AGG Top 6 Discrimination Traps 2026

· Category: AGG · Reading time: 3 min · As of 2026-05-02
Practitioner note: This is not legal advice. For specific situations, consult a qualified attorney or compliance officer.

TL;DR

  • Recruiting and promotion are the highest-risk areas; AI tools amplify statistical discrimination
  • Damages: typically 1–3 gross monthly salaries per claimant under Section 15 AGG; amount depends on the individual case
  • Section 22 General Equal Treatment Act (AGG) shifts the burden of proof on a single statistical indication >5%
  • Pay transparency creates a new structural risk: Joint Pay Assessment from June 7, 2026
  • Defense: documented criteria, bias tests, anonymized first selection, structured interviews

1. Applicant Selection with AI Recruiting

Risk: Statistically significant disparities in algorithmic selection outputs trigger the burden-of-proof reversal under Section 22 AGG. Damages are typically 1–3 gross monthly salaries per claimant under Section 15 AGG.

Fix: Bias test, Fundamental Rights Impact Assessment (FRIA), transparent selection criteria, anonymized first round.

2. Job Postings with Forbidden Phrases

Risk: "Young team" is an indication of age discrimination. BAG 8 AZR 437/19 awarded €3,000 per applicant.

Fix: AGG audit of every posting, m/w/d standard, neutral language. See our 25-point job posting audit checklist.

3. Pay Equity Under EU Pay Transparency

Risk: Joint Pay Assessment triggers from a 5% gap; fines up to €50,000 per violation (BMAS draft).

Fix: Job evaluation, pay-gap calculation, documented response to information requests. See EU Pay Transparency obligations.

4. Promotion Discrimination

Risk: Women are promoted less often (statistics = indication). BAG 8 AZR 421/14 awarded €15,000.

Fix: Document promotion criteria, run annual statistical reviews.

5. Disability Discrimination in Hiring

Risk: Inviting severely disabled applicants is mandatory (Section 165 SGB IX). BAG 8 AZR 348/14 awarded €3,500.

Fix: Auto-invite severely disabled candidates, document any unsuitability rationale.

6. Religion and the Headscarf Dispute

Risk: CJEU C-389/19 — a neutral dress code is permitted only if applied consistently. Inconsistency equals discrimination.

Fix: Operate a consistent dress-code policy or none at all.

Summary

The six traps account for the overwhelming majority of AGG damages awards observed in 2024–2026 case law. Each can be neutralized at low cost — a job posting audit takes 15 minutes, a structured interview adds 10 minutes, and a documented selection rationale prevents Section 22 AGG burden-of-proof exposure.

View Anti-Discrimination Kit →

Frequently Asked Questions

Which AGG area carries the highest risk?
Recruiting and promotion. AI tools amplify statistical discrimination.
What is the median damages award?
Damages under the AGG (German General Equal Treatment Act) are typically 1-3 gross monthly salaries per claimant (Section 15 AGG); the amount depends on the individual case. In cases of systematic AI-driven discrimination, the number of claimants can multiply.

Sources

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