Although the AGG has been in force since 2006, there is little jurisprudence regarding § 5 AGG. In the following, two judgments shall be discussed, of which the former is from 2008 and the latter from 2014. These cases are both about the preferable recruitment of women and can thereby be compared well. By doing so, it can be demonstrated under which circumstances a measure is justified according to § 5 AGG or not.

Regional Labour Court Düsseldorf, 12.11.2008 Az. 12 Sa 1102/08 – (in German)

The Düsseldorf Regional Labour Court clarified in its guiding principle: “Does the public sector employer point out in an – otherwise gender neutral – job advertisement that “there is a particular interest in applications by women”, male applicants are not disadvantaged by this within the meaning of the AGG, if women are underrepresented in the reference group relevant for the vacancy”. (translated from German)

The State (Bundesland) of North Rhine-Westphalia used the wording “Sportlehrer*in im öffentlichen Dienst” (sports teacher in a public servant service) in the job advertisement. (The German language distinguishes between male and female forms of the same term, in this case sports teacher: a male sports teacher is called “Sportlehrer”, a female one “Sportlehrerin”. The enclosure of “*in” shall include the female form as well since in the mainstream language usage, normally only the male form is common.)
The male plaintiff applied for this job vacancy and was rejected. Instead, a female applicant was hired. She was evidently best able to convince with her aptitude in the job interview and was hired based on this result. The assessment standards were equal and were applied equally. The Court examined the legality of the job advertisement’s wording and focused thereby on Art 33 (2) German Basic Law that stipulates the principle of best selection in the public sector. Gender specific job advertisements are not to be objected if this is done in the course of Positive Action. With the passage in the advertisement “There is a particular interest in applications from women and severely disabled persons”, the public employer wishes to point out the legal duty to promote women in underrepresented fields. This was also recognisable to applicants. The Court further stated, “The note aims to promote women within the framework of legal order and permission. The principle of best selection is not questioned by either directly addressing qualified female applicants or indirectly selecting them from the larger number of female applicants, in light of the aim to increase women’s underrepresentation. The wording neither implicates an anticipated selection decision, nor provide a well-grounded assumption of male applicants that the principle of best selection will not be considered.” (translated from German) The wording was therefore qualified as permissible within the meaning of § 5 AGG.

Labour Court Berlin, 05.06.2014 Az. 42 Ca 1530/14(in German)

The Berlin Labour Court had to decide whether a preferred recruitment of women for internships was an appropriate and suitable measure to balance out the underrepresentation of women in leadership positions in the journalism sector. 

A newspaper that excluded men from applying for a traineeship - regardless of the individual circumstances – in their advertisement was sued. The Court decided that this may be a Positive Action within the meaning of § 5 AGG. However, this measure was deemed inappropriate and therefore violated the principle of proportionality. Furthermore, the Court doubted the suitability of this measure. Regarding the suitability, the Court considered that filling a traineeship vacancy affects the lowest position within the journalist professional career. By granting traineeship positions exclusively to women, the number of women in leadership positions can barely increase. In the meantime, the proportion of women in traineeships and occupational trainee positions is larger than men, therefore it can be expected that women will increasingly be considered in leadership positions in the future.  

Regardless of the suitability, the Court had significant doubts concerning the appropriateness of this measure. A measure is appropriate if it does not put a burden on the non-beneficiary group disproportionately. However, this is not the case when there is an obligatory, unconditional preference. Instead, a decision on a case-to-case basis is necessary. If the advertisement alone made clear that a case-to-case decision will not be made, the measure can barely be appropriate. For this reason, the measure was deemed disproportionate and thus unjustifiable. Regarding the compensation payment to the plaintiff, in cases of such advertisements, the Court took the severity of the § 5 AGG violations into account.