anomalies are statistically significant; AGG damages are typically 1–3 gross monthly salaries per claimant (§ 15 AGG); with systematic AI discrimination, a multiplication of the number of claimants is possible.

The second regulatory circuit is the AI Act, Regulation (EU) 2024/1689: Annex III no. 4 covers 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 applications and to evaluate candidates. Under Art. 6(2), these systems qualify as high-risk AI. Under Art. 113, the general date of application is 2 August 2026; that date has passed. However, under Regulation (EU) 2026/1744 (Digital Omnibus AI), in force since 27 July 2026, the high-risk obligations of Chapter III Sections 1 to 3 apply to Annex III systems only from 2 December 2027 (Art. 113(3)(c)(i) AI Act as amended); for Annex I systems, 2 August 2028 applies. Re-check the legal position before every procurement decision. For the employer as deployer, this entails, from 2 December 2027 among other things: operation in accordance with the provider's instructions (Art. 26(1)), 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 it is put into service at the workplace (Art. 26(7)). Infringements of deployer obligations are subject to fines of up to EUR 15,000,000 or 3 % of total worldwide annual turnover, whichever is higher (Art. 99(4) AI Act). Data protection law adds the right of access: on 27 February 2025 the Court of Justice of the European Union held (C-203/22, Dun & Bradstreet Austria) that in the case of automated individual decisions, data subjects may request meaningful information about the logic involved — a blanket invocation of trade secrets is not sufficient. As a directly applicable regulation, the AI Act applies in Germany and Austria alike.

Fix: transparent selection criteria fixed in writing in advance; document a human review of every algorithmic preliminary decision before the final rejection; retain logs under Art. 26(6) AI Act for at least six months; as a rule, the fundamental rights impact assessment under Art. 27(1) AI Act does not apply to private recruiting users (Annex III no. 4); it remains possible on a voluntary basis and can run alongside a data protection impact assessment that is required in any event under Art. 35 GDPR — reasoning in the FAQ. Practice recommendation: set the selection criteria before the first application arrives, conduct structured interviews with a score sheet, give written reasons for every selection decision and run the applicant management system with an audit trail — it is precisely these records that later carry the evidence under § 22 AGG. Also a practice recommendation: run the bias test as a statistical evaluation of the algorithm's previous decisions by protected characteristic with documented mitigation before productive use and thereafter at recurring intervals, conduct the initial selection anonymously (without name, photograph or date of birth) and agree audit and information rights in the contract with the provider.

2. Job postings containing prohibited terms

The text of the advertisement is the first checkpoint, because it may itself already constitute the infringement: § 11 AGG prohibits advertising a job in breach of the prohibition of disadvantage in § 7(1) AGG.

Risk: 'young team' = indication of age discrimination (§ 22 AGG); the legal consequence is appropriate monetary compensation under § 15(2) AGG.

Typical triggers are formulations that indirectly convey a protected characteristic: age markers such as 'young' or 'dynamic', origin markers such as 'with a German passport' or 'German as a native language' — the defensible wording instead is 'very good German language skills' — as well as a tendency clause where the establishment's tendency status is not even established. The gender-neutral addition 'm/w/d' in the job title is part of the minimum standard. However, it does not cure other errors in the text, and the pronouns in the body text must remain neutral as well. Under EU law, Art. 5(3) of Directive (EU) 2023/970 additionally requires (effective only with the transposition act, see FAQ) that job postings and job titles be gender-neutral and that recruitment processes be conducted in a non-discriminatory manner. In Austria, the requirement of gender-neutral advertising is set out in § 9 GlBG: a job must not be advertised for men only or for women only, unless a particular sex is an indispensable requirement of the activity; gender-related remarks are inadmissible. There, the sanction is not damages payable to applicants but an administrative fine of up to EUR 360 imposed by the district administrative authority (§ 10 GlBG). For Germany, the following also applies: for applications made without any intention of taking up employment, the Federal Labour Court (BAG) held in its judgment of 19 September 2024 (8 AZR 21/24) that no compensation is owed.

Fix: AGG audit of the advertisements, m/w/d standard, neutral language. Practice recommendation: check every advertisement against a fixed list before publication — age markers, origin and language requirements, m/w/d in the title, pronouns in the body text, tendency clause only where the establishment's tendency status is established and documented, otherwise delete it — and document the approval and the date of review for each advertisement.

3. Pay equity under EU pay transparency

Alongside the reported pay gap, what matters above all is whether each individual pay decision can be justified: for equal work or work of equal value, no lower pay may be agreed or paid on grounds of sex (§ 7 German Pay Transparency Act (EntgTranspG), prohibition of disadvantage § 3 EntgTranspG; under EU law Art. 4 of Directive 2006/54/EC). Which activities are of equal value is determined by a gender-neutral job evaluation; Art. 4 of Directive (EU) 2023/970 sets the standard for this (effective for private employers only with the transposition act, see FAQ); the criteria for assessing the value of work are named in Art. 4(4): skills, effort, responsibility and working conditions. In Austria, the same follows from § 3 no. 2 GlBG (setting of pay) and § 11 GlBG (non-discriminatory pay criteria in company classification schemes).

Risk: a Joint Pay Assessment under Art. 10(1) of Directive (EU) 2023/970 becomes due only for employers subject to the reporting duty under Art. 9 — and only where all three conditions are met together: a difference of at least 5 % in the average pay level in a category of workers ((a)), no justification on the basis of objective, gender-neutral criteria ((b)) and no remedy within six months of the date of the pay reporting ((c)).

Sanctions: Art. 23(1) and (2) of the Directive requires effective, proportionate and dissuasive penalties including fines that are 'laid down in accordance with national law' (Art. 23(2) of Directive (EU) 2023/970). The Directive itself names no amount; the transposition deadline in Art. 34(1) of Directive (EU) 2023/970 (7 June 2026) has passed, and as at 17 August 2026 a German transposition act had not even reached the stage of a ministerial draft (BT-Drs. 21/7026). Specific fine levels will only follow from the national transposition law.

German case law is already of practical relevance today: on 21 January 2021 (8 AZR 488/19) the Federal Labour Court (BAG) recognised the median pay of the comparator group as an indication; on 16 February 2023 (8 AZR 450/21) it held that 'better negotiating skills' do not justify a pay difference; and on 23 October 2025 (8 AZR 300/24, Daimler Truck) it clarified that even a pairwise comparison with a single, highest-paid male colleague triggers the presumption — a median comparison is not required for this. The right to information under §§ 10 to 12 EntgTranspG exists in establishments with, as a rule, more than 200 employees; the comparator pay need not be stated where the comparable activity is performed by fewer than six employees of the other sex. By contrast, Art. 7 of Directive (EU) 2023/970 provides for a size-independent right to information with a response period of two months (effective for private employers only with the transposition act, see FAQ).

The following reporting duties are set out in the Directive; the transposition deadline (7 June 2026) has passed and, as at 17 August 2026, a German transposition act was not in place — for private employers the duties arise only with that act (details in the FAQ).

Fix: Preparing for the Directive's duties — for private employers they arise only with the national transposition act (see FAQ): calculate the pay difference per category of workers performing equal work or work of equal value and measure it against the 5 % threshold in Art. 10(1)(a) of Directive (EU) 2023/970 — it is already reached at exactly 5 %; from that point, justification and the six-month remedy ((b) and (c), see the risk line) determine whether the joint pay assessment becomes due. Frame the criteria for pay determination, pay levels and pay progression objectively and gender-neutrally (Art. 6(1) of Directive (EU) 2023/970); recording them in writing as well is a practice recommendation. Define categories of workers performing equal work or work of equal value along the four criteria in Art. 4(4) of Directive (EU) 2023/970 and set up a response procedure for requests for information; giving written reasons for the allocation to each category is likewise a practice recommendation. Art. 5(2) of Directive (EU) 2023/970 also provides for a prohibition on asking about previous pay history. Practice recommendation: refrain from asking about previous pay history already now — and document the governing reasons for each pay decision before it is set, because that is the record that must withstand the rule on the burden of proof.

4. Discrimination in promotion

Career advancement is expressly addressed in the AGG — § 15(4) AGG names application and advancement side by side; promotion decisions are therefore just as relevant under the AGG as selection decisions at the hiring stage.

Risk: promotion statistics that are conspicuous by sex can be an indication within the meaning of § 22 AGG (statistics = indication); the legal consequences are damages and compensation under § 15(1) and (2) AGG.

The point of attack is rarely open unequal treatment but § 3(2) AGG: indirect disadvantage caused by apparently neutral provisions that are liable to put persons at a particular disadvantage. For the ground of sex, the same definition is set out in parallel in Art. 2(1) of Directive 2006/54/EC — it does not apply where the rule is objectively justified. A promotion criterion can therefore disadvantage without ever mentioning a protected characteristic. Two time limits run differently here: in Germany, the two-month period under § 15(4) AGG begins, in the case of advancement, when the rejection is received; in Austria, claims for a failed advancement must be asserted in court within six months of the rejection (§ 15 and § 29 GlBG respectively), and career advancement is expressly named in § 3 and § 17 GlBG. The prohibition of victimisation applies alongside: anyone who has asserted rights under discrimination protection, refused an unlawful instruction or given evidence as a witness must not be passed over for promotion on that account (§ 16(1) AGG; in Austria § 13 and § 27 GlBG respectively). Where the pre-selection is made with software support, the system additionally falls under Annex III no. 4(b) AI Act (AI systems for decisions affecting promotions); the obligations of Chapter III Sections 1 to 3 apply to Annex III systems from 2 December 2027 (Art. 113(3)(c)(i) AI Act as amended by Regulation (EU) 2026/1744).

Fix: document the promotion criteria, review the statistics annually. Practice recommendation on the arrangements: collect the promotion rate per hierarchy level by sex (the number of persons promoted relative to the number eligible for promotion), assign the evaluation to a named body and record the governing selection reasons in writing for each round — this record is the exculpatory evidence under § 22 AGG. The annual look at the statistics is a practice rhythm, not a statutory deadline — the pay transparency reporting duties become legally binding only after national transposition (see trap 3). Also a practice recommendation: set the criteria and the assessment standard before the position is advertised.

5. Disability discrimination in the application process

The widespread assumption that every employer must invite severely disabled applicants to an interview is incorrect — this duty applies only to public-sector employers.

Risk: the duty to invite does not apply to private employers — but an undocumented rejection can be an indication within the meaning of § 22 AGG.

§ 165 SGB IX bears the official heading 'Special duties of public-sector employers' and requires two things of them: notification of posts becoming vacant and posts to be newly filled to the Federal Employment Agency, and an invitation to severely disabled applicants to attend an interview (sentence 3) — dispensable where the professional suitability is manifestly lacking (sentence 4). The provision contains no rule of preference. By contrast, § 164(1) sentence 1 SGB IX applies to all employers in Germany: they must examine whether vacant posts can be filled with severely disabled persons. The widespread advertisement 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. Under data protection law, it should be noted that health data fall within the special categories of personal data under Art. 9(1) GDPR and are subject to a general prohibition on processing with narrow exceptions (Art. 9(2) GDPR). In Austria, disability is not a GlBG ground: discrimination on grounds of disability in working life is governed there by the Disability Employment Act (BEinstG) with the prohibition of discrimination in §§ 7a et seq., in particular § 7b, and outside working life by the BGStG; the German provisions of SGB IX do not apply there.

Fix: public-sector employers: invite automatically. All others: document the selection reasons in a comprehensible way. Practice recommendation: offer a barrier-free application process, name a designated contact for any necessary adjustments and keep health-related documents separate from the rest of the application file.

6. Religion + the headscarf dispute

A neutrality rule on dress is permissible — but only as a general rule enforced without differentiation; selective application to a single religious symbol tips it into discrimination.

Risk: CJEU C-804/18 and C-341/19 (WABE / MH Müller Handel, 15 July 2021); also C-157/15 Achbita (14 March 2017).

In doctrinal terms, this is the analytical path of indirect disadvantage under § 3(2) AGG: a dress code that formally applies to everyone can put persons at a particular disadvantage because of their religion. Religion and belief are protected grounds under § 1 AGG; under EU law this follows from Art. 1 of Directive 2000/78/EC, whose purpose is to combat discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation. For tendency undertakings, C-414/16 (Egenberger, 17 April 2018) is additionally relevant — a tendency clause therefore belongs only in advertisements for which the establishment's tendency status is established and documented. Under data protection law the limits are narrow: data revealing religious or philosophical beliefs are special categories of personal data under Art. 9(1) GDPR and are subject to a general prohibition on processing with narrow exceptions. 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) respectively.

Fix: a consistent dress policy or none at all. Practice recommendation: put the rule in writing, formulate it identically across characteristics — that is, do not tailor it to a single religious symbol —, name its scope and document its enforcement.

Burden of proof, time limits and legal consequences: the common framework

In Germany, three provisions determine the outcome in all six traps: the prohibition of disadvantage, the rule on the burden of proof and the legal consequence. § 7(1) and (2) AGG prohibits disadvantage on a ground named in § 1 AGG — the prohibition also applies where the person acting merely assumes that the ground is present, and agreements to the contrary are invalid. § 22 AGG shifts the burden of proof: where one party proves indications giving rise to a presumption of disadvantage, the other must prove that there was no infringement; under EU law this corresponds to Art. 19 of Directive 2006/54/EC, Art. 10 of Directive 2000/78/EC and Art. 8 of Directive 2000/43/EC. § 15 AGG governs the consequence: compensation for the damage incurred (para. 1, unless the employer is not responsible for the breach of duty) and appropriate monetary compensation for non-material damage (para. 2). The following table sets out statutory rules only; it contains no practice recommendations.

Organisational and protective duties: what applies irrespective of the individual case

In addition to the six traps, the employer in Germany owes a continuous organisational effort: § 12(1) to (3) AGG requires it to take the necessary measures to protect against disadvantage — including preventive measures — and to point out that such disadvantage is inadmissible. Suitable training of employees expressly counts as fulfilment of this duty. Where employees disadvantage others, the employer must take suitable measures such as a warning, redeployment, transfer or dismissal (§ 12(3) AGG). Added to this is 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 act and the information about the competent complaints body must be made known within the establishment (§ 12(5) AGG). Under EU law, Art. 26 of Directive 2006/54/EC requires Member States to encourage employers to take effective measures to prevent all forms of discrimination on grounds of sex and, in particular, harassment and sexual harassment in the workplace. In Austria, external advice is provided by the Ombud for Equal Treatment (§ 3 GBK/GAW-Gesetz); protection against retaliation for an internal complaint is set out in § 13 and § 27 GlBG respectively.

Practice rhythm (not a statutory deadline but a recommendation from implementation practice): schedule AGG training during onboarding and thereafter at recurring intervals, review the publication of the complaints body at every relocation or reorganisation step, and retain the advertisement and selection documentation not only until the period for asserting claims expires but until any resulting proceedings have concluded — the two-month period in § 15(4) AGG marks the beginning of the dispute, not its end; for Austria, the differing GlBG periods run up to one year and the three-year limitation period for pay and material claims applies under § 1486 ABGB (details in the table in the section 'Burden of proof, time limits and legal consequences').