Direct Discrimination

§ 3(1) AGG — direct unfavourable treatment

26 April 2026 · Category: AGG · Compliance-Kit

TL;DR

Direct discrimination is unfavourable treatment that occurs directly because of a characteristic listed in § 1 AGG. The comparison is with an actual or hypothetical person in a comparable situation.

What is direct discrimination?

Characteristics under § 1 AGG:

Race / ethnic origin
Gender
Religion / belief
Disability
Age
Sexual identity

Practical example

A job advertisement for a 'young team' (age), rejection because of pregnancy (gender), a pay difference between Catholics and Muslims (religion) — all direct discrimination.

Legal position: Germany and Austria

The concept of direct discrimination is governed by separate statutes in Germany and Austria. The definition is comparable in substance, but the relevant sections and competent bodies differ.

Germany (AGG)

Definition: Direct unfavourable treatment exists where a person receives less favourable treatment because of a ground named in § 1 (§ 3(1) of the German General Equal Treatment Act (AGG)).
Protected characteristics: race/ethnic origin, gender, religion/belief, disability, age, sexual identity (§ 1 AGG).
Burden of proof: § 22 AGG — anyone who proves indicative facts suggesting unfavourable treatment shifts the burden of proof to the other side.
Competent bodies: Federal Anti-Discrimination Agency (Antidiskriminierungsstelle des Bundes); labour courts.

Austria (GlBG)

Definition: Direct discrimination exists where a person receives less favourable treatment in a comparable situation — § 5 GlBG (Part I, gender) or § 19 GlBG (Part II, remaining grounds).
Protected grounds: gender (§ 3 of the Austrian Equal Treatment Act (GlBG)) as well as ethnic affiliation, religion or belief, age and sexual orientation (§ 17 GlBG).
Burden of proof: § 12(12) GlBG (Part I) or § 26(12) GlBG (Part II) — the person affected must establish the discrimination as credible; the defendant must then prove that, weighing all circumstances, another motive was more probable or that a ground of justification applies.
Competent bodies: Ombud for Equal Treatment (GAW); Equal Treatment Commission (Gleichbehandlungskommission); labour and social court.

Frequently asked questions

Burden of proof?

§ 22 AGG: the applicant/employee must prove indicative facts, the employer must provide full proof of non-discrimination.

Compensation?

§ 15 AGG: compensation for pecuniary loss unless the employer is not responsible for the breach (§ 15(1)), and appropriate monetary compensation for non-pecuniary damage (§ 15(2)). In the case of non-recruitment, compensation is capped at three months' salary if the person would not have been hired even with a non-discriminatory selection. Claims must be asserted in writing within two months (§ 15(4) AGG).