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LAG Bremen: Termination for "Russian accent" justify damages - action it possible without a dismissal action

§ 2 paragraph 4 AGG, which solely for the dismissal Provisions for general and special protection against dismissal is valid, according to a compensation claim. § 15 para 2 of AGG of contract. workers must nevertheless not initially against the discriminatory termination claim before they can make a compensation claim under the AGG.

The facts:
The applicant, a German national who speaks with a Russian accent was an employee of the defendant carrier since 20.01.2009 as a clerk.

Even during the six month trial period the applicant, there was a conversation with the new manager of the defendant. This suggested that the customer the defendant because of the Russian accent would scare the applicant. The defendant can not afford to staff to deal with stress. The clients would think, "What a shit-load, in which only foreigners to be employed." Since that conversation

could no longer service the applicant on the phone. Two weeks after the interview, the defendant, the probation termination of employment with the applicant said.

By this action, the applicant asked for compensation under the AGG. They had been discriminated against because of their ethnic origin. The employment tribunal said its compensation in the amount of three gross monthly salaries. It against that of the defendant's appeal was unsuccessful. The LAG was, however, because of fundamental importance to the matter an appeal to the BAG.

The reasons: The applicant can
by the defendant for compensation according to § 15 paragraph 2 of AGG in the amount three times their monthly earnings call. The termination is not because of lack of language skills of the applicant will be, but for her - because of the accent audible - the source from the Russian-speaking world. This constitutes an impermissible discrimination based on ethnic origin.

The compensation is not in sec. § 2 para 4 AGG excluded. How is this exclusive arrangement is understood, is indeed controversial. Wording and purpose of the provision say but why only to review the effectiveness of a termination should be excluded under the AGG, but not the assertion of claims for breach of personal rights. Therefore, in cases of discriminatory dismissal without bringing an action for dismissal, compensation in accordance with § 15 para 2 AGG required.

The Labour Court has fixed the amount of compensation is also right to three months' salary. be taken into account was that the comments of the manager offensive character had, and the applicant was thereby reduced in a special way. Therefore, compensation was fixed, which was a sensible response to this discrimination. Because of the severity of discrimination against a compensation amounting to three months earnings was also not prevent the applicant does not challenge the trial period of one month notice could resist.
(LAG Bremen 29.06.2010, 1 Sat 29/10)

Note: To welcome
is that the LAG Bremen made it clear once again that the so-called "exclusivity arrangement" of the controversial and probably illegal europe § 2 para AGG 4 the assertion of claims does not preclude.
welcomed the "clear statement" of the court by which the discriminatory comments of the manager rightly be described as "insulting".
But why the applicant will either only 3 months' salary for pain claim did - then she may advise not good - or did, but granted the court by itself so little - then, in disregard of European law - is in each of the two alternatives angrily
because the EU policies that are implemented by the AGG require the Member States, it clearly for cases of discrimination "effective and dissuasive provide for penalties " - to that standard, the courts are bound
It would therefore in this case, an amount must be ejected, who does the defendant company really hurt -. from this requirement, only 3 months' salary can not be assumed - not understandable, therefore, remains why the LAG calls this yet even as a "sensible response".
is informed by the court of the dismissal to be void as declared unlawful, because that it does not matter whether the applicant was still in the probationary period and employment protection law for them was not provided the trial period no longer than 6 months and was the termination before which was:
terminations that violate legal prohibitions, namely gem. § 134 BGB void.
not be revealed, unfortunately, not whether the plaintiff in the case of job loss in addition to pain and suffering and its rightful claim to compensation for their material damage gem. § 15 para 1 AGG has argued:
If they should have actually lost their dArbeitsplatz result, this claim covers approximately the content of their result in the loss for at least 5 years, as statistically considered a labor contract in Germany on average lasts so long.
addition, the damage claim would of course all include other material costs of job loss, such as new application costs, interest, etc. MRP

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BAG: Only with timely applications, a AGG-infringement are asserted

Compensation under the AGG because of discrimination in the appointment procedure is considered only if the application at the time of the recruitment decision already existed. This also applies when a vacancy, although it has already done, is still on the website of the employer. A late application, an employer must take into account also can not, if he has the vacant post does not appear to duty at an early stage of the employment agency.

The facts:
The severely disabled applicant has a degree in engineering from the Department of Electrical Engineering. He discovered at 29.12.2007 on the websites of the defendant to a vacancy, was with a "creative development engineer for digital electronics (m / w) looking for. That same day he applied for the position. He received a rejection because the defendant the place by mid-December with another candidate and just filled the vacancy is not taken from their websites had.
In his application, the plaintiff demanded compensation for the AGG because the defendant had discriminated against him by not adhering to the rules regarding promotion of the SGB IX. Had the defendant taken at an early stage with the Agency for work, he would have from this an indication of the vacancy shall be obtained from the defendant. He would then face the alleged occupation of the site can advertise and had been well set.
The complaint was not successful in all instances.

The reasons: The plaintiff may
of the defendants did not ask for compensation under § 15 para 2 AGG.

The applicant is due to its application for an advertised as being open to the body while "employees" and thus potentially become beneficiaries as defined in § 15 para 2 AGG.
Since the site but already before receipt of his application had been occupied, he has experienced as "employee" no disadvantage. The defendant did not - I promise not to fill the position for a certain time - for instance by giving a deadline.
Whether the plaintiff is entitled to damages for the futile from the outset for this job was not to decide, because such a claim had not been redressed.
(Federal Labour Court, decision of 8/19/2010, 8 AZR 370/09)

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applicants only with comparable qualifications, a discrimination within the meaning of AGG and enforce

compensation or damages claims under the Equal Treatment Act for discrimination in the application process will only be considered if the application is similar to that of other applicants. This is determined in relation to that of your employer-developed requirements, if this general after the Traffic view seems plausible.

The facts:
The applicant is German of Turkish origin and a member of any Christian church. She has completed training as a travel agent and then gained experience in projects with people from immigrant backgrounds.

The defendant is part of the Protestant Church. He was looking for a temporary to eleven months Project site "training of multipliers / s in the vocational integration of adult migrants / en" a specialist

* with a degree in social science / social
* and experience in project work as well as competence in the project-specific issues,
* listened to a Christian church.

The applicant applied for the job and then received a call from an employee of the defendant, who pointed out that the entrance to the church was an essential prerequisite for the job. was set, a candidate of Indian descent who have a university degree have a "qualified social scientist" and their previous professional life was strongly focused on the issues of "socialization" and "migration", the applicant subsequently received a rejection.

With its application, the applicant requested compensation for direct and indirect discrimination based on religion Discrimination because of their ethnic origin. The Labour Court granted the application, the LAG, rejected it. It against that revision of the applicant was not a success.

The reasons: The applicant has
home against the defendant any compensation claim under § 15 AGG because of discrimination based on religion or ethnic. One immediate disadvantage because of a proscribed characteristic of AGG to be done in a similar situation. Is the person "employed" First applicant, this application must be comparable to that of the other applicants. This is assessed in the to / from the employer developed requirements, if this general after the Traffic view seems plausible.

is according to these principles before the dispute is no entitlement to compensation discrimination. It was not even necessary to determine whether the applicant has been directly discriminated against because of religion, or indirectly because of their ethnic origin. For in her application she was not in a "similar situation" to the candidate eventually selected by the defendant because the applicant other than these did not have a university degree.

be criticized for not that the defendant had made a relevant degree a prerequisite for employment. In a training project for multipliers in social work, it corresponds to the traffic view to require a college education. The defendant has in his recruitment decision not solved by this requirement.
(Federal Labour Court, decision of 8/19/2010, 8 AZR 466/09)

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BAG: Search for "young" applicants obliged employers to pay compensation for injuries and

Principle (Peter Weiss): A vacancy principle contrary to the age discrimination prohibition when a "young" applicants a "young" candidate is being sought.

born in 1958, plaintiff is a qualified lawyer. He applied in 2007 to an ad delivered by the defendant's advertisement in a legal journal. The defendant was looking for their legal department "Initially limited to one year (n) young (s) involved (n) A jurist / qualified lawyers. The applicant received a rejection, without having been invited for an interview. Set was a 33-year lawyer. The applicant has asked the defendant for an unlawful discrimination because of his age, compensation in the amount of EUR 25,000.00 and damages amounting an annual salary.
The Labour Court has sentenced the defendant to pay a compensation of one month's salary, and dismissed the action for the rest. That court rejected the arguments of the plaintiff and the cross-appeal by the defendant. The Senate has confirmed the ruling of the Labour Court. The vacancy of the defendants violated § 11 of the General Equal Treatment Act (AGG), which prohibits that a unit in violation of the prohibition of discrimination § 7 AGG is announced. Thereafter, agencies and others. "Age-neutral" can compete, if not justify meaning. § 10 AGG is present for different treatment on grounds of age. The improper vacancy is an index that proves that the applicant was not hired because of his age. Since the defendant could not demonstrate that no breach been submitted to the prohibition of discrimination has a right to compensation, the plaintiff to. The amount fixed by the Regional Labor Court in revision is not legally objectionable manner. Since the applicant has not demonstrated and proved that he had been recruited at a non-discriminatory selection of the defendant, he is the alleged claim for damages equal to one year's salary (not to the Federal Labour Court, decision of 19 August 2010 -. 8 AZR 530/09 )
Source: Federal Labour Court Press Release No. 64/10