§ 5 AGG allows the application of so called “positive action”. These are measures in which disadvantaged groups are given preference where there is evidence of an actual inequality, i.e. where there are disadvantaged or underrepresented groups from existing or previous discriminatory practices. An analysis of the AGG(in German) has shown that regulations which (only) permit the implementation of affirmative action is capable of creating the necessary protection of rights regarding possible infringements on the prohibition of discrimination. Unfortunately, it is insufficient to deconstruct systematic discrimination in order to achieve equality. Recommendations from BUG for a supplement of § 5 can be found here.

Similar to positive action, are so-called public sector duties (Gleichbehandlungsverpflichtungen) which attempt to prevent discrimination. So far, they have not been anticipated by the AGG. Suggestions for the elaboration of public sector duty legislation can be found here.