§ 5 AGG permits unequal treatment under certain circumstances, if by doing so, existing factual or structural disadvantages concerning groups of people with features referred to under § 1 AGG are prevented or compensated for. This provision is thus a ground for justification.

In general, this means that the measure taken must always refer to one of the grounds listed in § 1 AGG.

Positive Action can be distinguished between so-called “weak” and “strong”, as well as “soft” and “hard” measures. These differences will be illustrated by examples from the employment field. 

The model “weak/strong” differentiates between the purposes of the measure. Weak measures aim to achieve more equal opportunities. However, they do not aim for actual equality. Strong measures, in contrast, do aim for actual equality of results. A recruiting campaign that targets juveniles with a migration background is, for instance, a weak measure. Preferably hiring women instead of men with the same qualifications can though be viewed as a strong measure. 

The model “soft/hard” differentiates along the lines of the intensity of the measure. Weak measures do not restrict the rights of members of privileged groups. By granting scholarships for women only, for example, this weak measure aims to change the framework and to oppose the underrepresentation of disadvantaged groups. Hard measures, by contrast, have a direct effect on the rights of members of privileged groups. Measures that prefer female applicants over male applicants are permissible according to the European Court of Justice. Noteworthy examples are the “gender quota” as well as filling educational training spots with only persons with disabilities – disability being a criterion instead of a disadvantage. 

The scope of § 5 AGG is not limited to certain fields, but is applicable to all fields referred to under § 2 AGG. This dossier may further inform you about the situation (Tatbestand) and the relevant case law for § 5 AGG.