Abusive conduct?
No compensation under AGG
A man who intentionally applies for positions advertised nationwide for "secretaries (female)" without a genuine intention to undertake the advertised roles but solely with the aim of achieving a "substantial profit" through compensation claims acts in an abusive manner. Such conduct does not establish a claim for compensation on the grounds of gender discrimination, as ruled by the Federal Labour Court (BAG) in its reasoning published on 16th December 2024 (verdict of September 19th, 2024 – 8 AZR 21/24).
*where only the masculine form is mentioned in this article, the feminine / diverse form is also included
BAG, verdict of 19th September 2024 - 8 AZR 21/24
Facts of the case
The plaintiff (male) repeatedly applied nationwide for job postings explicitly targeted at "secretaries (female)" and submitted applications accordingly. Following rejection in the recruitment process, he consistently initiated compensation proceedings, claiming discrimination based on his gender. Within a period of 15 months, the plaintiff brought eleven cases of alleged gender-based discrimination before the Berlin Labor Court alone. In the present case, the plaintiff asserted a compensation claim of at least 6.000,00 EUR.
Reasons for the decision
The Federal Labor Court (BAG) concurs with the reasoning of the Regional Labor Court (LAG). The plaintiff’s claim for compensation is precluded by the decisive objection of abuse of rights. The lawsuit is unfounded, and the plaintiff is not entitled to the requested compensation under Section 15(2) of the General Act on Equal Treatment (AGG).
From the perspective of the BAG's 8th Senate, the LAG convincingly demonstrated that, based on a comprehensive assessment of the circumstances of the case, the plaintiff acted systematically and intentionally to gain financial advantage through compensation claims, without having a genuine interest in taking up the position advertised by the defendant.
The LAG cites a number of indicators supporting this assessment: The plaintiff is pursuing a full-time course of study, which he is unwilling to abandon; there is no intention to relocate to the workplace 170 kilometers away; and there is no explanation provided as to how the plaintiff envisioned commuting. Given the large number of applications submitted for "secretary (female)" positions across Germany and the subsequent compensation claims, there are significant doubts regarding the sincerity of his applications. Rather, this appears to be a systematic and targeted approach akin to a "business model," with the primary objective of generating income through compensation payments.
Pursuant to § 242 of the German Civil Code (BGB), rights or legal positions obtained or established through dishonest conduct are generally not worthy of protection. The assessment of the Regional Labor Court withstands scrutiny under the standards of appellate review.
Conclusion & practical tip
With its decision, the BAG strengthens the position of companies to effectively defend themselves against lawsuits filed by so-called "AGG-hoppers," whose only aim is to obtain compensation. Nevertheless, it is strongly recommended that employers ensure job advertisements are always gender-neutral and phrased in a manner that equally addresses men, women, and non-binary individuals. Such an approach helps to preemptively avoid compensation claims from the outset.
Author of this article: Janina Aue, Lawyer & Mediator
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