applying for a pregnant female employee to a higher position in the company and occupied the employer, the pregnancy is known, the place with a man, then the employee a gender discrimination prima facie evidence when it states, except in pregnancy more facts suggest a disadvantage because of their gender. At this next statement of fact, no strict requirements are placed.
The case: The plaintiff was
since April 2001 worked for the defendants, most recently as one of three department heads in the "International Marketing". Her boss was the Vice President. After his place had become vacant, decided the defendant, not to fill the position with one of the two male department heads from the field and with the applicant. This was when the decision pregnant, what did the defendant.
coveted With its application, the applicant to pay damages because she was with the promotion decision was discriminated against because of her sex:
The negative selection decision was made for her because of her pregnancy and subsequent motherhood. Even at the announcement of its failure to take account that the defendant on her family situation noted.
The Labour Court granted the application, the LAG, it dismissed the appeal by the defendant and affirmed the decision to repeal the decision and referred back by the BAG in the result.
The BAG had assumed that the applicant has presented facts that their gender discrimination under § 611a para 1 BGB (valid until 17.8.2006, then: AGG) suggest could. In his new ruling took the LAG after inquiry, that the other facts presented by the applicant no presumption of discrimination because of their sex could give rise to the promotion decision.
On appeal, the applicant raised the BAG's decision was on again, and dismissed the case for a new trial and decision of the LAG.
The grounds of the BAG:
It can not be a final decision on whether a discrimination is to suggest to the applicant because of her sex. In the present situation is a sex-discrimination prima facie evidence when in the circulation passed over a worker other than the pregnancy further facts claimed, the suspect can be a disadvantage because of their gender. At this next statement of fact, no strict requirements are placed.
according to these principles was the decision of the LAG annulled because the latter before the fact-finding and the denial of the presumption of discrimination against the applicant's right to have made mistakes.
(BAG, decision of 1/27/2011, 8 AZR 483/09)
Background:
Already by order of 07.22.2010 (ref. 8 AZR 1012/08) had the Senate on a gender discrimination in a to decide promotion decision, and in this The case of Berlin-Brandenburg, the applicant had, in particular therefore awarded compensation because women were underrepresented in the boardroom of the company.
The BAG also repealed the decision and explained this as follows: From statistics could Although grds. Evidence of a gender discrimination made. Just the fact that in the upper levels of the hierarchy of the employer of women was significantly lower than in the entire company, is still no indication of a gender discrimination against women in promotion decisions
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