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BAG: Discrimination against pregnant women in promotion: An presumption no strict rules are put

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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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!

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LAG Schleswig-Holstein: workers have also disability pension at the time entitled to vacation

The reference time of retirement because of disability does not prevent the emergence of leave. Therefore, there arises year after year, the statutory minimum holiday entitlement and the statutory additional leave for severely disabled people. The leave entitlement can not be forfeited at the end of the transmission period of § 7 para 3 BUrlG. The three-year limitation period begins not arise in each leave year, but only after termination of employment.

The facts:
The severely disabled claimant was employed in public service. Since 2004, he was unable to work sick. From November 2004 he was retroactively initially until 31.07.2009 granted a full pension for reduced earning capacity. He subsequently received a life pension and retired at the end of 31.03.2009 from the employment relationship.
adopted in the present case the plaintiff to his former employer on settlement of his leave for the years 2005 until his retirement in 2009 to complete. Specifically, he demanded payment for the non-statutory holiday in that time taken for the additional leave for the disabled and to some extent for the collective agreement holiday. The Labour Court dismissed the action, the LAG gave her place predominantly, however, was the revision to.

The reasons: The claimant was
for the period at issue, both the statutory holiday and the additional leave is too severely disabled. Only the claimed for 2009, was not above the law beyond additional tariff holiday. The results from § 26, para 2c TVöD, after which the duration of the tariff in the rest leave employment for each full calendar month less one-twelfth.

The right to statutory leave and additional leave has been created. Currently, the law does not provide that the annual leave will be reduced for the time of receiving a temporary disability pension can. As long as a corresponding control is absent, it remains with the unabridged right to leave.

In case of dispute the holiday entitlement is not forfeited. If the holiday - as here - just because of the temporary full disability can not be taken, the claim is not forfeited to 31.3. of the subsequent year. The claims of the plaintiff are not barred in whole or in part. The course of the three-year limitation period begins not in the particular leave year, resulting in the claims, but only after termination of employment.

This result may be quite politically suspect. These concerns can not resolve the case, so far is Rather, the legislature asked.

(LAG Schleswig-Holstein Judgement of 12/16/2010, 4 Sa 209/10)


The background: The LAG
Schleswig-Holstein has with the ruling on the current position in the labor courts highly contentious issue for the first time and refer to action for legislators. It has approved the revision to the BAG. There were already several parallelism of lawsuits from other state labor jurisdictions with different results and reasoning are pending.

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LAG Dusseldorf: After age staggered holiday entitlement of the prohibition of age discrimination

The differentiated by age leave entitlements in the collective agreement of the retail sector in the state of North Rhine-Westphalia violate the prohibition of age discrimination. This was decided by the Regional Labour Court of North Rhine-Westphalia. The now 24 year old

plaintiff in the underlying dispute is employed as a retail clerk at a retail chain. The employment relationship is governed by the collective bargaining agreement Retail North Rhine-Westphalia, after which the annual leave entitlement is graded on a 6-day week based on age as follows:
until the age of 20 Age of 30 days holiday
after the age of 20 Age of 32 vacation days
after the age of 23rd Age of 34 vacation days
after the age of 30 Age of 36 leave days

That court has such Dusseldorf The lower court recognized that the applicant is discriminated against by the scheme because of their age. The distinctive to the age rule is not justified under § 10 of the General Equal Treatment Act. There is a lack of a legitimate target for such unequal treatment found in the collective agreement or in the context of approval. This particularly applies to the argument put forward by the employer argument that the scheme is to combine family and career are encouraged.

That court has determined that the applicant, the states, for the agreed scheme, only 34 vacation days for violating the prohibition on age discrimination may take 36 vacation days per year. This approximation follows up against the existing tariff regulation from the principle of effective and efficient enforcement of EU law requirements. The revision is approved.
(LAG Dusseldorf, 8 Sat 1274/10, decision of 01.18.2011)