AGG Hopper failed – ArbG Düsseldorf doubts BAG case law

News on the subject of AGG-Hopper: The rejected application of a severely disabled lawyer was heard before the Düsseldorf Labor Court (ArbG). He had sued for around 75,000 euros in compensation due to alleged discrimination in the application process. However, the chamber dismissed the lawsuit because the man had no serious intention to apply. The special thing about the judgment: The ArbG decided contrary to the established case law of the Federal Labor Court (BAG) and at least questioned the previously valid employer obligations in connection with the consideration of severely disabled people in applications.

The case: severely disabled lawyer caught AGG hopping

The plaintiff is a severely disabled lawyer who has already brought compensation proceedings against several employers in the past for not being considered in his job application. In the current case, however, the court noticed some inconsistencies.

At first, the documentation of the application process was considered unusual: the plaintiff had apparently already created screenshots while preparing the application. According to the ruling, however, this behavior is “completely atypical” because real applicants would have no reason to take such photos. The chamber literally: “Apart from the suitability of introducing them into a later AGG process, the screen recordings made offer the plaintiff no benefit.”

The severe disability also seemed to have been intentionally only mentioned in confusing amounts of text. The evidence was hidden in a 17-page document as a short passage of text; However, a copy of the severely disabled person’s ID card is not simply attached to the application. The court saw this as intended for the employer to overlook the disability in order to justify the right to compensation.

Finally, according to the judgment, the plaintiff also committed a deception regarding his title: he described himself as “Dr. iur.”, although he only holds a US Juris Doctor (JD). However, this does not entitle you to use the academic title “Dr.” in Germany. The court also saw this as a deliberate provocation that the application would be rejected and in the judgment referred to him colloquially as a “classic AGG hopper”.

Previous jurisprudence is no longer up to date

Based on the facts at hand, the ArbG dismissed the lawsuit. This was also justified by the fact that the BAG’s previous case law was no longer up to date. This previously assumed that “a mere violation of § 164 I 1 and 2 SGB IX can give rise to the presumption of discrimination due to severe disability within the meaning of § 22 AGG”. This automatically assumes that employers who violate regulations intended to protect severely disabled people may have also discriminated against these people.

However, the adjudicating chamber considers this jurisprudence “to be no longer up to date in view of the changing application processes as a result of advanced digitalization and increasing networking in social media”. In addition, it is “wrong” for fundamental reasons and is not a necessary indication of discrimination against severely disabled people within the meaning of Section 22 AGG.

Digitalization has changed recruiting

Furthermore, the employer’s obligation to issue a special placement order to the Federal Employment Agency (BA) in accordance with Section 164 SGB IX before filling a position is no longer suitable for today’s modern and digital application processes.

According to the chamber, this rule comes from a time when companies advertised positions publicly and then waited for applications. Nowadays, however, recruiting processes are different. Companies now search for suitable candidates themselves and actively using recruiting, for example via platforms such as LinkedIn or Xing. There, HR specialists speak to potential applicants directly instead of waiting for incoming applications. That is why the BA often no longer has any placement function in highly qualified areas.

According to lawyer Dr. Stefan Steeger sees the ruling as sending “a strong signal to practice,” as he posted on the LinkedIn platform. According to him, the decision is not only an “absolute turnaround” but a huge step “to curb systematic abuse and put the focus back on true inclusion rather than purely formal compliance.”

Labor lawyer Dr. Alexander Bissels commented on the post and calls the judge’s ruling a “courageous decision”. He assumes that the case will end up at the state labor court and is “excited to see how the court positions itself in this context”.