The relevant case law on Positive Action under SGB IX refers primarily to the duty of employment under § 71 SGB IX and the special obligations of public employers under § 82 SGB IX.

The Federal Labour Court has made it clear that an applicant with a severe disability can only invoke the Positive Action of SGB IX if the employer has been informed of the severe disability (file number 8 AZR 650/12). This disclosure is necessary for every new application, a reference to a previous disclosure is not sufficient (file number 5 SA 1346/13).

According to the Federal Administrative Court (file number 5 C20. 12), transfer companies, which provide training and further placement for employees threatened by unemployment, are also subject to the employment obligation under the SGB IX. If they do not fulfil the employment obligation, they are obliged to pay the corresponding compensatory fee. The Regional Social Court of North Rhine-Westphalia also confirmed this obligation for companies that were founded under German law but work mainly abroad (file number L 16 (1) AL 21/09).

Public employers’ special obligation is interpreted very narrowly by the Federal Labour Court. Public employers are generally obliged to examine if the job advertised is suitable for people with severe disabilities and, if so, they are obliged to invite them to an interview. This invitation is not necessary only if the applicant has no objectively suitable qualification. The qualification must be assessed according to the criteria in the job advertisement (9 AZR 431/08).

If an applicant with the appropriate qualification is not invited, this can already be considered discriminatory in line with the AGG (8 AZR 608/10).

In principle, private and public employers must justify the rejection of an applicant with a severe disability. If this obligation to provide reasons for the rejection is violated, discrimination can be assumed on this basis alone. This presumption can only be refuted if the employer has complied with the obligatory quota (8 AZR 180/12).