Discrimination on grounds of Disability

In the second instance of ordinary jurisdiction, cases fall within the Regional Court's scope if the sum in dispute exceeds 5.000€. It therefore functions as a first instance which means that the Local Court’s (Amtsgericht AG) jurisdiction is invalid.

Should there be an appeal against the decision by a Local Court (AG), the Regional Court (LG) has jurisdiction as a “body of appeal”.

Rejection of a private hospital insurance

Higher Regional Court Karlsruhe, judgment of 27.05.2010 - 9 U 156/09

The plaintiff is the father of a 100% disabled child. As an insurance holder of the defendant, he applied for additional hospital insurance in favour of his child. This request was rejected by the defendant with regard to the illness of the child.

An insurer may include certain criteria into the decision of granting a private legal insurance. In the present case, however, it was questionable whether the defendant adduced a legitimate criterion.

The court assessed that the unequal treatment was justified according to § 20 par. 2 clause 3 AGG. The appeal of the plaintiff was dismissed.


Treatment for HIV infection denied

District Court of Stendal, judgment of 06.11.2013 - 21 O 240/12

The plaintiff is dark-skinned, gay, HIV-positive and was referred to the defendant’s emergency room due to severe pain. With reference to the plaintiff’s HIV infection, the attending senior physician refused to treat him accordingly and only prescribed an ointment, evading any further treatment. The plaintiff, still suffering from severe pain, then had to go to another hospital to be treated.
After the incident, the plaintiff reported the defendant’s behaviour to the Medical Association of Saxony-Anhalt. After their inquiry, the medical association stated that the refused examination was unfounded. Nevertheless, they did not take any professional action.

The defendant justified their rejection of any further investigation with regard to private autonomy. According to the defendant, the hospital did not have to conclude a medical treatment contract with the plaintiff since his medical condition did not constitute an emergency. Furthermore, the attending physician had grazes on his hands - he wanted to protect himself from contracting HIV.

The District Court of Stendal disagreed: a medical treatment contract had already been concluded by the plaintiff seeking treatment and the defendant examining the patient, albeit insufficiently. Moreover, the attending senior physician could have put on latex gloves to cover his grazes. The court further stated, "A patient must be confident that possible medical care in a hospital will actually be granted. This applies in particular to the plaintiff, who suffers from the immunodeficiency HIV and therefore has an unstable state of health. "

The court emphasized that the attending senior physician had deliberately discriminated against the plaintiff: "The ceasing of treatment offered by the defendant's senior physician was based on the plaintiff's affiliation to several marginalized social groups [...], namely that of foreigners, black people, homosexuals and HIV-infected persons ". The court referred to § 22 AGG to justify this finding. The ceasing of treatment was completely unacceptable, the court argued.

In accordance with Section 280 (1), subparagraph 611, 253 (2) of the German Civil Code, the plaintiff received compensation for damages in the amount of € 5.000, - EUR due to inadequate medical treatment.

BUG commented on the judgment as follows:

"It remains surprising that the plaintiff's lawyer did not argue on grounds of the General Equal Treatment act (AGG). The fact that the court invoked the AGG to justify the amount of compensation shows that a discrimination falling within the scope of the AGG took place.

We would also like to note that this constitutes a case of multiple discrimination. This judgment is only listed under the heading 'disability' for the sake of practicality, but could just as well be listed under the keywords 'sexual identity' or 'ethnic origin'. "

© Büro zur Umsetzung von Gleichbehandlung e.V. 2018