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BAG: disabled - but not severely disabled - Applicants may not refer to the SGB IX, but certainly on the AGG appointed

Who Disabled but not severely disabled or severely disabled People can be treated, in order to block a claim of disability discrimination only on the AGG. An (appropriate) use of the safeguard provisions in Book IX is carried out with the AGG since the implementation of the Framework Directive 2000/78/EC into German law no longer under consideration.

The Case::
The applicant has completed training to include a health clerk. At her request, the Supply Office finds in her a degree of disability (degree of handicap) of 40. Your application to be treated as severely disabled people had not been met.

The applicant applied to the defendant for a job as a secretary the chief consultant and pointed out explicitly in the present with her degree of handicap of 40. The defendant occupied the position taken with another candidate, but for the provisions in Book IX for the protection of disabled people, or invite the applicant to an interview to have.

With its application, the applicant requested compensation for discrimination as disabled. Although it is neither difficult nor hindered had been identified as suffering from severely disabled people with equality, the latter had been promised her but in case of need. The defendant was suitable for the job several times violated the SGB IX, which trigger the presumption that the refusal to pay its Disability played a role. This presumption that the defendant had to be overturned.

The complaint was not successful in all instances.

The grounds of the BAG:
the applicant against the defendant has no right to compensation. The defendant had the applicant not be treated in accordance with the rules in Book IX, as the applicant does not fall under the scope of the law. The SGB IX applies only to severely disabled people with a degree of handicap of 50 or at least treated as such by a formal man.

However, since August 2006 are all disabled people under the protection of the AGG. The applicant has, however, rely solely on the violation of rules in Book IX and not supported by facts that trigger the presumption of discrimination within the meaning of the AGG. After having reacted with the AGG under the Directive 2000/78/EC of the Council of 27/11/2000 in German law, is necessary in the meantime shall apply the rules in Book IX at people with severe disabilities are no longer considered.
(BAG, decision of 1/27/2011, 8 AZR 580/09)

Notes:
The ruling clearly indicates that those who obstruct, but is not severely disabled are not solely rely on the AGG has provided he or she is discriminated against because of disability sees, but also must rely and that - important! - Who does, this must make it clear against the employer and in a trial, citing the facts according AGG evidence. § 22 AGG must recite:
Who makes claims under the Equal Treatment Act claim, there must be that he or she happened to discrimination not prove, but he or she has to discriminate only credibly, that evidence put forward that the alleged discrimination appear likely.
If successful, this will reverse the burden of proof, namely, and about the defendant employer must now provide the full proof that he or she has not discriminated against .
As such evidence, even "presumption facts', and makes the law apply to statistics, as such, which indicated that the defendant companies - or in the industry or on the site - or no noticeable few disabled people employed are.
So: Take heart!
is also disabled - again, not only severely disabled! - Can sue - people now in the United Nations Disability Convention to the side, which means people with disabilities their right to participate - even just in working life.
Oh yes: disabled people can, of course, both rely on the SGB IX and on the AGG and proceed according to two laws against discriminatory employers!