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Section 22 AGG — Reversal of Burden of Proof

Simplified evidentiary requirements for discrimination claims.

Definition

§ 22 of the German General Equal Treatment Act (AGG) lowers the evidentiary requirements for claimants: where there is an indication of discrimination (for example an unsuitable job advertisement), the employer must prove the opposite — that is, that no discrimination took place. The practical consequence: clean documentation of selection decisions improves the employer's position in presenting its case in a dispute (practical recommendation, not a statutory documentation duty).

A note on the term: 'reversal of the burden of proof' is the common, slightly abbreviated label for the easing of the burden of proof ordered by § 22 AGG — it is enough to make indications credible; the full burden of proving that no discrimination occurred then lies with the opposing party.

The principle — indications from the affected person, counter-evidence from the employer side — applies equally in Germany and Austria, but it is set out in different statutes and with different competent bodies.

Germany — § 22 AGG

If, in a dispute, one party proves indications suggesting discrimination on one of the grounds named in § 1 AGG, the other party (usually the employer) bears the burden of proving that there was no breach of the provisions protecting against discrimination. The competent courts are the labour courts or — for claims under civil law — the ordinary courts.

Austria — § 12(12) / § 26(12) GlBG

The Austrian Equal Treatment Act (GlBG) provides a corresponding easing of the burden of proof: if the affected person invokes a ground of discrimination, they must make it credible (§ 12(12) for Part I — equal treatment in working life; § 26(12) for Part II — equal treatment irrespective of ethnic origin and other grounds). It is then for the respondent to prove that, weighing all the circumstances, it is more likely that another motive was decisive for the difference in treatment or that a justification exists. The claim is decided by the Labour and Social Court; the Ombud for Equal Treatment (GAW) and the Equal Treatment Commission (Gleichbehandlungskommission) provide advice and support.