Indirect Discrimination

§ 3(2) AGG — a neutral rule with a discriminatory effect

What is indirect discrimination?

Examples:

• A minimum height of 1.75 m for the police (indirectly discriminates against women)
• A 'full-time only' clause (indirectly against women)
• A C1 language test for a cleaning job (indirectly against migrants)
• AI recruiting with a bias towards CV formatting (indirectly against younger applicants)

Practical example

Minimum height of 1.75 m: 95% of men meet it, 35% of women. Indirect discrimination — objective justification required (rarely available).

Legal position in Germany and Austria

Germany

The governing provision is § 3(2) AGG: indirect unfavourable treatment exists where apparently neutral provisions, criteria or practices are liable to put persons at a particular disadvantage compared with other persons because of a ground named in § 1 AGG — unless they are objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. The competent body is the Federal Anti-Discrimination Agency (Antidiskriminierungsstelle des Bundes); claims are enforced before the labour courts (in civil matters before the ordinary courts).

Austria

In Austria, the Austrian Equal Treatment Act (GlBG) governs indirect discrimination separately by field of protection: § 5 GlBG (Part I, gender) and § 19 GlBG (Part II, the remaining grounds such as ethnic affiliation, religion or belief, age or sexual orientation). Indirect discrimination exists where apparently neutral provisions, criteria or practices are liable to put persons at a particular disadvantage, unless this is objectively justified. Those affected are advised and supported by the Ombud for Equal Treatment (GAW); the Equal Treatment Commission (Gleichbehandlungskommission) can decide whether discrimination has occurred.

See also

• Direct Discrimination
• § 12 AGG
• § 22 AGG