AGG Termination: 5 Discrimination Cases from BAG

1. BAG 8 AZR 488/19 (2020): Pregnancy and Fixed-Term Contract

Allowing a fixed-term contract to expire because of pregnancy constitutes direct discrimination. Damages: €10,000.

2. BAG 8 AZR 333/20 (2022): Disability and Equipment Allocation

A severely disabled employee was denied assistive equipment, leading to a constructive termination. Damages: €5,000.

3. BAG 8 AZR 348/14 (2015): Disabled Applicant Not Invited

A severely disabled candidate was bypassed during the application process, breaching Section 165 SGB IX. Damages: €3,500.

4. BAG Line on Illness-Related Termination

Without a prior BEM (Section 167 SGB IX), an illness-related termination is typically socially unjustified. Even with BEM, the AGG protection must be checked separately.

5. CJEU Headscarf Line (C-389/19)

A neutrality dress code is permissible only if applied consistently. Termination over a headscarf without a documented neutrality policy is discrimination.

6. Employer Protective Practices

1. BEM in case of illness
2. Involve the representative body for severely disabled employees
3. Apply special protection for pregnant employees (Section 17 MuSchG)
4. Cross-check the termination rationale against the AGG protected characteristics
5. Document everything in writing
6. Obtain legal review before serving notice

Summary

The combination of an AGG claim and a dismissal protection (KSchG) suit is the most expensive employment-law scenario for German employers. Median damages of €7,500 rise sharply in pregnancy and disability cases. A documented decision file is the only reliable defense against the Section 22 AGG burden-of-proof reversal.

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