AGG Employer Liability

§ 12 + § 15 AGG — protective duties and damages

What is AGG employer liability?

Liability framework:

• § 15(1): financial loss — in full
• § 15(2): non-material damage — appropriate monetary compensation
• § 12: no direct liability, but an indication under § 22

Practical example

A superior harasses an employee. The employer has not set up a complaints office. Liability risk: compensation for financial loss (§ 15(1) AGG) and appropriate monetary compensation for non-material damage (§ 15(2) AGG).

Legal position in Germany and Austria

Employer liability for discrimination is governed separately in each country — different statutes, sections and competent bodies:

Germany (AGG)

• Duty of protection (§ 12(1) to (3) AGG): the employer must take the measures necessary to protect against discrimination, including preventive measures; suitable training of employees counts as fulfilment of this duty.
• Damages (§ 15(1) AGG): compensation for the loss incurred — unless the employer is not responsible for the breach of duty.
• Compensation (§ 15(2) AGG): appropriate monetary compensation for non-material damage; in the case of a refusal to hire, no more than three months' salary where the person would not have been hired even in a discrimination-free selection process.
• Burden of proof (§ 22 AGG): anyone who proves indications suggesting discrimination shifts the burden of proof to the employer.
• Competent bodies: labour courts; Federal Anti-Discrimination Agency (Antidiskriminierungsstelle des Bundes).

Austria (GlBG)

• Liability/compensation (§ 12 of the Austrian Equal Treatment Act (GlBG) for Part I / gender, § 26 GlBG for Part II / the other grounds): compensation for financial loss and compensation for the personal impairment suffered.
• Minimum amounts: if the position would have been obtained in a discrimination-free selection process, at least one month's pay; if the loss consists only in the application not being considered, up to EUR 500. In the case of harassment at least EUR 400, and in the case of sexual harassment (§ 12(11) GlBG) at least EUR 720.
• Harassment (§ 6 GlBG, Part I): harassment and sexual harassment are separate forms of discrimination.
• Burden of proof (§ 12(12) GlBG and § 26(12) GlBG respectively): the person concerned must credibly demonstrate the facts of the discrimination; it is then for the employer to prove that another motive was more probable or that a justification exists.
• Competent bodies: labour and social court; Ombud for Equal Treatment (GAW).

See also

• § 12 AGG
• Complaints office
• § 22 AGG