Discrimination of severely disabled persons due to procedural errors

Public employers have special obligations under social law in application procedures.
Discrimination within the meaning of the AGG (General Equal Treatment Act) is regularly presumed if public employers disregard regulations that concern procedural or promotional obligations in favour of severely disabled persons.

The ruling of the Federal Labour Court of 25 November 2021 was based on a case in which a municipality wanted to fill a management position in the legal and municipal office.
The plaintiff, a lawyer, had applied for the position in 2017, citing his severe disability, but had not received an invitation to an interview. He was only informed that the municipality had decided in favour of another applicant.

The man then sued for compensation because he felt discriminated against on the grounds of his severe disability due to the lack of an interview. After the plaintiff had been unsuccessful in the first two instances, the Federal Labour Court now confirmed his view. The municipality should not only have invited the lawyer to an interview because of his severe disability, but should also have notified the Federal Employment Agency of the vacancy in good time in accordance with the procedural regulations.

The municipality had not fulfilled both obligations. The fact that the Federal Employment Agency was later prompted by the employer to publish the vacancy on the job exchange could not undo the failure to notify early. The Federal Labour Court therefore ordered the municipality to pay the plaintiff appropriate compensation for the violations of the General Equal Treatment Act (AGG).

Among other things, the AGG places severely disabled persons under special protection. Disadvantages are to be prevented or eliminated. Public employers also have special obligations towards severely disabled persons. These include, for example, the obligation to invite them to an interview if the applicant’s professional aptitude is not obviously lacking (§ 165 SGB IX). With this ruling, the Federal Labour Court has once again clarified that violations of procedural or promotional obligations are to be sanctioned by means of compensation or damages under section 15 AGG.

Author: Patrick Stumpp